[00:00:00] Speaker 01:
The next case is Bright Data versus Code 200-23-21-44.

[00:00:03] Speaker 01:
In your writing, Mr. Harkins.

[00:00:10] Speaker 02:
Thank you.

[00:00:11] Speaker 02:
May it please the court.

[00:00:13] Speaker 02:
Bright Data filed this appeal to correct incorrect claim constructions that were applied by the Patent Trial Appeal Board.

[00:00:21] Speaker 02:
And the board's constructions of the term client device and server

[00:00:26] Speaker 02:
unfortunately ignored the very problem and solution that was presented in the patents, the challenge patents in this case, and described in column two.

[00:00:37] Speaker 02:
We have one specification across all the patents.

[00:00:39] Speaker 02:
It's the same.

[00:00:40] Speaker 02:
The terms in the claims are the same.

[00:00:43] Speaker 02:
And the patents describe the problem.

[00:00:46] Speaker 02:
in column two.

[00:00:47] Speaker 02:
The problem is that proxies or proxy servers that are talked about in column two, line 10, I'm using the 342 patent for all my citations because that was the first of the IPRs, and so this is appendix 1159, talks about the use of servers.

[00:01:07] Speaker 02:
And it talks about them requesting data from web servers on behalf of clients.

[00:01:14] Speaker 02:
But there's a problem.

[00:01:15] Speaker 02:
And the problem that's identified is that servers are too expensive, and they're not practical to locate everywhere that you want them around the world so that they will be near the content that you're trying to obtain.

[00:01:28] Speaker 00:
So Counsel, Appellee's point to several instances in the spec that seem to suggest that a single device can serve different roles, depending on the particular connection.

[00:01:38] Speaker 00:
How does your construction account for those portions of the specification?

[00:01:44] Speaker 02:
Well, that's the solution, your honor.

[00:01:46] Speaker 02:
So, Judge Cunningham, you point this out, and I think it's exactly right.

[00:01:50] Speaker 02:
The way the patents, so a server is a commercial device.

[00:01:56] Speaker 02:
It is something you could, at the time, a person of score or skill could go to Fry's or some other place and go, say, I want to buy a server, and they would give you hardware, and that hardware was intended to be in a network and always on, okay?

[00:02:08] Speaker 02:
That was

[00:02:09] Speaker 02:
That's what a server was and client devices, which generally PCs or laptops or could be even a phone that were not intended to be in the middle of a corporate network.

[00:02:19] Speaker 02:
And that weren't always on.

[00:02:20] Speaker 02:
Those were the devices.

[00:02:21] Speaker 02:
That's what the devices meant.

[00:02:23] Speaker 02:
But there's also the hypertext transfer protocol.

[00:02:27] Speaker 02:
And that one example of that that's talked about in the patent is RFC 2616.

[00:02:31] Speaker 02:
And that talks about something called the client server model, which talks about the roles that different kinds of computers play.

[00:02:38] Speaker 00:
And so if a computer is asking for... So maybe can we go to column four, lines 41 to 53?

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

[00:02:45] Speaker 00:
Just to ground our discussion that we're having here.

[00:02:49] Speaker 00:
So when you get to that section... Right.

[00:02:58] Speaker 00:
Are you there?

[00:02:59] Speaker 00:
I am.

[00:03:00] Speaker 00:
And I'm in the 342 appendix, page 1160.

[00:03:03] Speaker 00:
When you get to that section, you can see a discussion about each communication device may serve as a client, peer, or agent.

[00:03:11] Speaker 00:
And to me, at least that portion is supportive of having constructions that are kind of role-based as opposed to hardware-based, which I think is what you were starting to describe to me.

[00:03:22] Speaker 00:
Why do you say that?

[00:03:23] Speaker 00:
I'm assuming you're saying that that is the incorrect.

[00:03:26] Speaker 00:
understanding of that portion of the specification.

[00:03:29] Speaker 00:
If you are a student, I want to know why you think that.

[00:03:32] Speaker 02:
So the idea of a role that something plays is different from what they're talking about is the communication device itself, which is the hardware.

[00:03:39] Speaker 02:
So what they do is they take what's being referred to in the claim as a client device, which it says right in the patent, and one of our arguments is lexicography, is a computer of a consumer.

[00:03:50] Speaker 02:
And this is not a commercial device.

[00:03:53] Speaker 02:
So the problem that's been identified is proxies are good.

[00:03:56] Speaker 02:
But they're expensive because they're in this commercial server hardware.

[00:04:00] Speaker 02:
And what we want to do is create a whole new network where instead of using commercial servers, we're going to use these communications devices, these client devices.

[00:04:11] Speaker 02:
And those devices are going to act as proxies instead.

[00:04:15] Speaker 02:
And the benefit of that.

[00:04:16] Speaker 00:
I'm still not certain you've answered my question.

[00:04:19] Speaker 00:
Oh, I'm sorry.

[00:04:19] Speaker 00:
I think I understand what you're trying to describe to me.

[00:04:21] Speaker 00:
And I think you're very much making

[00:04:23] Speaker 00:
a hardware-based argument.

[00:04:25] Speaker 00:
What I was seeing here in terms of COM4 is that it could be more of a role-based argument.

[00:04:31] Speaker 00:
And what I want to know is why you think that is incorrect, assuming you do think that's incorrect.

[00:04:37] Speaker 02:
The reason it's incorrect is because the whole point of this patent is to take one of these communications devices and use it in an unusual way that hasn't been done before.

[00:04:45] Speaker 02:
So it's actually taking on a different role.

[00:04:48] Speaker 02:
So these roles of client, peer, and agent, what it is, is you start with the client device.

[00:04:53] Speaker 02:
You start with the hardware.

[00:04:55] Speaker 02:
that is a PC or a laptop or something out in the world.

[00:04:58] Speaker 02:
And that's what you talked about in column two.

[00:05:01] Speaker 02:
Column two actually defines this at line 45 saying computers of consumers here in referred to as client devices.

[00:05:09] Speaker 02:
So it literally is saying I'm not using the server devices.

[00:05:13] Speaker 01:
Isn't that an awfully subtle way to be a lexicographer in the background of the investigation, in fact, or the invention, excuse me, in column two in the middle of a paragraph referring to a specific figure which is admittedly prior art that the inventor meant to carry that as a definition of client devices all the way through to the claims?

[00:05:36] Speaker 01:
Wouldn't that be an awfully subtle way to do it?

[00:05:40] Speaker 02:
What I will say about that is, when you say something is referred to as client devices blatantly with this type of language, referred to herein as, in the Kyocera-Senko case, that language was pointed to.

[00:05:56] Speaker 01:
Why would one of filmy art read as herein referred to, just to be limited to the discussion of the prior art, given the placement of the statement and the specific reference to the prior art figure?

[00:06:09] Speaker 02:
There is no difference in the way client devices are talked about in the prior art, as far as devices go, versus the prior art, versus the invention.

[00:06:17] Speaker 02:
It's consistent throughout the whole patent.

[00:06:19] Speaker 01:
There's just no... But to win the appeals, I understand your response to Judge Cunningham.

[00:06:24] Speaker 01:
You need us to say that client devices are a specific type of hardware.

[00:06:30] Speaker 01:
And it's not just any kind of hardware playing the role of client.

[00:06:34] Speaker 01:
Isn't that what you need us to say to win this appeal?

[00:06:37] Speaker 02:
That's correct.

[00:06:38] Speaker 02:
Because that's the solution that the patent, that's the problem is they say there's a specific kind of hardware.

[00:06:42] Speaker 01:
So the only way you get there, I think, but tell me if you have some other way, is if we read this sentence as lexicography.

[00:06:49] Speaker 01:
Otherwise, you have no way to get where you need to go.

[00:06:52] Speaker 02:
Well, with all due respect, Your Honor, I think there's several ways you get there.

[00:06:57] Speaker 02:
Lexicography would answer the question.

[00:06:59] Speaker 02:
So if you agree with this on lexicography, we're there.

[00:07:01] Speaker 01:
What's the other way?

[00:07:02] Speaker 02:
The other ways would include that there is prosecution history that says that a client device is not a server and a server is not a client.

[00:07:13] Speaker 02:
And that is something that in the original... Can you take us to that particular JAP so we can

[00:07:20] Speaker 00:
discuss further the prosecution history that you want to rely on for that point?

[00:07:24] Speaker 02:
OK.

[00:07:26] Speaker 02:
So in the area of appendix 3907 through 3934.

[00:07:30] Speaker 02:
3907?

[00:07:31] Speaker 00:
I'm going to need you to be more precise than that.

[00:07:38] Speaker 02:
So if we could turn to 3410, for example.

[00:07:41] Speaker 01:
3410?

[00:07:42] Speaker 01:
Yes.

[00:08:04] Speaker 02:
So here, in the discussion at 3410, in argument number one, in the discussion of Garcia, it says there's a clear distinction in the art and is taught by Garcia reference between clients and servers.

[00:08:18] Speaker 02:
Client devices, such as client 104 and the Garcia reference, are end units that request information from servers.

[00:08:24] Speaker 02:
And then this says at the end of that paragraph, as shown in Figure 2, a client device typically connects to the internet via an ISP using a single connection.

[00:08:35] Speaker 02:
That is a PC type of operation, not a commercial server.

[00:08:39] Speaker 02:
Then we go to B and it says, in contrast, server devices are known in the art to be dedicated devices to store information objects to be provided to clients upon request.

[00:08:49] Speaker 02:
That is, these are not the kind of devices that go on and offline the way it talks about client devices and communication devices in the patent.

[00:08:57] Speaker 02:
They are dedicated devices that stay in the network all the time, which is one of the reasons that they're so expensive and they don't have the flexibility of being everywhere all over the world.

[00:09:06] Speaker 02:
That's the problem, and the solution was that you're gonna use these client devices instead.

[00:09:11] Speaker 02:
So we're already distinguishing those things in 3410.

[00:09:14] Speaker 02:
Then at 3413, at the bottom of that page, it says, however, Garcia, reference in general,

[00:09:27] Speaker 02:
and the cited paragraph in particular are silent regarding selecting non-cash server in general, a non-server in particular, and further regarding selecting a client device as recited in this claim.

[00:09:41] Speaker 02:
That is, the client device is a non-server.

[00:09:45] Speaker 02:
It is not a server.

[00:09:47] Speaker 02:
These arguments were being made in the original prosecution here.

[00:09:51] Speaker 02:
That's how the claims were to get over the reference Garcia, which is not an issue here.

[00:09:57] Speaker 01:
There's a lot of prosecution history here.

[00:10:00] Speaker 01:
The red brief at 33 to 34 takes us to the 614 patent, column 119.

[00:10:07] Speaker 01:
It's at page 18748.

[00:10:11] Speaker 01:
I'm sorry, you're on the chair.

[00:10:12] Speaker 02:
Should I take a note on this?

[00:10:13] Speaker 01:
Yeah, 18748.

[00:10:15] Speaker 01:
It's the 614 patent, which I think is in the family here.

[00:10:20] Speaker 01:
Column 119, round lines 18 to 20.

[00:10:23] Speaker 01:
Alternatively, or in addition, each of the devices denoted herein as servers

[00:10:29] Speaker 01:
may equally function as a client in the meaning of client slash server architecture.

[00:10:36] Speaker 01:
How does that fit into your argument?

[00:10:38] Speaker 02:
So the 614 is a different patent family.

[00:10:42] Speaker 02:
It doesn't claim priority back to these patents.

[00:10:45] Speaker 02:
It has a whole different specification.

[00:10:48] Speaker 02:
And in that patent, it talks about, in that system that's talked about in the other patent that's not at issue here today, that different devices can be used interchangeably for that invention that they're talking about.

[00:11:02] Speaker 02:
So it's basically what they're saying there.

[00:11:05] Speaker 02:
And then in the figures of that patent, and I just don't have it pulled up in front of me, but in the figures of that patent, they actually

[00:11:11] Speaker 02:
the idea of pairing a client with a server, and they do show in the figures that there would be different devices.

[00:11:17] Speaker 02:
But for the 614 patent, which is a later date, different priority and everything like that, they say you can, for our invention purposes, you can mix and match components.

[00:11:27] Speaker 02:
to perform what you need to do.

[00:11:30] Speaker 01:
And the reason that can't be done in the patent we're reviewing is the prosecution history that you've pointed to.

[00:11:36] Speaker 02:
Well, that's a different point in time that's later talking about a different set of inventions.

[00:11:41] Speaker 02:
And the prosecution history here is saying there's a difference between client and servers.

[00:11:46] Speaker 02:
And even what Judge Cunningham had pointed out about the clients, peers, and agents, all of those roles, if you look at figure six in the patent,

[00:11:55] Speaker 02:
That's software that's loaded onto a personal computer.

[00:11:59] Speaker 02:
That's not put onto a server.

[00:12:01] Speaker 02:
That's the whole point of the patent is we can't put servers

[00:12:05] Speaker 02:
Everywhere we want them around the world, it's too expensive.

[00:12:09] Speaker 02:
Those are dedicated always on devices.

[00:12:11] Speaker 02:
So what we need to do is we're going to have this other software everybody already owns.

[00:12:16] Speaker 00:
Let me go to your, I think you have the baseball analogy, is that right?

[00:12:20] Speaker 02:
A what?

[00:12:20] Speaker 02:
Baseball analogy about catching and catching.

[00:12:23] Speaker 00:
Yes, that was your analogy, correct?

[00:12:25] Speaker 00:
Right.

[00:12:25] Speaker 00:
And so my understanding of the way you think your analogy would work was if somebody is labeled a pitcher,

[00:12:32] Speaker 00:
They're always labeled a pitcher, and if somebody's labeled a catcher, it's always labeled a catcher, even if the pitcher's catching or the catcher's pitching.

[00:12:40] Speaker 00:
True.

[00:12:41] Speaker 00:
OK.

[00:12:42] Speaker 00:
But it seems to me that that analogy actually makes more sense to support the opposing counsel side, right?

[00:12:49] Speaker 00:
Because when a person is pitching, even if they were previously a catcher, I would think they would then convert to being a pitcher and vice versa.

[00:12:57] Speaker 00:
Do you understand how I'm seeing the way I think that analogy would work?

[00:13:02] Speaker 02:
I think this comes back to this idea, which is there's a difference between what was talked about as roles in software.

[00:13:14] Speaker 02:
That is, do you have a client program running on a computer that asks for information and receives information?

[00:13:19] Speaker 02:
Or a program running on a computer that would act as a client?

[00:13:24] Speaker 02:
A program running on a server that receives requests and sends back responses.

[00:13:30] Speaker 02:
There were devices that existed in the prior art and are talked about in RFC 2016 known as proxies that do both.

[00:13:39] Speaker 02:
They act as a client and they act as a server.

[00:13:42] Speaker 02:
Those were only server hardware.

[00:13:44] Speaker 02:
Client devices never did both of those things.

[00:13:47] Speaker 02:
That's what there's a novelty in the patent about is that proxy, and that's what it talks about at column two, line 10 and 11, were proxy servers.

[00:13:55] Speaker 00:
You never had-

[00:13:57] Speaker 00:
Uh, isn't RFC 2616 also discussed in the actual patent specification, right?

[00:14:04] Speaker 00:
Correct.

[00:14:04] Speaker 00:
And so with that in mind, that it would be considered also part of the intrinsic record, right?

[00:14:09] Speaker 02:
Yes.

[00:14:09] Speaker 00:
Okay.

[00:14:10] Speaker 00:
And that RC, I'm sorry, I'm messing up the letters.

[00:14:14] Speaker 00:
That is an RFC 2616 actually talks about, which I think is what you were just getting to, that a client

[00:14:22] Speaker 02:
Device connected the server and vice versa not quite device That is a program called a client program that has a certain functionality.

[00:14:31] Speaker 02:
It's not a device.

[00:14:32] Speaker 00:
It's just it's just a functionality Okay, so tell me what you think I should take from RFC 2616 That is that's where the that's what the roles are.

[00:14:42] Speaker 02:
That's when you which you have different roles that can be played in the prior art a server a

[00:14:49] Speaker 02:
could act as a client and a server if it was a proxy server.

[00:14:54] Speaker 02:
But what we're talking about as a server was this commercial hardware that was always on.

[00:14:58] Speaker 02:
In the prior art, you never had a person's computer or phone or PC that is a client device acting in the role of a server and a client

[00:15:10] Speaker 02:
between two servers.

[00:15:11] Speaker 02:
That never happened before.

[00:15:13] Speaker 02:
The first time that ever happened was this patent.

[00:15:16] Speaker 02:
And the only way that you can get any meaning out of the problem and the solution here is to recognize that.

[00:15:21] Speaker 01:
That the whole point here was to... We've asked you a lot of questions, so I'll restore your rebuttal time, but you're out for now.

[00:15:30] Speaker 02:
Oh, thank you.

[00:15:30] Speaker 02:
Thank you, Your Honor.

[00:15:35] Speaker 01:
Mr. Leventhal?

[00:15:40] Speaker 03:
May it please the court, Daniel Leventhal, for appellees.

[00:15:45] Speaker 03:
Your honors, what Phillips tells this court is that the plain and ordinary meaning that the court is seeking for a term is that which is consistent with the specification.

[00:15:56] Speaker 03:
Bright Data asks this court to violate that mandate twice, first for client and second for server.

[00:16:05] Speaker 03:
Magistrate Judge Payne, Judge Gilstrap,

[00:16:08] Speaker 03:
eight panels of the PTAB, each directly considered this the hardware-based construction of client and the hardware-based construction of server, and rejected them explicitly because they are not consistent with the specification.

[00:16:24] Speaker 03:
Judge Cunningham identified the portions of the specification to which I was going to point at showing it is consistent with the position, with the role-based construction, as does RFC 2616.

[00:16:39] Speaker 03:
So what I would like to just briefly address is a couple concepts that my friend on the other side addressed in terms of the problem and solution.

[00:16:47] Speaker 03:
The problem and solution that was described is not the problem and solution that this patent actually addresses.

[00:16:53] Speaker 03:
The problem this patent addresses, and it begins in the abstract,

[00:16:57] Speaker 03:
is that getting content from a web server is bad.

[00:17:02] Speaker 03:
It's a congested part of the freeway that you want to avoid.

[00:17:06] Speaker 03:
That's what the abstract says.

[00:17:08] Speaker 03:
And the goal of this patent is to find a way to avoid going to the server at all costs.

[00:17:16] Speaker 03:
As a last resort, you'll go there.

[00:17:18] Speaker 03:
But the preferable thing to do is to grab a stored copy somewhere other than the web server.

[00:17:25] Speaker 03:
And in figures one and figures two,

[00:17:28] Speaker 03:
the two prior art embodiments, the inventors are describing two known ways to attempt to stop, to get around this and explaining why they're no good.

[00:17:39] Speaker 03:
Figure one, disagree that figure one suggests anything about the structure of a server generally.

[00:17:47] Speaker 03:
What figure one says is let's do a content delivery network, what Akamai has popularized today.

[00:17:53] Speaker 03:
And what they say is if,

[00:17:55] Speaker 03:
you did one of these content delivery networks, and you wanted to store all of the stuff that was relevant, then it would be huge and expensive and everything else.

[00:18:05] Speaker 03:
It's not a definition of server hardware generally.

[00:18:07] Speaker 03:
It's saying if you wanted to do that.

[00:18:09] Speaker 03:
They say it's a bad idea.

[00:18:10] Speaker 03:
And so they move on.

[00:18:12] Speaker 03:
Figure two, they move on and they say, well, what about peer-to-peer networks?

[00:18:16] Speaker 03:
That has a great idea, because in peer-to-peer networks, the content is distributed.

[00:18:22] Speaker 03:
A little bit of content is stored in different places.

[00:18:24] Speaker 00:
Can you directly respond to the lexicography argument that the Public Council makes?

[00:18:29] Speaker 03:
Yes, Your Honor.

[00:18:30] Speaker 00:
Point to that here in language.

[00:18:31] Speaker 03:
Yes, Your Honor.

[00:18:32] Speaker 03:
It is not lexicography.

[00:18:34] Speaker 03:
As Judge Stark explained, if you look at the beginning of the sentence, it states,

[00:18:39] Speaker 03:
Uh, that what it is talking about, uh, is in the network 50.

[00:18:45] Speaker 03:
And your honor, I'm at column two, line 45.

[00:18:49] Speaker 03:
If you go up one more line, it says, figure two is this peer to peer prior art network that has file network transfer network 50.

[00:18:59] Speaker 03:
And it states, Your Honor, that then the sentence, that's alleged lexicography, is explicitly limited to in network 50, which is the prior art network.

[00:19:10] Speaker 03:
And you go to the end.

[00:19:12] Speaker 03:
There is an incomplete quotation in the brief.

[00:19:16] Speaker 03:
It does not say here as referred to herein as client devices.

[00:19:21] Speaker 03:
It says as referred to herein as client devices 60.

[00:19:25] Speaker 03:
Client devices 60 is a specific element only found in figure two.

[00:19:30] Speaker 03:
In figure three, which is the actual embodiment, everything in there is a communication device 200.

[00:19:35] Speaker 00:
Can you also respond to the prosecution history argument that both counsel made?

[00:19:40] Speaker 03:
Yes.

[00:19:41] Speaker 03:
Number one, so the prosecution history, Your Honor, in referring to 3410, the response to that from the board, which is Appendix 356, explains three points, all of which independently address that prosecution history.

[00:19:57] Speaker 03:
Number one is that this is a grandchild.

[00:20:00] Speaker 03:
This is a grandparent.

[00:20:02] Speaker 03:
It is not using any of the claim terms at issue.

[00:20:05] Speaker 03:
What is being described in Garcia when they talk about the client and the server is how a PASIDA would interpret and understand a specific word in the prior art, and therefore whether it would meet the claims.

[00:20:17] Speaker 03:
We think that's well short of clear and unambiguous.

[00:20:20] Speaker 03:
The point number two is the court cites to Epistar and says it must be an expression of manifest exclusion or restriction.

[00:20:28] Speaker 03:
And especially important, Your Honor, I believe is in part point three.

[00:20:32] Speaker 03:
And then again, this is appendix 356.

[00:20:35] Speaker 03:
They point out that the prosecution history comments cannot trump the plain language of the claims and the direct teaching of the specification.

[00:20:44] Speaker 03:
And they're citing to the Talcordia case.

[00:20:46] Speaker 03:
And the bottom line, Your Honor, is none of these are disclaimers.

[00:20:49] Speaker 03:
And by the way, the 936 patent, even though it is a grandparent of what we're talking about here, that file history excerpt was 2017.

[00:20:57] Speaker 03:
The priority date here is 2009.

[00:21:00] Speaker 03:
You cannot use file history statements to rewrite history and contradict the specification.

[00:21:07] Speaker 03:
And that is why we believe it is not a disclaimer.

[00:21:10] Speaker 03:
And that applies for all of their arguments.

[00:21:11] Speaker 00:
So I thought that I was onto something here with the, I'm going to say RFC.

[00:21:17] Speaker 00:
Give me the numbers again.

[00:21:19] Speaker 00:
2616.

[00:21:19] Speaker 03:
2616.

[00:21:21] Speaker 00:
But then when I heard opposing counsel discuss it, when I was trying to explain how I thought it supported up the role sort of based claim construction as opposed to the hardware based claim construction, they drew a distinction between client program and client device.

[00:21:36] Speaker 00:
And I just wanted to hear you speak to that as well.

[00:21:38] Speaker 03:
Sure.

[00:21:38] Speaker 03:
Yes, your honor.

[00:21:38] Speaker 03:
So number one, there is no such distinction if you go back to the specification, because I'll direct

[00:21:44] Speaker 03:
the court to column five, lines 21 through 34 of the specification.

[00:21:52] Speaker 03:
And in that sense, recall, we're talking about figure three.

[00:21:55] Speaker 03:
And in figure three, we have little circles that are labeled agent, peer, and client.

[00:22:03] Speaker 03:
But what the specification explains is even though they have those different labels,

[00:22:08] Speaker 03:
They're all communication device 200.

[00:22:11] Speaker 03:
They all have generic components of a computer.

[00:22:14] Speaker 03:
And by the way, just very briefly, we disagree that the specification ever suggests anything in figure three is a personal computer.

[00:22:22] Speaker 03:
It says they are generic components of a computer, and that's column five, lines 54 through 55.

[00:22:28] Speaker 03:
But the key point here, Your Honor, in how we know the RFC 2616 definition is what the specification is using is it says

[00:22:36] Speaker 03:
We are going to designate this communication device to work as a client, designate this communication device to work as an agent.

[00:22:45] Speaker 03:
The labels that are provided in figure three is, what is the function being performed at that time?

[00:22:50] Speaker 03:
Which particular of the three software modules, all of which run in parallel, is operating at that time?

[00:22:56] Speaker 03:
And that's the label we're going to give it.

[00:22:58] Speaker 03:
And that's exactly what RFC 2616 says.

[00:23:01] Speaker 03:
It says, look, a device can and should provide multiple roles,

[00:23:05] Speaker 03:
we're going to look at the particular connection to see what the definition is and what is the function as implemented in software that is being done.

[00:23:12] Speaker 03:
So RFC 2616 is entirely consistent with how the specification uses these labels.

[00:23:18] Speaker 00:
What did you think of the analogy?

[00:23:20] Speaker 00:
So I thought the analogy supported your side.

[00:23:23] Speaker 00:
I don't know if I got an answer per se from opposing counsel on the analogy, but what do you think of that?

[00:23:28] Speaker 03:
Your Honor, I agree with your analysis.

[00:23:32] Speaker 03:
My co-counsel, Mr. Breaux, also agrees with it.

[00:23:35] Speaker 03:
I'm having trouble understanding the analogy period.

[00:23:38] Speaker 03:
I think the bottom line is, analogies are always tough, but the bottom line is this is a computer science application where everyone looks at the role.

[00:23:47] Speaker 03:
I think what's incredibly important here, Your Honor, is that there is no distinction in hardware in this specification.

[00:23:55] Speaker 03:
I do want to address that Council stated that what makes this so great is that before this patent,

[00:24:03] Speaker 03:
There were never personal computers that acted as a proxy.

[00:24:07] Speaker 03:
Respectfully, that's not the finding of the PTAB.

[00:24:11] Speaker 03:
Crowds, which is one of the references in six of the eight petitions, describes

[00:24:20] Speaker 03:
each of the user computers.

[00:24:22] Speaker 03:
User computers of the users, exact same thing as consumer computers, acting as a proxy.

[00:24:27] Speaker 03:
That last hop before the web server.

[00:24:30] Speaker 03:
Plamondon is even more explicit.

[00:24:32] Speaker 03:
Plamondon states that the appliance 200, which is the last stop,

[00:24:36] Speaker 03:
It can be a laptop, it can be a mobile device, it can be a personal computer.

[00:24:40] Speaker 03:
So the story of we invented the idea of having a proxy that is a personal computer, that would not ultimately flip any of these eight IPRs.

[00:24:52] Speaker 01:
I'll take you back to lexicography in column two.

[00:24:55] Speaker 01:
We have said, I think at least in Kiosera, that the phrase referred to herein as is lexicography, or at least it's a strong indication that it's lexicography.

[00:25:08] Speaker 01:
I take it you're agreeing that it is lexicography in this patent for purposes of describing figure two at least.

[00:25:15] Speaker 03:
Yes your honor I think that's exactly correct which is I think the case law also says that you look at the entire surrounding language and what did they actually say and they did not hear they did not say the words client device.

[00:25:26] Speaker 03:
refer to a computer of consumers.

[00:25:30] Speaker 03:
They said, in this thing.

[00:25:31] Speaker 01:
And so they don't ever say, as referred to herein, only means when we're talking about prior art, or only means figure two.

[00:25:42] Speaker 01:
You would acknowledge they're not that clear in saying it doesn't carry through to their claims.

[00:25:48] Speaker 03:
No, Your Honor, I would disagree with that.

[00:25:50] Speaker 03:
I think they are that clear.

[00:25:51] Speaker 03:
Because the very beginning of the sentence says, in the network 50 comma,

[00:25:56] Speaker 03:
files are stored on computers of consumers referred to herein as client devices 60.

[00:26:02] Speaker 03:
So it started within the network 50.

[00:26:05] Speaker 03:
It did not define the word client devices.

[00:26:07] Speaker 03:
It defined a specific object, client device 60.

[00:26:12] Speaker 03:
And Your Honor, I do want to just point out that both the PTAB and the district court pointed out that assume there is lexicography.

[00:26:20] Speaker 03:
that they're still looking at it wrong.

[00:26:23] Speaker 03:
Because what is being described here is if you word search this patent for the word consumer, what is being talked about is not a user, not a person sitting at their personal laptop.

[00:26:34] Speaker 03:
Consumer is consumer of content, which is the opposite of a provider of content.

[00:26:39] Speaker 03:
And so even if there was lexicography, a consumer of content, it's not this hardware distinction they want to make.

[00:26:46] Speaker 01:
In trying to figure what a person of ordinary skill they are would read,

[00:26:50] Speaker 01:
into this sentence that's arguable or I think agreed upon lexography for at least a limited purpose, the fact that it appears in the background, might that lead one of ordinary skill in the art to think, well, this is going to carry all the way through to the claims because this is sort of foundational to what I, a person of ordinary skill in the art, would of course understand

[00:27:11] Speaker 01:
about a client device, all client devices in this art.

[00:27:18] Speaker 01:
That is, the fact that it's in the background, doesn't that cut against you?

[00:27:21] Speaker 03:
I would again say no, Your Honor, for the reason that

[00:27:28] Speaker 03:
the word client devices does not appear in the descriptions of any of the embodiments of the invention.

[00:27:33] Speaker 03:
So you have to skip forward many years in time until the word client device appears in these continuation claims.

[00:27:39] Speaker 03:
So in reading the specification as a whole, the inventors chose to use a different word, communication device, in conjunction with all the embodiments of the invention.

[00:27:48] Speaker 03:
And Your Honor, I do want to point something out just very briefly.

[00:27:53] Speaker 03:
If the court were to say, look, there's a hardware distinction based on lexicography as to client device, again, that does not change the result of any of these IPRs.

[00:28:06] Speaker 03:
Because it is not the other shoe falling that appellant would then be entitled to a hardware distinction based on server.

[00:28:18] Speaker 03:
And what we see, Your Honor, is the only way applying their definition of server that appellant was able to even show that concept was to create a figure that is not actually in the patent.

[00:28:31] Speaker 03:
What they are asking for in terms of having a definition of server being not a client, not client hardware, not personal computer hardware, that is directly contrary to every disclosed embodiment in this patent, which describes that everything in figure three

[00:28:48] Speaker 03:
is generic components of computers.

[00:28:54] Speaker 03:
And so they do not rise and fall together.

[00:28:56] Speaker 03:
There is a separate issue, not supported by lexicography, as to the server component.

[00:29:01] Speaker 03:
And that is where they actually have to win to overcome crowds, morph mix, and plan and done.

[00:29:05] Speaker 01:
They have to win on both claim constructions.

[00:29:07] Speaker 03:
Yes, they do, Your Honor.

[00:29:08] Speaker 03:
And I just think importantly that the evidence to support the server construction, substantially weaker,

[00:29:16] Speaker 03:
It relates to the idea of, well, these have to be opposite terms, which the preferred embodiment and the only embodiment is directly contrary to that.

[00:29:26] Speaker 03:
When in the gray brief, counsel admitted that if you look at figure three, the only figure, and you apply their constructions, it doesn't match figure three.

[00:29:36] Speaker 03:
It only matches a figure that their

[00:29:38] Speaker 03:
expert created and when their expert created that figure, he did not cite to a single portion of the specification.

[00:29:45] Speaker 03:
He just said, well you could put this there.

[00:29:47] Speaker 01:
Just real quick, in columns four and five, maybe elsewhere, we talked about this with Judge Cunningham, the reference to the device may serve as a client, peer, or agent, sort of interchangeably.

[00:29:57] Speaker 01:
There's no reference to server, I don't think, in those statements.

[00:30:02] Speaker 01:
Is that significant?

[00:30:03] Speaker 03:
It is not, Your Honor, because if you look at the idea of what's a server function, what's a client function, the peer function is

[00:30:11] Speaker 03:
I get a request for content, and I provide you content, which means peer is server, agent does both, client and server.

[00:30:17] Speaker 03:
I apologize for speaking quickly.

[00:30:18] Speaker 03:
I don't want to run out of time.

[00:30:20] Speaker 03:
And the client is the role of a client.

[00:30:22] Speaker 03:
So those three things cover both the client and the server role.

[00:30:26] Speaker 03:
None of them talk about hardware at all.

[00:30:28] Speaker 03:
And what the board and the district court correctly found is it may not have listed as an example, but a negative exclusion is a huge burden, and they don't come close for that negative exclusion of not a server.

[00:30:40] Speaker 03:
Thank you.

[00:30:41] Speaker 01:
Thank you.

[00:30:42] Speaker 03:
Thank you, Your Honor.

[00:30:50] Speaker 02:
Mr. Harkins, you have three minutes.

[00:30:57] Speaker 02:
Thank you, Your Honor.

[00:31:03] Speaker 02:
This issue of the roles devices play versus what are the devices is the core issue of what these patents are about.

[00:31:13] Speaker 02:
And there was some confusion in the district court, and I think very much so in the board's findings, about the difference of roles versus the difference of devices.

[00:31:25] Speaker 02:
There were four different claim construction orders that Navistrate Hain issued

[00:31:29] Speaker 02:
regarding the same claim language, four of them.

[00:31:31] Speaker 02:
He kept revisiting it.

[00:31:33] Speaker 02:
But what happened at the end of that process was that he, and it was a case called NetNet, was the last ruling that he got to make on this, was that he said, look, I'm going to find that a client device is a communication device and a server is not.

[00:31:50] Speaker 02:
A server is not a communication device.

[00:31:53] Speaker 02:
That you make a good point, and the point that we argued was, if the appellants were right, what is the difference between figure one, the prior art, and figure three?

[00:32:04] Speaker 02:
What is the difference?

[00:32:05] Speaker 02:
Figure one has a client going to a server, going to a web server.

[00:32:11] Speaker 02:
Figure three has a client going to an agent going to a web server.

[00:32:15] Speaker 02:
They do the same thing.

[00:32:17] Speaker 00:
So looking at your statement of issues in your blue brief, I think you've identified four different issues for this court.

[00:32:25] Speaker 00:
Right.

[00:32:26] Speaker 00:
If we rule against you on issues one and two, do we need to reach issues three or four?

[00:32:33] Speaker 02:
We do, Your Honor.

[00:32:34] Speaker 02:
And the reason is because if you were to affirm the board's constructions, they still wouldn't invalidate the claims.

[00:32:42] Speaker 02:
We'd still have a problem there.

[00:32:45] Speaker 02:
And there are still obviousness considerations for some of these that would require you to look at the art.

[00:32:51] Speaker 02:
Am I in?

[00:32:53] Speaker 02:
I want to make sure I'm looking at the four issues right now.

[00:33:09] Speaker 02:
OK, yes.

[00:33:10] Speaker 02:
I spoke correctly, which is the issue of invalidity and the issue of secondary considerations is still an issue, even if you adopt the board's construction.

[00:33:21] Speaker 02:
And the reason is because not only, and I've said that there's prosecution history and there's lexicography, but also the claims themselves have a problem.

[00:33:30] Speaker 02:
The board said a client device is a device that is operating in the role of a client.

[00:33:37] Speaker 02:
And a server is a device that is operating in the role of a server.

[00:33:42] Speaker 02:
But the claims say that you have a client device that is sending files in response to requests.

[00:33:50] Speaker 02:
That's not operating in the role of a client.

[00:33:53] Speaker 02:
So what they've pointed out in this prior art is not met.

[00:33:58] Speaker 02:
It's an impossible thing you can't meet, which is if you've got a John Doe in the crowds reference, and that is

[00:34:07] Speaker 02:
sending responses to requests that is not operating the role of the client under the same standards we're all talking about.

[00:34:15] Speaker 01:
Okay Mr. Hypens, you've run out of time.

[00:34:18] Speaker 01:
Okay.

[00:34:18] Speaker 01:
The case is submitted.

[00:34:19] Speaker 01:
Thank you.