[00:00:00] Speaker 00: The first case for argument this morning is 23-1495, Cupp Computing versus Steward. [00:00:07] Speaker 00: Mr. Lerman, please proceed. [00:00:10] Speaker 03: Thank you, Your Honor. [00:00:11] Speaker 03: I may please the court, Dan Lerman, for appellate Cupp Computing. [00:00:15] Speaker 03: The board erred in construing two claim terms, particular limitations and the security agent limitation. [00:00:23] Speaker 03: I'd like to start with a particular limitation. [00:00:26] Speaker 03: The patent requires a particular wake event [00:00:29] Speaker 03: that triggers a particular wake signal that in turn triggers a particular security service. [00:00:35] Speaker 03: In other words, there is an association between the wake event, the wake signal, and the security service. [00:00:43] Speaker 03: The system can respond one way to event A and another way to event B. That's different than the prior art when there is no association [00:00:52] Speaker 03: between the wake signal and the security services. [00:00:54] Speaker 00: Can you explain to me? [00:00:55] Speaker 00: I'm quite confused on what the difference is between your construction and the board construction. [00:01:01] Speaker 00: So can you explain what you think the difference is? [00:01:05] Speaker 03: Sure, Your Honor. [00:01:05] Speaker 03: Yeah. [00:01:06] Speaker 03: The key difference is [00:01:08] Speaker 03: that in the board's construction, the only thing that needs to matter is that the signal or event needs to be identifiable. [00:01:15] Speaker 03: And so what the board said was identifiable based on time. [00:01:19] Speaker 03: And in support, it looked at the argument below. [00:01:22] Speaker 00: Well, what does that mean? [00:01:23] Speaker 00: It means you've got one, and therefore there's the second, and there's a third, and it's with respect to one particular event. [00:01:31] Speaker 03: I think what the board meant, and this is the board's construction, I think what the board meant was that a signal sent at time one is distinguishable from a signal sent at an event that is time two, and therefore that satisfies a particular limitation. [00:01:45] Speaker 03: In our view, that does not. [00:01:46] Speaker 00: Well, when you say it's different, what do you mean? [00:01:48] Speaker 00: Can you just follow through? [00:01:49] Speaker 00: So you've got a particular event, and you go through first, and it takes you to the second and the third. [00:01:54] Speaker 00: Then when you say you have another particular event, then the board is saying you do another one? [00:02:01] Speaker 03: Right. [00:02:02] Speaker 03: Well, I think that's the key distinction, if I can just back up. [00:02:05] Speaker 03: In our system, under our construction, [00:02:07] Speaker 03: A particular event will dictate a particular signal, which will dictate a particular service. [00:02:13] Speaker 03: When you say make a particular argument in response to a particular legal claim, you're saying make a particular argument in response to that claim. [00:02:22] Speaker 03: Make a different argument in response to a different claim. [00:02:25] Speaker 01: The arguments might be distinguishable. [00:02:28] Speaker 01: with that analogy is that you've taken an event is a different kind of thing from an argument. [00:02:35] Speaker 01: An argument is time independent and just exists in the abstract. [00:02:40] Speaker 01: An event is a happening. [00:02:43] Speaker 01: So the same, you know, the same [00:02:48] Speaker 03: I agree, Your Honor, but I think that is actually what led the board astray. [00:02:54] Speaker 03: Let's talk about security service. [00:02:55] Speaker 03: Security service is one of the terms as a signal. [00:02:57] Speaker 03: Those are less time dependent. [00:02:59] Speaker 03: The security services articulated in the specification are things like [00:03:03] Speaker 03: defragmenting the hard drive, running a virus or malware scan, updating the operating system, requiring a login. [00:03:11] Speaker 03: The court saw event and saw the fact that events can be based on time and that's not like an earth-shattering concession. [00:03:17] Speaker 03: The spec says they can be based on time. [00:03:19] Speaker 03: But what the board ignored was in the very next sentence that that event will only satisfy the claims if it then triggers a particular security awake event of service, sorry, signal, and then that in turn triggers a particular security service. [00:03:35] Speaker 03: So I think what your honor is getting at is that when you look at event in isolation, [00:03:39] Speaker 03: Perhaps it can be distinguishable based on time and identifiable based on time. [00:03:43] Speaker 03: But first of all, there is a linkage. [00:03:45] Speaker 03: There is a daisy chain here. [00:03:46] Speaker 03: That event, whether it's time-based and the spec also has non-time-based events like alerts and alarms, needs to then trigger a particular wake signal. [00:03:54] Speaker 03: And that will then automatically lead the security agent to perform a particular security service that is dictated by the event. [00:04:02] Speaker 03: The prior art does not have that. [00:04:04] Speaker 00: And what is your view? [00:04:05] Speaker 00: How is your view different? [00:04:06] Speaker 03: That is my view, Your Honor. [00:04:08] Speaker 03: The board's view is A, there is no relationship between the event, the signal, and the security service. [00:04:14] Speaker 03: As long as the event is somehow identifiable in form, whether it's in time or whatever, that is enough. [00:04:20] Speaker 03: Full stop according to the board. [00:04:22] Speaker 01: So I guess what I keep thinking about is causes of the event can be a cause, so like a storm or a [00:04:33] Speaker 01: a hurricane, or a tornado, or an earthquake, or different kinds of causes. [00:04:39] Speaker 01: And then the signals can be a siren, an alarm, a flare. [00:04:46] Speaker 01: So the content of the signal can be different. [00:04:49] Speaker 01: The cause can be different. [00:04:50] Speaker 01: And then the resulting actions, the security services, can be different. [00:04:54] Speaker 01: And I take it that the board's position is it doesn't matter [00:04:58] Speaker 01: that there are different causes as long as the triggers happen at different times. [00:05:04] Speaker 01: It doesn't matter if the content of the signal, whether it's a flare or anything, are different. [00:05:10] Speaker 01: It's a different particular signal because it was sent at a different time. [00:05:18] Speaker 01: Right? [00:05:18] Speaker 03: I think that's part of it. [00:05:20] Speaker 03: The board's position, I think, is just if it's identifiable. [00:05:24] Speaker 03: it satisfies a particular requirement. [00:05:26] Speaker 03: But the claims also require in response to. [00:05:29] Speaker 03: The claims expressly say that the wake signal must be in response to a particular wake event. [00:05:34] Speaker 03: It then says that the security agent, in response to the wake signal, will wake specific portions of the device and then perform particular security services. [00:05:45] Speaker 02: Event, signal, service, correct? [00:05:47] Speaker 02: Correct. [00:05:49] Speaker 02: What is it about this patent that in your view, if this is your view, I've struggled to understand, says that the event has to be different each time, the signal has to be different each time, and the service has to be different each time. [00:06:05] Speaker 02: Is that what you're saying particular means, and if so, how would we get there? [00:06:08] Speaker 03: Two answers, and the first answer is a yes and. [00:06:12] Speaker 03: Putting that aside, whether there needs to be multiple events and multiple signals and multiple services, there still needs to be the linkage. [00:06:19] Speaker 03: And in the prior art, you wake up the whole device and then some other entity, it's a customer service agent or a backend server will go in and then decide what to do. [00:06:30] Speaker 03: It is automatic in our device. [00:06:31] Speaker 03: There is an event and then automatically the security agent based upon the event does what it wants. [00:06:36] Speaker 02: Can the event be the same type of event [00:06:41] Speaker 02: each time, but just at different times. [00:06:43] Speaker 03: I think our patent contemplates multiple events, because it says it can respond to any number of weight events. [00:06:49] Speaker 02: By multiple, do you mean it always has to be a different type of event? [00:06:52] Speaker 03: Well, it doesn't always have to be different. [00:06:53] Speaker 03: It could have the same event, and a particular event will dictate a particular security service. [00:06:57] Speaker 03: But it contemplates there might be two events. [00:07:00] Speaker 03: And event B will dictate, necessarily, will dictate a different security service. [00:07:04] Speaker 02: If there's only one type of event repeatedly done, [00:07:08] Speaker 02: Are we within the scope of your claims or we're definitely outside the scope of your claim? [00:07:12] Speaker 03: I think we're definitely out, but I think even if your honor disagrees, why are we definitely out? [00:07:16] Speaker 03: We're definitely out because it describes multiple security services. [00:07:19] Speaker 03: It uses the plural. [00:07:20] Speaker 03: It recites multiple security services. [00:07:23] Speaker 03: It illuminates different week events. [00:07:25] Speaker 03: It enumerates alarms, incoming data, alerts, timestamps, time duration. [00:07:31] Speaker 03: And it says that it shall provide different security services, plural, in response to the different events. [00:07:36] Speaker 03: But even if you disagree, and I do believe the system has to be capable of responding differently to different events, even if you disagree, even if there's one event and one signal and one service, and even if our patent allows for that, [00:07:51] Speaker 03: The board's construction is wrong, and the prior art is distinguishable for this reason. [00:07:56] Speaker 03: The service still needs to be dictated by the event and the signal. [00:08:01] Speaker 03: In the prior art, the device is just woken up, and then someone else comes in and says, I'm going to do this, I'm going to do that, I'm going to tell it what to do, I'm going to click on what we're going to call the security agent and tell it what to do. [00:08:13] Speaker 03: In our system, it's automatic, it's dominoes, it's a daisy chain. [00:08:17] Speaker 03: So even under your honors reading, the decision below is wrong. [00:08:21] Speaker 03: And the prior art would not have rendered it obvious, because it doesn't describe automatically performing a particular service in response to a particular event. [00:08:30] Speaker 02: Let me ask just one other thing. [00:08:32] Speaker 02: On the dispute about particular, which is where we've been focused, it seems like the board went on and applied what it understood to be your construction. [00:08:43] Speaker 02: I don't know what you have to say about that. [00:08:45] Speaker 02: Do we even need to resolve this dispute over the particular construction? [00:08:48] Speaker 03: Yes, for three reasons, Your Honor. [00:08:51] Speaker 03: First, the PTO has intervened here. [00:08:53] Speaker 03: And on appeal, it does not dispute that we win under our construction. [00:08:57] Speaker 03: It does not defend that alternative holding by the board. [00:09:01] Speaker 03: All it says is that if the board is right, we win. [00:09:04] Speaker 03: And it says that if we're won. [00:09:06] Speaker 02: Have you appealed for that alternative holding? [00:09:09] Speaker 03: We have appealed the entire decision below, Your Honor. [00:09:11] Speaker 03: I'm just saying that this court has held and courts have held that even appellees abandon arguments by failing to raise them. [00:09:18] Speaker 03: I think that applies for CRI when it's an intervener. [00:09:21] Speaker 03: But let me answer your question. [00:09:22] Speaker 03: The board did not apply. [00:09:24] Speaker 03: our construction. [00:09:26] Speaker 03: As I said, the key aspect of our construction, and this is where the board went astray, is this linkage requirement. [00:09:31] Speaker 03: We expressly said linkage, and when we said the event could be time-based, we said it still needs to be associated with the particular signal and service. [00:09:38] Speaker 03: The board never even purported, in fact it rejected that with respect to security service, it didn't address it with respect to the other two of the three factors, and it never found or purported to even ask [00:09:48] Speaker 03: whether there is an association between. [00:09:51] Speaker 03: So the board didn't even ask that question or apply reconstruction and the prior art is distinguishable. [00:09:57] Speaker 03: The prior art only describes one type of wake event which is signal which is waking the whole device. [00:10:03] Speaker 03: Even if your honor thinks that that could satisfy our patent, it never says that that wake event then leads to or causes a particular security service. [00:10:13] Speaker 03: It just didn't say that and that is the core [00:10:16] Speaker 03: Aspect of our invention and the core distinction between the prior art and that is what the agent does if I could turn to that It's a related point [00:10:23] Speaker 03: our agent acts automatically. [00:10:25] Speaker 03: It knows what to do in response to a particular event and a particular signal. [00:10:32] Speaker 03: This is the daisy chain. [00:10:33] Speaker 03: The prior art programs don't do anything automatically. [00:10:37] Speaker 03: There is a wake signal that wakes the device or a portion of the device. [00:10:41] Speaker 03: And then what happens is you have a customer service or a backend service center, or maybe even the user goes into what's called this like storefront and then tells the device that has been woken, [00:10:52] Speaker 03: Run this program, run this program, run that program. [00:10:57] Speaker 03: That's not our device. [00:10:58] Speaker 03: Our device, even assuming if there's one event and one signal, the agent will automatically determine what to do based upon the event and the signal. [00:11:09] Speaker 03: And the board didn't apply that with respect to particular. [00:11:12] Speaker 03: It also didn't even report, Your Honor, for the agent, which is a related concept. [00:11:16] Speaker 03: It didn't say that we lose even under our construction. [00:11:19] Speaker 03: So it didn't have the alternative holding with respect to agent. [00:11:22] Speaker 03: What the board said was two things. [00:11:24] Speaker 03: It rejected our notion that an agent needs to run continuously because it said we didn't argue that. [00:11:29] Speaker 03: We did. [00:11:30] Speaker 03: If you look at page 456 and 458 of the appendix, we expressly said that the agent must quote run continuously. [00:11:36] Speaker 03: And we distinguished the prior art agents on the ground that they were just clicked on and went back into a coma. [00:11:42] Speaker 03: The board also rejected our extrinsic evidence, Franklin, on the ground that it just defined out it used our definition as just one type of agent. [00:11:50] Speaker 03: Well, again, that's flat wrong. [00:11:51] Speaker 03: Franklin recited our definition of agent and then said, quote, this is the essence of being an agent and that, quote, every agent has these properties. [00:11:59] Speaker 03: So the board's grounds for distinguishing our agent is at a minimum arbitrary and capricious, because it literally just didn't read the next sentence. [00:12:06] Speaker 03: But it's also wrong, because our definition of agent requires a certain amount of autonomy. [00:12:11] Speaker 03: It automatically does something in response to the event or the signal. [00:12:16] Speaker 03: There's no dispute that the prior agents don't do that. [00:12:19] Speaker 03: The prior agents. [00:12:20] Speaker 00: And can you just quickly, because your time's running out, give us a citation to the spec in which you get that from, the autonomy point? [00:12:28] Speaker 03: Sure, well, the spec, and let me turn to it. [00:12:32] Speaker 03: The spec repeatedly talks about the agent. [00:12:37] Speaker 00: I've got column 28. [00:12:38] Speaker 03: At column 28, it talks about waking one more component and performing computer services on one or more components. [00:12:46] Speaker 03: In the spec on page 23, it says, may be configured to trigger the wake signal. [00:12:52] Speaker 03: This gets to the relation to. [00:12:53] Speaker 03: But more importantly, the claims say, in response to. [00:12:58] Speaker 03: It says on page 22, on column 22, when some embodiment security agent may wake only one or more components in order to execute security functions and selectively activate various components and perform the security functions. [00:13:11] Speaker 03: I don't think there's a dispute that in our patent, the agent knows what to do automatically. [00:13:17] Speaker 03: The only dispute is really whether [00:13:22] Speaker 03: The prior art does that, and it, well, back up, reverse that. [00:13:26] Speaker 03: There's no dispute that the prior art doesn't do that. [00:13:28] Speaker 03: I don't think the board disputed that our agent acts automatically. [00:13:31] Speaker 03: It just sort of applied a broader construction of agent that is just a computer program that you click on. [00:13:37] Speaker 03: And that, I think, is the core distinction between the prior art. [00:13:39] Speaker 03: Because in the prior art, a mess, once the device is woken, a separate message will come in and say, run this virus scan or run that malware scan. [00:13:49] Speaker 03: That doesn't happen an hour. [00:13:50] Speaker 03: And our patent, it is automatic. [00:13:52] Speaker 03: So I would like to reserve some time for a bottle, but I would just like to make clear that the board did not apply our construction. [00:13:58] Speaker 03: So if the court agrees with our construction of either term, it should reverse the decision below. [00:14:04] Speaker 00: Thank you. [00:14:05] Speaker ?: Thanks. [00:14:21] Speaker 04: Good morning, and may it please the court, Peter Sallward on behalf of the USPTO acting director. [00:14:27] Speaker 04: There are only three straightforward and routine issues before the court today. [00:14:32] Speaker 04: And Mr. Lerner has only talked about two of them, so I've just been saved some extra work. [00:14:37] Speaker 04: And I will laud Mr. Lerman that he's come into this court today and thrown a Hail Mary, because none of what you just heard is actually in their brief. [00:14:47] Speaker 04: nor was it raised before the board. [00:14:49] Speaker 04: It is entirely distinct and new argument that has been waived. [00:14:55] Speaker 04: This is not the argument that is made in Cups Brief or before the board on claim construction. [00:15:00] Speaker 04: So I would like to elaborate on what the claims say and what the difference is to guide the court in considering that. [00:15:07] Speaker 04: First of all, as to the particular claim limitations, there's a particular wake event, particular wake signal, particular security services. [00:15:16] Speaker 04: There's a causal link in the claims, as my colleague has said, between those elements. [00:15:23] Speaker 04: But the argument that was made before the board was that a security system needs to receive or be capable of recognizing different types of wake events and taking different actions, generating different wake signals in response to those different types of wake events. [00:15:44] Speaker 04: The argument before the board and in the briefing is not about this daisy chain, the causal link. [00:15:51] Speaker 00: OK, so I'm a little confused. [00:15:53] Speaker 00: And maybe it's just me. [00:15:54] Speaker 00: But yeah, I get the word types. [00:15:55] Speaker 00: And I don't understand what the distinction is between what the board did and this types, how adding types into the mix changes the way it's done. [00:16:06] Speaker 04: Right. [00:16:07] Speaker 04: Your Honor, I can explain that with perhaps a practical example. [00:16:11] Speaker 04: Great. [00:16:13] Speaker 04: a security administrator that's part of the claim. [00:16:16] Speaker 04: And perhaps the security administrator might send a wake event. [00:16:21] Speaker 04: And that wake event might be sending to the security system, update your antivirus definitions. [00:16:27] Speaker 04: And so the argument is [00:16:30] Speaker 04: Is that enough if the prior art teaches that? [00:16:33] Speaker 04: And then there are the two additional steps in response to that. [00:16:38] Speaker 04: And what was argued before the board and in the briefing is you need more than a signal that just update your virus definitions. [00:16:46] Speaker 04: You also need a signal, run a new antivirus scan. [00:16:51] Speaker 04: Those are two different types of wake events. [00:16:55] Speaker 04: Update your definitions, run a scan. [00:16:57] Speaker 04: You have to have that in the prior art [00:17:00] Speaker 04: to have a teaching of our claim. [00:17:02] Speaker 04: And that's what CUP has argued up until today. [00:17:04] Speaker 04: And what the board found is there's no such requirement. [00:17:08] Speaker 04: In the words of my colleague, he talked about event A and event B. There's no requirement for event A and event B in the claim where A and B are different types of events. [00:17:18] Speaker 04: What the board found is if the prior art teaches [00:17:22] Speaker 04: There's a signal and it says update your antivirus definitions and it sends that at noon today. [00:17:28] Speaker 04: And then there's a new virus that comes out. [00:17:32] Speaker 04: You know, there's an urgent need to protect against this new virus. [00:17:35] Speaker 04: The antivirus definitions get updated tomorrow morning. [00:17:39] Speaker 04: And now there's another signal at noon tomorrow, update your antivirus definitions. [00:17:45] Speaker 04: Those are particular wake events, because one's Tuesday and one's Wednesday. [00:17:50] Speaker 01: The existence of a new virus is extraneous to your point, right? [00:17:55] Speaker 01: It is. [00:17:56] Speaker 01: It's just a reason for there to be a new definition. [00:17:58] Speaker 01: Or it could be it sends it every day at noon. [00:18:01] Speaker 01: It could be. [00:18:01] Speaker 01: Exactly. [00:18:02] Speaker 04: The only real point I'm trying to make, I'm just trying to make a complete hypothetical that's irrelevant, [00:18:08] Speaker 04: If it sends the exact same signal that would cause the same sequence of actions, update your antivirus, and it does it at noon today and noon tomorrow, those are particular. [00:18:19] Speaker 04: That meets the plain and ordinary meaning of particular. [00:18:23] Speaker 01: And in that view, what role is being played in the claim by the word particular? [00:18:29] Speaker 01: That is, what would distinguish a claim with that word omitted each place? [00:18:37] Speaker 04: It just means, in its plain and ordinary sense, it's somehow individually identifiable. [00:18:42] Speaker 04: And that's how the board construed it. [00:18:46] Speaker 01: I don't think I asked my question properly. [00:18:49] Speaker 01: It's commonly a reason to reject a claim construction, that the claim construction would give the identical meaning to the claim, whether or not that word was there. [00:19:01] Speaker 01: How does your, this came up in the board's opinion. [00:19:04] Speaker 01: I guess I just want some elaboration on it. [00:19:06] Speaker 01: Right, Your Honor. [00:19:07] Speaker 04: And what the board found is that particular is still doing work, because the board construed particular to mean distinguishable from other wake signals, for example. [00:19:26] Speaker 04: Or it would be, obviously, you change wake for the other terms. [00:19:30] Speaker 04: So it's distinguishable. [00:19:33] Speaker 04: I'm wearing a particular tie today. [00:19:35] Speaker 04: If I show up at my next argument and I'm wearing a tie, you would not say that you don't know that this was a particular tie because it's still, the new one is still a tie. [00:19:48] Speaker 04: They're the same type, but they are particular because one is polka dot and I wear stripes next time. [00:19:54] Speaker 04: Right. [00:19:55] Speaker 04: And the board found it has to be particular. [00:19:58] Speaker 04: You have to have some characteristic of [00:20:01] Speaker 04: identifying it as an individual thing in that category and that a timestamp is a good enough characteristic in the context of computer coding. [00:20:10] Speaker 02: In fact, it makes sense. [00:20:11] Speaker 02: How do you map the tie example with the earlier example you were just giving about update your virus software at noon every day? [00:20:20] Speaker 02: That is, are you saying the patent will wait to the word particular is you can't come back to the next argument with this tie under [00:20:30] Speaker 02: Under what the board agrees is the right construction. [00:20:32] Speaker 02: Yes. [00:20:34] Speaker 02: Well, then why can you satisfy the claims in your view by sending the same update your software, your virus software every day at noon? [00:20:42] Speaker 04: Because update your virus software is the tie. [00:20:46] Speaker 02: But isn't it the same tie every day? [00:20:49] Speaker 04: Noon is polka dots. [00:20:51] Speaker 04: A noon today is polka dots and noon tomorrow is stripes. [00:20:56] Speaker 04: Is that? [00:20:57] Speaker 02: Why is that right as opposed to saying noon every day is the same, I will say, lovely blue tie that you're wearing today? [00:21:07] Speaker 04: Thank you. [00:21:09] Speaker 04: Because in the context of the specification, there's nothing that requires more than that. [00:21:16] Speaker 04: And the board found that's the plain and ordinary meaning. [00:21:20] Speaker 04: And fundamentally, I would say it's far more reasonable than the opposite. [00:21:25] Speaker 04: Cup wants you to read the word type, a word that's not there, into the claims, and it doesn't have anything in the specification to point to. [00:21:34] Speaker 04: It's not just that there's a limitation described in the spec that they want you to read into the limitations when you shouldn't. [00:21:40] Speaker 04: There isn't even anything in the spec suggesting that [00:21:46] Speaker 04: should be something in the claim for the meaning of particular. [00:21:49] Speaker 01: I don't remember. [00:21:50] Speaker 01: Did the particular language, the language that used that term in several different places, get added to claims that were originally lacking in it, or were they part of these claims originally? [00:22:08] Speaker 01: And originally here it could mean in this patent or in any of its numerous ancestors. [00:22:15] Speaker 04: I can't answer that question for you, Your Honor. [00:22:17] Speaker 04: I'm sorry. [00:22:18] Speaker 04: I don't know the history of the amendment of the claim. [00:22:20] Speaker 04: But nothing has been made of that. [00:22:21] Speaker 04: I can tell you that the word particular or a variant of it only occurs three times in the spec, and none of them in connection with these claim terms that are at issue, wake event, wake signal, security services. [00:22:34] Speaker 04: So it's something that was thrown into the claims, and there's nothing to support this far more limited [00:22:43] Speaker 04: understanding that you have to import the word type into the claims. [00:22:48] Speaker 00: And how does, just to clarify, help me, how does what he said today differ? [00:22:53] Speaker 00: I mean, you said he comes up here with an entirely different argument that is not consistent with the one you described about types. [00:23:01] Speaker 04: Yes. [00:23:02] Speaker 04: So I understand my colleague to be arguing is not so much about the type argument that we've just discussed, that [00:23:14] Speaker 04: but about the causal link, that there has to be a link that a wake event in turn causes the wake signal, which in turn causes the security services. [00:23:25] Speaker 04: That is in the claim language. [00:23:28] Speaker 04: And the board found that the prior art teaches that. [00:23:31] Speaker 04: We walked through the board's findings in great detail for Joseph as an example in the USPTO's brief. [00:23:38] Speaker 04: And there's been no dispute about that. [00:23:40] Speaker 04: And that's why I say this is an entirely new argument about [00:23:44] Speaker 04: what my colleague is called the daisy chain, the cause link between those three terms. [00:23:49] Speaker 04: That's entirely new. [00:23:50] Speaker 04: It's not in the briefs. [00:23:51] Speaker 04: It wasn't raised before the board. [00:23:54] Speaker 02: Have you waived the alternative argument that the board applied their construction of particular and it doesn't make a difference? [00:24:01] Speaker 04: I don't believe we waived it, your honor. [00:24:03] Speaker 04: I can say that we at least preserved it in the USPTO's brief at page 26. [00:24:08] Speaker 04: That was the only place that I was able to find on the fly without a [00:24:12] Speaker 04: word search. [00:24:13] Speaker 02: So in your view do we have the option of not resolving the claim construction dispute and if we were to agree with the board that in the alternative it doesn't make a difference applying the patent owner's construction. [00:24:28] Speaker 04: I believe your honor it still has to be resolved because there are [00:24:33] Speaker 04: appeals from two IPRs that involve different claims. [00:24:37] Speaker 04: And I don't believe the alternative finding was made in the second IPR, which includes some non-overlapping claims. [00:24:45] Speaker 04: So I do believe the court has to resolve it, which is part of the reason the USPO did not emphasize it in the briefing. [00:24:54] Speaker 04: Briefly, I'll just also touch on construction of security agent. [00:24:58] Speaker 04: Same issue, same routine thing this court sees all the time. [00:25:03] Speaker 04: CUP wants you to read the word autonomous in. [00:25:06] Speaker 04: They want it to be autonomous security agent instead of just security agent. [00:25:10] Speaker 04: No support for that in the spec, in the claim. [00:25:14] Speaker 04: There's nothing that says it acts independently according to its own agenda or anything like those words in the specification. [00:25:23] Speaker 04: Now, in contrast to particular, security agent does appear many times in the spec, but it's only described in functional terms of what it does. [00:25:31] Speaker 04: And none of that functional description describes it as autonomous making decisions based on the environment. [00:25:38] Speaker 04: Any piece of computer code is a logical thing. [00:25:42] Speaker 04: It's pre-written by a human being to respond to certain inputs and generate certain outputs. [00:25:49] Speaker 04: So any piece of code is going to take inputs and generate outputs, but that doesn't [00:25:56] Speaker 04: The fact that there's that level of description in the spec doesn't in any way make the code autonomous or acting according to its own agenda. [00:26:05] Speaker 04: I'll just say briefly, as I said, the security agent appears many places or quite a few times in the spec. [00:26:18] Speaker 04: Primarily, the main discussion is from the bottom of column 27 at APPX 133 to the top of column 29 at APPX 134. [00:26:31] Speaker 04: And there's also a reasonable amount of discussion in column 22 at APPX 130, but nothing about this autonomous issue. [00:26:41] Speaker 04: There's no definitional statement of just security agents. [00:26:43] Speaker 04: So again, the board reasonably said [00:26:46] Speaker 04: We don't have a definition of spec. [00:26:47] Speaker 04: We're going to give it its plain and ordinary meaning. [00:26:49] Speaker 04: They looked at the dictionary definitions that were supplied by the petitioner and found them reasonable and adopted the one from Merriam-Webster. [00:26:58] Speaker 04: And they rejected CUP's proposed definition, which is based on a highly specialized definition of autonomous security agent from a paper at technical proceedings. [00:27:13] Speaker 04: You know, quite clearly the title of the article is about autonomous agent. [00:27:17] Speaker 04: If you read the whole thing, not the most exciting thing in the world, but I tell you, it's all focused on what we don't have consistency in the community about how we talk about an autonomous agent. [00:27:29] Speaker 04: What should it mean? [00:27:30] Speaker 04: They're not even saying it has this established meaning. [00:27:33] Speaker 04: They're trying to bring order to the chaos and propose a meeting. [00:27:37] Speaker 04: And so the board quite rightly rejected this single [00:27:41] Speaker 04: very detailed, very distinct, autonomous security agent definition in favor of the plain and ordinary meaning. [00:27:48] Speaker 04: And there's no dispute that the prior art teaches security agent under that plain and ordinary meaning. [00:28:05] Speaker ?: Thank you. [00:28:05] Speaker 03: Thank you. [00:28:06] Speaker 03: Three points, Your Honors. [00:28:07] Speaker 03: The first is on the Hail Mary, which I think might resolve the issue. [00:28:11] Speaker 03: At page 452 of the appendix, we say that the claim elements require a wake event that triggers a particular type of wake signal, which triggers the security for a particular security service. [00:28:24] Speaker 03: On page 465, we say there's no concept of hall of preparing a particular wake signal in response to receiving a particular wake event. [00:28:37] Speaker 03: In our opening brief at 28, we say under the correct construction, a distinct wake signal triggers a distinct wake event, triggers a distinct wake signal, and in turn, triggers distinct security services to respond to the event. [00:28:51] Speaker 03: That's at page 28 of our opening brief. [00:28:53] Speaker 03: In a reply brief at page 6, when discussing their wake-up call, we say that is particular because they influence the specific events that follow and have a particular cascade. [00:29:04] Speaker 03: On page 8, we say, [00:29:05] Speaker 03: particular security services are particular not because they can be identified on time, but because the particular security services are performed in response to a particular signal and event. [00:29:15] Speaker 03: I think my friend conceded. [00:29:17] Speaker 03: that if this is correct, if we made this argument, we win. [00:29:20] Speaker 03: My friend said that we didn't make this argument. [00:29:22] Speaker 03: We made it below. [00:29:23] Speaker 03: We made it in our opening brief. [00:29:25] Speaker 03: We made it in our reply brief. [00:29:26] Speaker 03: The board did not apply this construction. [00:29:30] Speaker 00: We're not running away. [00:29:30] Speaker 00: Can I just ask, you said he conceded that if you made that argument, what did you do? [00:29:35] Speaker 03: Maybe I'm just saying, I think his primary argument up here is that we're raising a new argument as to how, Mary, that was not made below. [00:29:42] Speaker 03: I don't think there's a dispute that the board never found this particular association. [00:29:48] Speaker 03: To the contrary, the board rejected it with respect to the security services. [00:29:51] Speaker 03: So I don't think there's a dispute that the board did that. [00:29:54] Speaker 03: On type, we're not running away from that, but we see it as related. [00:29:59] Speaker 03: Particular, under their definition, we maintain that it is superfluous if it's just identifiable by time. [00:30:06] Speaker 03: Particular means specific. [00:30:07] Speaker 03: Generic means non-specific. [00:30:09] Speaker 03: We're not reading, adding the term type. [00:30:12] Speaker 03: We are defining particular. [00:30:13] Speaker 03: When Chuck Berry says no particular place to go, he means no specific place to go. [00:30:18] Speaker 03: He's going somewhere. [00:30:19] Speaker 03: But it's not specific. [00:30:21] Speaker 03: When you say go to a particular house and perform a particular service, the house is distinguishable from other places on earth. [00:30:27] Speaker 03: Or maybe it's distinguishable in time, but you're performing a particular service at a particular house. [00:30:33] Speaker 03: So it is not superfluous. [00:30:34] Speaker 03: It is in the spec. [00:30:36] Speaker 03: The spec recites multiple wake signals, multiple wake events, and multiple security services. [00:30:41] Speaker 03: But the claims are the thing. [00:30:43] Speaker 03: And the claims do say particular. [00:30:44] Speaker 03: The spec confirms that. [00:30:46] Speaker 03: But the claims say particular. [00:30:47] Speaker 03: You don't read words out of the claims. [00:30:50] Speaker 03: I think that's not permitted. [00:30:52] Speaker 03: Finally, on the waiver point, just on the alternative holding, [00:30:55] Speaker 03: The page of the brief that my friend cited is just in their facts when they describe what the board did. [00:30:59] Speaker 03: This court has repeatedly said that you waive arguments by making them only in the facts and not in the argument. [00:31:04] Speaker 03: There is nothing in their argument that asks the court to affirm on an alternative ground. [00:31:08] Speaker 03: For those reasons, we would ask the board to reverse. [00:31:11] Speaker 00: We thank both sides. [00:31:12] Speaker 03: Thank you. [00:31:13] Speaker 00: Thank you.