[00:00:00] Speaker 01:
Our argument this morning is 19-2447, KPN vs. Vidal.

[00:00:06] Speaker 01:
Mr. Wood, whenever you're ready.

[00:00:07] Speaker 01:
I didn't even try to pronounce the name.

[00:00:15] Speaker 03:
Thank you, Your Honor.

[00:00:17] Speaker 03:
May it please the Court.

[00:00:18] Speaker 03:
My name is Keith Wood, and together with my colleague Samuel Sussman, I represent the appellant KPN in this appeal.

[00:00:26] Speaker 03:
There were several errors by the board that resulted in a final written decision that is not supported by substantial evidence or the law.

[00:00:34] Speaker 03:
In this oral argument today, I will highlight three aspects of the board's decision that we believe most clearly show there were errors made by the board.

[00:00:44] Speaker 03:
First, the board in its decision clearly and explicitly misread claim 33.

[00:00:49] Speaker 03:
And in its decision, the board misstated the claim language of that claim as being the same as that of claim 31.

[00:00:58] Speaker 03:
The board clearly did not appreciate a key difference in claim language between claims 31 and 33.

[00:01:02] Speaker 04:
Are we talking about if and responsive to?

[00:01:04] Speaker 03:
Yes, Your Honor.

[00:01:05] Speaker 04:
And you in your brief said responsive to are different words from the word if.

[00:01:10] Speaker 04:
Yes, that's absolutely correct, Your Honor.

[00:01:12] Speaker 04:
And they have clearly their own separate meaning.

[00:01:14] Speaker 04:
That's right, Your Honor, yes.

[00:01:15] Speaker 04:
But then you didn't give us the punch line of what is in fact that separate meaning.

[00:01:19] Speaker 04:
What could it possibly mean other than if?

[00:01:21] Speaker 03:
Yeah, well, yes, your honor.

[00:01:22] Speaker 03:
We believe that these two terms, just under their plain and ordinary meaning, which was what the board applied, are very different terms.

[00:01:28] Speaker 03:
They're plainly different.

[00:01:29] Speaker 03:
You know, if I say, if I give you a sentence like, if it's raining outside, my windows are closed.

[00:01:34] Speaker 03:
That's one statement.

[00:01:36] Speaker 03:
Let's say I say responsive to it raining outside, I close my windows.

[00:01:41] Speaker 03:
You'd expect something different to happen when it starts raining, because I'd respond to the rain.

[00:01:47] Speaker 03:
You'd see someone get up and close the window.

[00:01:48] Speaker 03:
And the same thing applies in this case.

[00:01:50] Speaker 03:
We believe that the language responsive to makes even more of a difference with respect to the Aubhan reference.

[00:01:57] Speaker 03:
Aubhan does nothing responsive to the good till time in making an access decision.

[00:02:05] Speaker 03:
And so yes, the differences in language between these two terms are plain.

[00:02:11] Speaker 04:
Okay, so if we agree with the board that claim 31 is unpatentable, then what's the daylight in your view that where we could find claim 33 is okay?

[00:02:28] Speaker 03:
Yes, Your Honor.

[00:02:28] Speaker 03:
So although we believe the claim 31 is patentable, there is daylight between the two.

[00:02:33] Speaker 03:
And the difference is in that responsive two.

[00:02:36] Speaker 03:
So there's a response, sort of like a causal relationship between the input, the thing you're getting, and what you do in response.

[00:02:44] Speaker 03:
So in the on-hand reference, this good till time is used to- Can we just go back to the claims?

[00:02:50] Speaker 04:
Yes.

[00:02:50] Speaker 04:
Claim 31 says,

[00:02:53] Speaker 04:
You deny the terminal access if the access request is received within the time period, right?

[00:03:00] Speaker 04:
Yes, Your Honor.

[00:03:01] Speaker 04:
Claim 33 says denying the terminal access responsive to the access request being received within the time period.

[00:03:10] Speaker 04:
Yes, Your Honor.

[00:03:12] Speaker 04:
What's the day like?

[00:03:13] Speaker 04:
Because I'm going to be honest, I see none.

[00:03:16] Speaker 03:
It's the act, it's the responding to.

[00:03:18] Speaker 03:
So if has a sense of sort of like if a condition is satisfied.

[00:03:23] Speaker 03:
So this condition may or might be satisfied if

[00:03:26] Speaker 03:
if there's no responding.

[00:03:28] Speaker 03:
But is this responsive to, that means that there's a causal relationship between receiving the request and then taking the act of denying it.

[00:03:39] Speaker 03:
So you'd expect to see even more from this claim than you would from claim 31.

[00:03:47] Speaker 03:
And we see this actually in the Omhand reference, in the specifics of the reference.

[00:03:50] Speaker 03:
So we have figure 9B is what is relied upon by the appellee and is relied upon by the board in its decisions, the evidence that it has.

[00:04:00] Speaker 03:
And there's this good till time in it.

[00:04:02] Speaker 03:
And the good till time is a time stamp to do with the validity of some data in a table related to a geographic corridor.

[00:04:10] Speaker 03:
And that time stamp, it's just a validity time for this data, is not used in the access decision when deciding whether to give access to the network.

[00:04:20] Speaker 03:
So this claim talks about denying access responsive to.

[00:04:24] Speaker 03:
And that good till time is not at all involved in that.

[00:04:26] Speaker 03:
And the board didn't have any evidence of that.

[00:04:29] Speaker 03:
The board found otherwise, though.

[00:04:30] Speaker 04:
The board found that the good till time is necessarily and logically part of the decision-making process in whether to grant

[00:04:39] Speaker 03:
Yes, that's correct.

[00:04:41] Speaker 03:
Thank you.

[00:04:42] Speaker 03:
Thank you.

[00:04:42] Speaker 03:
I guess that the board did decide that it matters when the request is being made.

[00:04:50] Speaker 04:
and for a given corridor and for a given subscriber.

[00:04:55] Speaker 04:
What class is the subscriber?

[00:04:58] Speaker 04:
What corridor are we in?

[00:05:00] Speaker 04:
What's the good till time?

[00:05:01] Speaker 04:
You need all three of those elements in order to make a decision, do you not?

[00:05:05] Speaker 03:
Well, actually, no, Your Honor, that's not the way that the Aubhan reference makes decisions about access.

[00:05:11] Speaker 03:
What Aubhan does is just look at the class.

[00:05:14] Speaker 03:
Just look at the access class for this geographic corridor and the access class of the terminal.

[00:05:20] Speaker 03:
and say, is that a high enough class?

[00:05:22] Speaker 03:
That's all it does.

[00:05:23] Speaker 03:
So the good till time is sitting out there at some time, one single timestamp saying, you know, next time you're updating, you might update that table.

[00:05:31] Speaker 04:
So it's only valid up until the expiration of the good till time, right?

[00:05:36] Speaker 03:
Yes, that's true.

[00:05:37] Speaker 03:
But then the terminal might move.

[00:05:39] Speaker 03:
So the terminal might move to another geographic corridor.

[00:05:41] Speaker 03:
So that good till time just has nothing to do with that argument to the board, this switching corridor idea.

[00:05:49] Speaker 04:
Because I didn't see it.

[00:05:51] Speaker 03:
Well, Your Honor, it's implicit in the board's decision where they're basing their decision based on Figure 9B, the minimum access class being the same as, you know, comparing the minimum access class.

[00:06:01] Speaker 03:
And they say that access denied if you're below the minimum access class.

[00:06:06] Speaker 03:
And again, Your Honor, the way that OB-HAN works is by looking only at the minimum access class to decide access.

[00:06:15] Speaker 03:
It just isn't considered.

[00:06:17] Speaker 04:
There's no there's no evidence for that good till time is consulted That the board simply had no evidence realize we can't you can't sit here and relitigate the facts This IPR.

[00:06:29] Speaker 04:
This is a warning to all the lawyers in the room You know, we this is a federal appellate court and we're we're looking for legal errors or we're looking for

[00:06:41] Speaker 04:
Fact findings, they're just totally unreasonable.

[00:06:44] Speaker 02:
Yes.

[00:06:45] Speaker 04:
And in the end, everything else is really within the scope of the fact finders duties, the board tribunal, to make the call on a lot of these nitty gritty items that you're asking us to confront and get on our elbows and knees and walk through or crawl through.

[00:07:07] Speaker 03:
Yes, thank you, Your Honor.

[00:07:08] Speaker 03:
And we believe that this first error relating to responsive to is one of those, because you have the board in its decision actually saying the claim 33 says if, and it doesn't.

[00:07:18] Speaker 03:
That's an error.

[00:07:18] Speaker 03:
The board didn't even get to analyze the plain and ordinary meaning of responsive to.

[00:07:24] Speaker 03:
And so the board simply misread the claim.

[00:07:26] Speaker 03:
And because of this, the decision should be remanded so that the board can look at what the plain and ordinary meaning of responsive is, responsive to, relative to the offhand reference.

[00:07:35] Speaker 03:
So that, Your Honor, we would submit is an error.

[00:07:38] Speaker 04:
But is there somewhere in your briefing where you clearly explained what's the daylight between responsive to and the word if and claim 31 and why, therefore that makes a difference.

[00:07:49] Speaker 04:
Yes, Your Honor.

[00:07:50] Speaker 04:
Therefore it's not harmless error, it's harmful error.

[00:07:53] Speaker 03:
Yes.

[00:07:53] Speaker 03:
Thank you, Your Honor.

[00:07:54] Speaker 03:
So on this question, if you look at appendix 1498,

[00:08:00] Speaker 03:
KPN did argue relative to what responsive to means.

[00:08:04] Speaker 03:
KPN quoted the claim language responsive to.

[00:08:08] Speaker 03:
We analyzed how Aubhan did not teach it.

[00:08:10] Speaker 03:
And this is contrary to what Appellee said in his brief.

[00:08:12] Speaker 03:
Appellee said, well, KPN treated those two terms the same.

[00:08:16] Speaker 03:
That's not actually so.

[00:08:17] Speaker 03:
If you look at Appendix 1498, we analyzed the term responsive to just under its full meaning.

[00:08:22] Speaker 03:
We get the language, and we say why it's not met in Aubhan.

[00:08:25] Speaker 03:
So it's not as if we're pointing to the claim as being the same as if.

[00:08:29] Speaker 03:
And we believe that the board should also look at the actual language, which says response it to, and analyze OB-HEN under that.

[00:08:42] Speaker 02:
Could you say something about motivation to combine real quick?

[00:08:45] Speaker 02:
Yes.

[00:08:45] Speaker 02:
Especially the issue concerning security and granularity.

[00:08:51] Speaker 02:
Thank you, Your Honor.

[00:08:51] Speaker 03:
Yes.

[00:08:53] Speaker 03:
The second point, which I'd like to highlight today, Your Honor, and in response to Your Honor's question,

[00:08:58] Speaker 03:
The board improperly relied on a motivation to combine the Aubhan and Schatzkamer references that was not advanced by an argument of a party.

[00:09:07] Speaker 03:
In the petition, the petitioner had proposed modifying Aubhan with Schatzkamer to, quote, provide more flexibility and increase the resolution of Aubhan's access control operations.

[00:09:19] Speaker 03:
However, in its decision, the board decided on its own motivation to, quote, allow for increased granularity to provide better network security while still allowing for Aubhan's macro level access control methodology.

[00:09:33] Speaker 03:
This is at appendix 34.

[00:09:35] Speaker 03:
The motivation to provide better network security was not provided by the petitioner.

[00:09:41] Speaker 03:
It was provided by the board itself, first in its institution decision and then confirmed.

[00:09:46] Speaker 02:
The petition does cite security as the basis for motivation to combine.

[00:09:51] Speaker 03:
I would respectfully disagree, Your Honor.

[00:09:54] Speaker 03:
For the motivation to combine, Your Honor, the petitioner is relying upon increasing flexibility and increasing the resolution of Ophan's access control operations.

[00:10:04] Speaker 03:
This is at Appendix 233.

[00:10:06] Speaker 03:
So providing better network security was not provided by the petitioner.

[00:10:13] Speaker 03:
And the board in its final written decision actually admitted, it said, that its statement, quote, with respect to providing better network security was not meant to be representative of appellee's argument.

[00:10:25] Speaker 03:
Rather, it was meant to supply our reasoning as to why we, the board, were persuaded that increased granularity is a sufficient reason

[00:10:34] Speaker 03:
to support the legal conclusion of obviousness.

[00:10:37] Speaker 04:
What about when the board just talks about increasing granularity at A-15 as being a sufficient rationale to support the legal conclusion of obviousness?

[00:10:47] Speaker 04:
And then it cites and quotes both the petition and the petitioner's expert about increasing granularity to provide finer and more specific access control.

[00:11:00] Speaker 04:
Yeah, so your honor.

[00:11:03] Speaker 04:
you know, multitudes of terminals that are requesting network access.

[00:11:07] Speaker 03:
Yes, sir.

[00:11:08] Speaker 03:
So, increasing granularity is emphatically not a motivation in its own right.

[00:11:13] Speaker 03:
If you, there's no, simply no motivation to replace a simple class identifier with a list of a million terminal identifiers.

[00:11:20] Speaker 04:
Did your side during the oral argument in front of the patent board talk about how increased granularity could be beneficial?

[00:11:27] Speaker 04:
It's a possible motivation in terms of granularity?

[00:11:31] Speaker 03:
In fact, Your Honor, no.

[00:11:35] Speaker 03:
No?

[00:11:35] Speaker 03:
Council at oral argument was actually saying.

[00:11:39] Speaker 04:
I'm misreading these quotes?

[00:11:40] Speaker 03:
Yeah.

[00:11:41] Speaker 03:
So if you look, turning to say appendix 4155, council was saying, I don't think that was the argument petitioners made, but I will entertain it.

[00:11:51] Speaker 03:
And so the important thing here is that increase in granularity may or may not be a motivation for anything.

[00:11:56] Speaker 03:
In some contexts, it can be a motivation.

[00:11:59] Speaker 03:
In others, it is not.

[00:12:01] Speaker 03:
It might be computationally expensive.

[00:12:03] Speaker 03:
It might actually decrease security to take these million terminal identifiers and take them outside of the home location register and put them in an access block.

[00:12:11] Speaker 03:
It all depends on context.

[00:12:13] Speaker 03:
And so council was entertaining a hypothetical that was not an argument that petitioner made.

[00:12:18] Speaker 03:
and said, I think it's a bit hard for me in the abstract, so I would say I don't feel there's a motivation to combine.

[00:12:25] Speaker 03:
This is appendix 4159.

[00:12:28] Speaker 03:
So it all depends on the context with whether increasing granularity in the abstract would be a motivation to combine.

[00:12:34] Speaker 03:
And here, there is no evidence that it is, and the board felt the need to supply its own reason, that essence of the motivation to combine, the why, the reason why there's a motivation to combine.

[00:12:45] Speaker 03:
The board supplied it itself to provide better network security.

[00:12:50] Speaker 01:
You're into your rebuttal time, so I want to hear from the other side.

[00:12:54] Speaker 03:
Thank you, Your Honor.

[00:13:15] Speaker 00:
Good morning, Your Honors, and may it please the Court, Peter Ayers, on behalf of the Honorable Katherine Fidal.

[00:13:21] Speaker 00:
Let me start, if I will, with the motivation to combine, Judge Raina, that you raised, and my colleague on the other side finished with.

[00:13:32] Speaker 00:
As Judge Chen recognized, this issue, like the others that they raised, are reviewed for substantial evidence.

[00:13:41] Speaker 01:
Can you respond to his arguments, one, that the petition did not include granularity and the board came up with it on its own, and two, the second?

[00:13:53] Speaker 00:
Certainly, Your Honor.

[00:13:54] Speaker 00:
I think their argument is that the petition didn't rely on increased security.

[00:14:04] Speaker 00:
And we would even concede that point, because the board

[00:14:08] Speaker 00:
made clear that it didn't need to rely on increased security in order to find a motivation to combine, because increased granularity and the flexibility that that brings with it was sufficient, and that's at APPX 34.

[00:14:27] Speaker 00:
And my friend on the other side mentioned that

[00:14:30] Speaker 00:
that this is just merely insufficient, I guess, because it's too generic a motivation.

[00:14:36] Speaker 00:
But he acknowledged that it all depends on the context.

[00:14:40] Speaker 00:
And what I would like is to turn the court to that context, namely Oban.

[00:14:47] Speaker 00:
And Oban itself discusses granularity.

[00:14:51] Speaker 00:
So granularity in this context is an important consideration.

[00:14:56] Speaker 00:
And I would point the court to APPX 1173, where describing the difference between figure 9A and 9B, it refers to fixed ACB, that's figure 9A, has a finer level of granularity and is meant for fixed services.

[00:15:16] Speaker 00:
So this is precisely the context in which granularity is important.

[00:15:22] Speaker 00:
And that is why Petitioner relied on it in this case.

[00:15:27] Speaker 00:
And that motivation is clearly supported by substantial evidence, not only Obon, but Schatzkammar.

[00:15:35] Speaker 00:
In addition, their expert relied on their expert testimony, which the board found.

[00:15:42] Speaker 00:
So we think that there's clearly a reasonable basis for the court

[00:15:47] Speaker 00:
or for the board to have found a motivation to combine?

[00:15:51] Speaker 04:
Do you think, though, it was a bit confusing and maybe wrong-headed for the board to unilaterally introduce the idea of increasing network security into the rationale when the rationale was only about increased granularity?

[00:16:05] Speaker 04:
And I assume increased granularity means customization on a terminal-by-terminal basis for deciding whether to deny a grant access for terminals.

[00:16:17] Speaker 00:
I think in hindsight it would have been preferable if the board hadn't gone that far.

[00:16:22] Speaker 00:
I think perhaps the board was trying to provide this court to the extent it was appealed with its reasoning and the reasonable inferences it was drawing.

[00:16:32] Speaker 00:
Because what it said in its decision was that, and here is an example of how increased granularity could be beneficial.

[00:16:40] Speaker 00:
Namely, you could create a list now

[00:16:44] Speaker 00:
essentially a blacklist like it's described in Schatzhammer, and you could provide, you know, it could be used for increased security.

[00:16:52] Speaker 00:
But I would agree it's not necessarily the model of clarity, but it, you know,

[00:16:58] Speaker 00:
Clearly, the board went to great lengths to respond directly to petitioners' argument that it was relying on increased security as the motivation to combine, which it was clearly not.

[00:17:14] Speaker 00:
With respect to the first issue that my friend raised, Your Honor, I think has it exactly right that there's just no daylight between claims 33 and 31.

[00:17:27] Speaker 00:
material difference between if and responsive to.

[00:17:32] Speaker 00:
Both of those limitations are merely temporal in scope and there's not a causal relationship even though it uses responsive.

[00:17:42] Speaker 00:
It's that the access request must be received within the time period.

[00:17:48] Speaker 00:
So both the if clause in claim 31 and the responsive clause in claim 33.

[00:17:55] Speaker 00:
do the same work in those claims and fall together.

[00:17:59] Speaker 00:
If I could just touch on the good till time.

[00:18:05] Speaker 00:
The board just disagreed with the patent owner on its use within OBON.

[00:18:12] Speaker 00:
That is clearly supported as Judge Chen recognized that all of the data in the ACB is consulted in making these deny access determinations and that's described in NOBON and therefore is described

[00:18:34] Speaker 00:
or is supported by substantial evidence.

[00:18:39] Speaker 00:
Happy to answer any other questions that the court might have, otherwise I'll yield back my time.

[00:18:44] Speaker 00:
Thank you.

[00:19:12] Speaker 03:
Thank you, Your Honors.

[00:19:14] Speaker 03:
So in rebuttal, I'd like to touch on a few points relative to what my friend Council said.

[00:19:22] Speaker 03:
Your Honor, the Board, in saying that increased granularity is a sufficient motivation to combine,

[00:19:30] Speaker 03:
proceeds in the following sentences to say that it was meant to supply our reasoning.

[00:19:35] Speaker 03:
And so, in fact, this is the essence of what the Board thought was the motivation to combine was this network security which was supplying its reasoning.

[00:19:46] Speaker 03:
And as far as the context, this statement that Obhan teaches granularity, the Board did not rely on that.

[00:19:53] Speaker 03:
And the petitioner did not make that argument.

[00:19:57] Speaker 03:
So this is not an issue.

[00:19:59] Speaker 04:
Do you read 815 differently than I do?

[00:20:03] Speaker 03:
Your Honor, the board conceded that Aubhan uses class identifiers for its access decision.

[00:20:11] Speaker 04:
So it was conceding, and petitioner also, that 815 says, well, the board is finding that increasing granularity to provide finer and more specific access control, quote unquote,

[00:20:23] Speaker 04:
is adequate rationale to support this conclusion.

[00:20:29] Speaker 03:
Yes, it makes that statement.

[00:20:32] Speaker 04:
The point to me is, to whatever extent the board went on some kind of extra-curricular journey with increased network security,

[00:20:41] Speaker 04:
It did come home and talk specifically and devote an analysis to just increasing granularity.

[00:20:48] Speaker 03:
Well, yes, it made that statement that increased granularity was sufficient, but it didn't provide any supporting evidence in support of that.

[00:20:55] Speaker 03:
So the essence of its motivation to combine, the reason to combine those references was this providing better network security.

[00:21:04] Speaker 03:
And we have the board admitting that, excuse me, the director admitting that it would be preferable if the board didn't go in for that and that it's not the model of clarity.

[00:21:16] Speaker 03:
And regarding there being no daylight between responsive to and the term if,

[00:21:26] Speaker 03:
The board didn't explain that language.

[00:21:28] Speaker 03:
It did not try, it did not explain response it to.

[00:21:31] Speaker 03:
So that as well is not supported by evidence.

[00:21:36] Speaker 01:
Thank you.

[00:21:36] Speaker 01:
We thank both sides.

[00:21:37] Speaker 01:
The case is submitted.