[00:00:00] Speaker 02:
The next case for argument is 24-1416, centripetal versus ITC.

[00:00:08] Speaker 02:
Mr. Richardson, good morning, whenever you're ready.

[00:00:10] Speaker 02:
Good morning.

[00:00:12] Speaker 00:
Judge Prost, and may it please the court.

[00:00:14] Speaker 00:
For the 917 patent, the only question here is whether the independent claims are obvious over source fire.

[00:00:21] Speaker 00:
As my colleague explained this morning, source fire does not disclose many elements of the claimed invention, including flow level time data.

[00:00:30] Speaker 00:
And you can reverse the commission's decision on that basis alone.

[00:00:33] Speaker 05:
Council, the government argues that you quote, provide no explanation as to what effectively correlating means or why comparing two sets of logs to a database has any similarity to correlating the logs with each other.

[00:00:50] Speaker 05:
Did you ever explain that in your opening brief, and if so, where?

[00:00:54] Speaker 00:
Is this on the correlate limitation for infringement, Judge Walling?

[00:00:57] Speaker 00:
Yeah, so the testimony below showed on infringement that the way these, the way that- That's not my question.

[00:01:02] Speaker 05:
Oh, sorry.

[00:01:03] Speaker 05:
My question was, did you ever explain that in your opening brief, in your blue brief, and where?

[00:01:08] Speaker 00:
I believe we did – this is where we addressed the DOE argument from Dr. Cole, where we explained that the correlation through the ATI subscription database correlates net flow records that contain inbound and outbound packets.

[00:01:21] Speaker 00:
So if I can just take a step back.

[00:01:23] Speaker 00:
The way the Vision 1 products work is you have – No, I have a lot of questions about your briefing.

[00:01:28] Speaker 05:
Understood.

[00:01:31] Speaker 05:
Okay.

[00:01:32] Speaker 05:
You argue that Dr. Cole, I'm quoting, testified that Keysight's products include physical ports and associated software, which together constitute devices that can be provisioned with rules.

[00:01:45] Speaker 05:
Where in the record was that advanced at the hearing?

[00:01:48] Speaker 00:
Yeah, so Dr. Cole provided 15 pages of testimony on this, starting at Appendix 38048.

[00:01:53] Speaker 00:
His analysis walked through internal Vision 1 documents, source code analysis, and his own testing.

[00:02:00] Speaker 00:
And all of that was tying the physical ports to the associated software, specifically the AppStack software.

[00:02:05] Speaker 00:
I would point you specifically to the, it is the Vision 1 user guide, Appendix 50544, which talks about provisioning Ethernet ports with rules.

[00:02:17] Speaker 00:
So this was developed throughout Dr. Call's testimony.

[00:02:19] Speaker 00:
Now, I think what the other side says is there was a portion of his testimony where he had a demonstrative with the physical ports, but you have to look at that testimony in context of the pages that came before.

[00:02:30] Speaker 00:
where he's talking about the AppStack software being associated with the physical ports to constitute the device recited in the claims.

[00:02:39] Speaker 05:
Keysight argues that you didn't acknowledge the commission's finding that you waived any argument as to the portion of element age of claims 22 and 43 requiring that the system communicate to a device located in the first network

[00:02:58] Speaker 05:
the data identifying the host located in the first network, because you failed to raise it in your pre-hearing brief.

[00:03:08] Speaker 05:
Why didn't you acknowledge that finding in your opening brief?

[00:03:12] Speaker 00:
If this wasn't clear, I'm sorry, Judge, we acknowledge that in the context of saying that we argued throughout the case that the entire dashboard is what communicates the correlated information.

[00:03:23] Speaker 00:
There was a dispute below about the update from version 4.2 to 4.3 of the Vision 1 product.

[00:03:30] Speaker 05:
When an entity, a judicial entity or a finding entity, uses the word waiver, you should pay attention to it.

[00:03:40] Speaker 05:
That's my question.

[00:03:42] Speaker 05:
Why didn't you acknowledge that finding of waiver and deal with it squarely?

[00:03:46] Speaker 00:
I believe we tried to address that point by pointing to where we had made the argument.

[00:03:51] Speaker 00:
But I take the point about not squarely addressing the waiver.

[00:03:54] Speaker 00:
I'm trying to explain how we briefed that issue to show that we relied on the entire dashboard throughout the proceedings below.

[00:04:03] Speaker 05:
The government and Keysight both argue your opening brief failed to contest the commission's finding

[00:04:10] Speaker 05:
that you failed to demonstrate the identified and communicate aspects of limitations ENF of claims 22 and 43.

[00:04:20] Speaker 05:
Where in the opening brief did you address the Commission's findings as to those specific aspects?

[00:04:28] Speaker 00:
Yes, Your Honor, if you look at appendix page 69 and 70, there are not separate findings on those limitations.

[00:04:34] Speaker 00:
What the commission did was point back to its earlier discussion of the provisioning limitation.

[00:04:39] Speaker 00:
And we took that on as one issue on our brief.

[00:04:41] Speaker 00:
It's a finding, yes.

[00:04:43] Speaker 05:
Yes, we took it on as one issue, Your Honor, because the question of whether... Where in the brief did you address the commission's finding on that?

[00:04:51] Speaker 00:
It was the opening issue on infringement where we discussed that the device was not simply the physical ports, because that was the basis for that limitation, Your Honor.

[00:04:59] Speaker 05:
All right.

[00:05:00] Speaker 05:
Your reply brick contains a footnote which says, appellees also assert that centripetal did not address the identify and communicate limitations of the claims.

[00:05:12] Speaker 05:
But the ALJ's decision on these limitations was cabin to a theory centripetal did not raise that the physical ports alone are 370 patent devices and is wrong for the same reasons.

[00:05:26] Speaker 05:
Can you just disregard the commission's findings because you disagree with them?

[00:05:30] Speaker 00:
No, Judge Walken, that's not what we were trying to say.

[00:05:32] Speaker 00:
I'm sorry if that was a suggestion.

[00:05:34] Speaker 00:
What we were saying was the issue we raised in our opening brief about whether or not the device was limited to the physical ports, that issue cut across the board on both the provisioning limitation, the identify, generate, and communicate limitations.

[00:05:47] Speaker 00:
So we took it on together.

[00:05:48] Speaker 00:
That's what we were trying to say in opening and in reply.

[00:05:51] Speaker 05:
OK, the government and Keysight both argued throughout.

[00:05:59] Speaker 05:
The board, the findings below, both argue that you have waived many of your issues on appeal.

[00:06:07] Speaker 05:
And some of these waivers are appealed as positive.

[00:06:10] Speaker 05:
If we agree with these waiver arguments, would you have any issues left on appeal?

[00:06:15] Speaker 00:
We would not for the 3-7-0, Your Honor.

[00:06:17] Speaker 00:
We would still encourage the court to reach the 9-1-7 patent.

[00:06:20] Speaker 00:
And I think that's an important issue here, because source fire does not disclose the time data of the 9-1-7 for two separate reasons.

[00:06:28] Speaker 02:
But if we deal with the other case, you're assuming we don't affirm on the other case.

[00:06:34] Speaker 02:
If we affirm on the other case, 9-1-7 is done, right?

[00:06:38] Speaker 00:
I believe that is correct if you reach the time data issues that are raised on the merits in both cases, Judge Pros, but I think that would be wrong because what the claims require, the time data is part of the packet flow analysis data, so there has to be flow-level data for there to be time data.

[00:06:54] Speaker 00:
And the way that Sourcefire works, as my colleague explained, it has an event database limited to packet-level data and then an interface that draws on that packet-level data.

[00:07:04] Speaker 00:
And if sourcefire was enough to render obvious this claim, there'd be no need for the updating limitation at all.

[00:07:12] Speaker 00:
So sourcefire does not have the time data for that reason.

[00:07:15] Speaker 00:
But even if you disagreed with that, as my colleague explained, you still can't display the time data when analyzing multiple packets at the same time in sourcefire.

[00:07:25] Speaker 00:
That's an independent problem.

[00:07:27] Speaker 01:
Because the only reason why would it matter if, is just for the sake of argument, if we affirmed the finding of unpatentability of the 917 in the first case, why would it matter what basis we did it on?

[00:07:39] Speaker 01:
That would be the end of that patent.

[00:07:41] Speaker 01:
And it couldn't be the basis for an exclusion order in this case, could it?

[00:07:45] Speaker 00:
Yeah, that's correct.

[00:07:46] Speaker 00:
Yeah, Your Honor.

[00:07:46] Speaker 01:
If you affirm the... So we don't have to... If we reach the time data question or don't reach... It doesn't matter if we were to affirm the invalidation of the 917 in the first case.

[00:07:58] Speaker 00:
It can't come back in this case.

[00:08:00] Speaker 00:
Yes, Your Honor.

[00:08:00] Speaker 00:
I think under section 318, the claims would then be canceled.

[00:08:03] Speaker 00:
So that is correct.

[00:08:04] Speaker 00:
But I would like to... The time data cuts across both appeals.

[00:08:07] Speaker 00:
Got it.

[00:08:07] Speaker 00:
So I would like to just finish that point.

[00:08:09] Speaker 05:
I want to ask you one more question.

[00:08:11] Speaker 05:
And I don't need one more.

[00:08:12] Speaker 05:
No, me.

[00:08:14] Speaker 02:
Well, I want to get to the 370 questions, too.

[00:08:19] Speaker 05:
And this bothers me.

[00:08:20] Speaker 05:
In both your opening and reply brief, your arguments entirely skim over the discredited record testimony of your expert.

[00:08:30] Speaker 05:
And I believe it is discredited.

[00:08:32] Speaker 05:
But you just skim over it and leave it.

[00:08:34] Speaker 05:
And they're ultimately non-responsive to many of the arguments presented against you, Waver being cross and Ford being the big one, but many others.

[00:08:45] Speaker 05:
It seems to me that's willful blindness to what the briefs are saying.

[00:08:48] Speaker 00:
How do you deal with that?

[00:08:51] Speaker 00:
Judge Walk, I take the point.

[00:08:52] Speaker 00:
But what we were trying to do in our brief was to consolidate our issues in a way that organized them for the court.

[00:08:57] Speaker 00:
We were not trying to skim over waiver or avoid any of the decisions below.

[00:09:01] Speaker 00:
And we tried to focus on the legal errors in the decision, both on infringement and on the 370 validity issues as well.

[00:09:08] Speaker 05:
You know, when an opinion below says repeatedly, you waive this, you waive this, you waive this, it seems to me you have to grasp that nettle firmly.

[00:09:16] Speaker 00:
I agree, Judge Wallach, and we tried to present those issues, and I take your point that we may not have done so adequately.

[00:09:26] Speaker 02:
FB 7-0 patent ineligibility.

[00:09:29] Speaker 02:
We'll talk about that a little bit.

[00:09:31] Speaker 02:
Elective power in particular, and why our precedent doesn't govern here.

[00:09:35] Speaker 00:
So this court has consistently drawn a line between claims that simply use computers as tools to perform abstract functions and claims that are aimed at a problem that only arises in computer networks.

[00:09:49] Speaker 00:
That's in SRI, and that's how SRI distinguished electric power.

[00:09:53] Speaker 00:
And these claims fall into that latter group.

[00:09:55] Speaker 00:
These claims are aimed at the problem that arises

[00:09:57] Speaker 00:
When information is lost as data moves from one network to another network, that's clear in the claim language, which requires generating data that identifies the host for each packet.

[00:10:08] Speaker 00:
So once you recognize that these claims are directed to a problem that only arises in computer networks, that distinguishes electric power, cardio net, bridge and post, custom media, all of the cases that involve using computers as tools.

[00:10:22] Speaker 01:
When you say recognize that, is that a fact question or a question of law?

[00:10:27] Speaker 00:
I believe that's a question of law, Judge Stark.

[00:10:29] Speaker 00:
This court explained in CardioNet and then U.S.

[00:10:31] Speaker 01:
Synthetic that the step one inquiry is usually a legal issue resolved in the form of... Interestingly, in this case, because it came from the commission, I think both sides actually present a lot of expert testimony on this very question, whether these are using computers as a tool or improving computer technology.

[00:10:51] Speaker 01:
Does that change your answer here?

[00:10:53] Speaker 00:
It does not, Your Honor.

[00:10:54] Speaker 00:
I think you can still rely on cases like UN synthetic to resolve this case based on the four corners of the patent and the intrinsic record.

[00:11:02] Speaker 00:
And here I think the patent does clearly recite a concrete solution to a computing problem.

[00:11:09] Speaker 00:
This patent doesn't just say analyze data to identify the host of the packets leaving the first network.

[00:11:16] Speaker 00:
It's not results oriented in that way.

[00:11:17] Speaker 00:
It recites a specific sequence of steps to achieve that result.

[00:11:21] Speaker 00:
You have to generate logs of inbound and outbound packets, correlate those logs against one another,

[00:11:27] Speaker 00:
use that correlation to generate the new data identifying the host, and then communicate that data to a system where it can be used to diagnose threats.

[00:11:36] Speaker 00:
So this is not just a result.

[00:11:37] Speaker 00:
It's telling you how to get there.

[00:11:39] Speaker 00:
So even if this court is inclined to affirm on infringement, we would encourage the court to reject the commission's 101 analysis, or at a minimum, not rely upon 101 as the basis for its decision.

[00:11:51] Speaker 02:
But we wouldn't have to.

[00:11:52] Speaker 02:
I mean, we could go either way.

[00:11:53] Speaker 02:
If it's an affirmance, we could affirm unknowing infringement without reaching the eligibility, because under ITC, there's no further consequence other than the exclusion order, correct?

[00:12:04] Speaker 00:
That's correct, Judge Bros.

[00:12:05] Speaker 00:
You have the authority to correct the 101 decision, but you do not need to do so.

[00:12:10] Speaker 00:
We would encourage the court, once again, at a minimum, not to endorse the 101 reasoning as the basis for its decision.

[00:12:19] Speaker 02:
Thank you.

[00:12:19] Speaker 02:
Thank you.

[00:12:30] Speaker 03:
Good morning.

[00:12:32] Speaker 03:
Good morning.

[00:12:33] Speaker 03:
May it please the court?

[00:12:34] Speaker 03:
For the 370 patent, the commission found no violation based on non-infringement of seven different limitations, a lack of technical prom.

[00:12:42] Speaker 05:
Let me ask you a couple of housekeeping questions.

[00:12:44] Speaker 05:
I think Judge Prost raised at least one.

[00:12:50] Speaker 05:
You argue since Tripital has waived most of its arguments.

[00:12:55] Speaker 05:
In fact, I think you pretty much say all of them between the two of you.

[00:13:00] Speaker 05:
If we agreed with you, would there be any issues left for us to reach the merits?

[00:13:05] Speaker 03:
So I don't think there is, Your Honor.

[00:13:06] Speaker 02:
On both the 9-1-7 and the 3-7-0?

[00:13:09] Speaker 03:
So in the 917, the only issue they preserved is that source fire can't display time data.

[00:13:16] Speaker 03:
On the 370 patent, they need to win on absolutely every issue, because everyone individually supports that finding of no violation.

[00:13:23] Speaker 03:
And they can't do that, because they waived several aspects, as Judge Wallach had mentioned.

[00:13:28] Speaker 03:
So the only issue left on that.

[00:13:29] Speaker 02:
Why don't you just deal with the waiver point, just very briefly?

[00:13:33] Speaker 03:
OK.

[00:13:34] Speaker 03:
So if everything is waived, the only thing that remains is the- But it's waived because?

[00:13:40] Speaker 03:
The 917?

[00:13:40] Speaker 03:
No, the 370.

[00:13:42] Speaker 03:
So this is a 370 patent.

[00:13:44] Speaker 03:
Their opening appeal brief does not mention the identify and communicate aspects of elements E and F. And they only mention that in a reply brief footnote, where a centripetal argues that that issue is bound up in the meaning of device.

[00:13:57] Speaker 03:
But that argument was made too late.

[00:13:59] Speaker 03:
It's in a reply brief.

[00:14:00] Speaker 03:
It's also wrong.

[00:14:01] Speaker 03:
The ALJ's findings on Appendix 70

[00:14:04] Speaker 03:
I found that the communication limitation is unsatisfied.

[00:14:07] Speaker 02:
Well, it's also wrong, but that's not... I asked you about the waiver portion of your argument, not the merits portion.

[00:14:12] Speaker 03:
Okay.

[00:14:13] Speaker 03:
Strictly about waiver, there is nothing left in the 370.

[00:14:15] Speaker 03:
The court could just affirm the commission based solely on waives.

[00:14:21] Speaker 02:
Based solely on... I didn't hear what you said.

[00:14:23] Speaker 03:
On waiver.

[00:14:24] Speaker 03:
Oh, okay.

[00:14:24] Speaker 02:
Well, that's what I wanted to get to.

[00:14:25] Speaker 03:
You could pick any of our various forms of waiver.

[00:14:27] Speaker 03:
If one of them applies, there's no reason to address the merits of the 370.

[00:14:31] Speaker 03:
Pick your best one.

[00:14:34] Speaker 03:
One very solid one is, I mean, it's hard to pick.

[00:14:37] Speaker 03:
They're all my best friends.

[00:14:40] Speaker 05:
I love all my waivers equally.

[00:14:43] Speaker 03:
Yes.

[00:14:44] Speaker 03:
For the technical prong, the commission, or the ALJ below, found that Centripetal waived its argument because it completely changed its argument from the pre-hearing brief to the post-hearing.

[00:14:53] Speaker 02:
OK, so there are waivers with respect to the briefing here, and then there are waivers with respect to the

[00:14:58] Speaker 03:
That's correct.

[00:14:59] Speaker 03:
So that was a waiver made before the ALJ.

[00:15:01] Speaker 03:
The ALJ made her finding based in part on waiver.

[00:15:05] Speaker 03:
Then, at the appellate level, neither of centripetal's appeal briefs addressed that finding of waiver at all.

[00:15:12] Speaker 03:
I mean, that waiver is important because they changed their argument.

[00:15:15] Speaker 03:
Like, Keysight, if they had proper notice, might have presented different evidence.

[00:15:19] Speaker 03:
So that waiver alone supports a finding of no violation.

[00:15:26] Speaker 02:
But moving on to the only other.

[00:15:27] Speaker 02:
But then we would still have to deal with the eligibility.

[00:15:30] Speaker 02:
That wipes out the non-infringement, right?

[00:15:33] Speaker 02:
How does that wipe out the eligibility?

[00:15:36] Speaker 03:
So they're trying to find a finding of violation.

[00:15:39] Speaker 03:
A violation, they need to establish everything.

[00:15:41] Speaker 03:
They need to establish that it's infringement and an eligibility.

[00:15:45] Speaker 03:
So if it's not infringed, it doesn't really matter if it's eligible.

[00:15:49] Speaker 05:
And Judge Prost raised this, but if we were to affirm in the companion case,

[00:15:55] Speaker 05:
the 1097.

[00:15:58] Speaker 05:
Would there be any outstanding issue to resolve 917 Patton in this field?

[00:16:05] Speaker 03:
No, as Judge Stark mentioned, the claims would be canceled.

[00:16:08] Speaker 03:
And then it doesn't really matter what the commission did, because the claims are going to be gone.

[00:16:11] Speaker 02:
And the two claims on the cross-appeal, I don't know if you followed the previous thing.

[00:16:15] Speaker 02:
We've got two claims that survived the IPR.

[00:16:18] Speaker 02:
Those are not an issue in this case.

[00:16:22] Speaker 03:
Correct.

[00:16:23] Speaker 03:
It's just claims 11 and 20, which were found multiple times.

[00:16:27] Speaker 01:
If we were, I think we're all on the same page on the 917 and the implications potentially of the first case for this one.

[00:16:33] Speaker 01:
But if we were to reach the 917 in this case, they emphasize the time data, but they also have secondary consideration evidence that I think is not part of the first.

[00:16:44] Speaker 01:
appeal.

[00:16:45] Speaker 01:
Could I just have you quickly address that?

[00:16:49] Speaker 01:
I'm right that they're secondary.

[00:16:51] Speaker 01:
They make this argument, for instance, at Graybrief at page 15, that the ALJ had a circular assertion that the 917 patent did not solve a long-standing industry need because the claim to mention had already been disclosed by Sourcefire, which they say is circular and kind of funny

[00:17:11] Speaker 01:
to conflate what's in the prior art that made out the prima facie case of obviousness, and then use that also to undercut the secondary consideration evidence.

[00:17:22] Speaker 01:
Could you address that?

[00:17:24] Speaker 03:
Sure.

[00:17:24] Speaker 03:
So this case is somewhat unique.

[00:17:25] Speaker 03:
That source fire is an obviousness reference, but it did not require modification.

[00:17:30] Speaker 03:
I don't really know why that happened, but that's what happened.

[00:17:31] Speaker 01:
It's a single reference obviousness.

[00:17:33] Speaker 03:
It's a single reference obviousness did not require modification.

[00:17:36] Speaker 03:
So you can't really have a long felt need if there was a product that did exactly what the claim said.

[00:17:43] Speaker 03:
And that's what the court found in Zupp.

[00:17:45] Speaker 03:
Zupp was not even, I think that was just the core of the invention previously existed.

[00:17:51] Speaker 01:
So it may be circular, but at least in a single reference obviousness context, it's also the logical, common sense conclusion, I guess?

[00:17:59] Speaker 03:
I think that absolutely.

[00:18:01] Speaker 03:
You're saying you have a long felt need, but there's a product that already exists that does it.

[00:18:05] Speaker 03:
How is that a long felt need?

[00:18:06] Speaker 03:
It's already being met by the source buyer products.

[00:18:11] Speaker 03:
If I could just touch on time data, the claims don't require the display of time data.

[00:18:16] Speaker 03:
They specifically say that you need to just display a portion of the packet flow analysis data.

[00:18:21] Speaker 03:
There's no reason that portion has to be time data.

[00:18:23] Speaker 03:
And there's no real dispute that source buyer displays the threat identifier and the blocked allowed information, which is also packet flow analysis data.

[00:18:33] Speaker 03:
So their only argument that they preserved is about this time data that isn't even required by the fact.

[00:18:39] Speaker 02:
And if there's no further questions, I think I've kept up.

[00:18:46] Speaker 02:
You're dividing argument here, and you've already used.

[00:18:48] Speaker 02:
Did we start at 15?

[00:18:50] Speaker 02:
We started at 8.

[00:18:51] Speaker 02:
8.

[00:18:52] Speaker 02:
OK, I'm sorry.

[00:18:53] Speaker 03:
Go ahead.

[00:18:54] Speaker 03:
OK, so I think my arguments are well set forth in my briefs.

[00:18:58] Speaker 03:
I'm open to any questions, if anyone has any.

[00:19:01] Speaker 03:
Okay.

[00:19:03] Speaker 03:
Thank you.

[00:19:03] Speaker 02:
Mr. Mitchell.

[00:19:19] Speaker 04:
Good morning, Your Honors.

[00:19:21] Speaker 04:
Jonah Mitchell.

[00:19:23] Speaker 04:
At the risk of jumping ahead, I imagine I'm going to get the housekeeping questions too to make sure we're all on the same page.

[00:19:31] Speaker 04:
So I figured I should cut to the chase.

[00:19:33] Speaker 04:
And I think what you heard from ITC counsel were aligned from that perspective.

[00:19:40] Speaker 04:
In other words, the court's findings on if the waiver findings are upheld, that's the end of the story.

[00:19:48] Speaker 04:
And then as it relates to the 917 patent, if the IPR findings are upheld, that's the end of the story on invalidity.

[00:19:57] Speaker 04:
So I want to be mindful of everyone's time to the extent that there are questions.

[00:20:02] Speaker 04:
I want to make sure that I do address them with you.

[00:20:05] Speaker 04:
But I thought at least I would maybe, given what I had heard from the panel before, try to figure out how best to focus the time.

[00:20:13] Speaker 05:
Well, you've answered mine.

[00:20:14] Speaker 04:
OK.

[00:20:15] Speaker 02:
So you want to spend a little time on eligibility then?

[00:20:18] Speaker 04:
Yeah, I mean, I think the Commission's findings are rock solid there.

[00:20:25] Speaker 04:
And I think this class of claims, which the ITC found, fell in the collection of information, analysis of information, and communicating results.

[00:20:38] Speaker 04:
There is a long line of precedent that recognizes that those types of claims, pure information claims, are abstract.

[00:20:45] Speaker 04:
Electric power is one of those cases.

[00:20:47] Speaker 04:
There's been many other cases that have dealt with those claims in the same fashion.

[00:20:53] Speaker 04:
The nature of the claimed elements are pure generic components, conventional technology.

[00:21:04] Speaker 04:
result-based language, too, which is one of the other hallmarks of abstractness as well.

[00:21:10] Speaker 04:
So I think the Commission's findings, which set up these issues, are absolutely in line with this Court's presence.

[00:21:16] Speaker 01:
You've used the word findings twice.

[00:21:18] Speaker 01:
Is that intentional?

[00:21:19] Speaker 01:
Were they fact findings by the Commission?

[00:21:21] Speaker 01:
No, there are.

[00:21:22] Speaker 01:
Get the question out.

[00:21:23] Speaker 01:
Were they fact findings by the Commission at step one as to what these claims are directed to?

[00:21:29] Speaker 04:
The commission did receive evidence, as you observed, Your Honor, on that issue, in addition to her own analysis that she conducted.

[00:21:40] Speaker 04:
But yes, evidence was received from both parties at the step one and the step two issues, which is a little bit unusual in terms of how these cases.

[00:21:48] Speaker 01:
Are they fact findings in this case that we would review deferentially, or is step one still a question of law under our law?

[00:21:57] Speaker 04:
I mean, I think under the law, I don't think that this has been squarely addressed.

[00:22:02] Speaker 04:
I still tend to think of it as a question of law.

[00:22:05] Speaker 04:
But I don't know that this has really been teed up.

[00:22:08] Speaker 01:
As a matter of law with this patent, how do I decide that this is not a technical solution to a technical problem?

[00:22:16] Speaker 01:
How do I know that?

[00:22:18] Speaker 04:
In view of the court's prior precedence,

[00:22:21] Speaker 04:
addressing the same types of claims in the same way that the court has addressed these types of claims before, which again are pure information manipulation claims using purely result-based functional language.

[00:22:37] Speaker 04:
And there's plenty of precedent recognizing that those claims are abstract.

[00:22:53] Speaker 02:
We'll give you three minutes for your battle.

[00:22:56] Speaker 00:
Thank you.

[00:22:57] Speaker 00:
Thank you, Your Honor.

[00:22:57] Speaker 00:
Just a few brief points.

[00:22:59] Speaker 00:
I think based on the argument from my friends here, everyone agrees that the time data issue was preserved on the merits.

[00:23:07] Speaker 00:
That issue cuts across both appeals you heard this morning.

[00:23:10] Speaker 00:
And that issue does not turn on the claim construction dispute.

[00:23:13] Speaker 00:
So this court does need to reach the time data issue on the merits to resolve these appeals.

[00:23:18] Speaker 01:
That's entirely inconsistent with what you told me before.

[00:23:20] Speaker 01:
If we were to affirm

[00:23:23] Speaker 01:
the unpatentability findings of the 917 claims in the first appeal, even if we don't reach time data.

[00:23:30] Speaker 01:
Maybe we do, maybe we don't.

[00:23:32] Speaker 01:
It doesn't matter.

[00:23:33] Speaker 01:
If the claims are dead, you can't get an exclusion order.

[00:23:37] Speaker 00:
That's exactly correct, Judge Stark.

[00:23:38] Speaker 00:
But to resolve the first appeal, the time data issue on obviousness is separate.

[00:23:42] Speaker 00:
OK.

[00:23:43] Speaker 01:
Your point is about the first appeal.

[00:23:45] Speaker 01:
You're not saying no matter what we have to address time data in this appeal.

[00:23:49] Speaker 01:
That is correct.

[00:23:49] Speaker 00:
I'm just saying the issue is presented in both appeals and is just positive of both.

[00:23:54] Speaker 02:
Do you want to push back on some of the waiver points that have been made?

[00:23:57] Speaker 00:
With respect to the 370, Your Honor?

[00:23:59] Speaker 00:
Yeah, I would just come back to the point.

[00:24:00] Speaker 00:
We put in our brief exactly where we had preserved the arguments below.

[00:24:05] Speaker 00:
I take the point that we could have been clearer about the generate and identify limitations.

[00:24:10] Speaker 00:
We believe that turns on the same issue as the provisioning limitation.

[00:24:14] Speaker 00:
But I would like to just use my time to briefly touch on the merits of the time data issue about whether a portion of the data needs to be displayed.

[00:24:22] Speaker 00:
We agree that only a portion of the flow level data needs to be displayed to practice these claims.

[00:24:28] Speaker 00:
You don't need to display all of the flows all of the time in the dashboard.

[00:24:32] Speaker 00:
But that's very different than saying it doesn't matter whether it's even possible to display time data in the prior ART.

[00:24:38] Speaker 00:
And that's the problem in Sourcefire.

[00:24:40] Speaker 00:
There's no evidence in this record that it's possible to display time data when analyzing multiple packets at once.

[00:24:47] Speaker 00:
Judge Stark, briefly on your point about secondary considerations, ZUP is a very different case.

[00:24:53] Speaker 00:
In ZUP, the parties agreed about the disclosures in the prior art, and the dispute was just motivation to combine.

[00:24:59] Speaker 00:
So you had a situation where the parties said, we agree the prior art is very close to the patented invention.

[00:25:05] Speaker 00:
What do we do about that gap on motivation to combine?

[00:25:07] Speaker 00:
Here you have a factual dispute about the differences between the patented invention and source fire.

[00:25:12] Speaker 00:
The court should have looked to the secondary considerations to resolve that dispute, and instead it got the analysis backward and said, because I find that this prior reference already disposes the invention, I don't need to consider those secondary considerations at all.

[00:25:26] Speaker 00:
And then finally on section 101, I did not hear my friends provide a reason why these claims are not directed to a problem that arises in computer networks.

[00:25:37] Speaker 00:
And if you agree with me on that, that distinguishes electric power, bridge and post, and other cases where computers were just used as tools.

[00:25:44] Speaker 00:
And then you have to ask, is the invention providing a specific and concrete solution?

[00:25:50] Speaker 00:
And here the claims are much more similar to those found patent-eligible in SRI and in ONFISH.

[00:25:55] Speaker 00:
than they are to claims like custom media or Hawk.

[00:26:00] Speaker 02:
Perfect timing.

[00:26:01] Speaker 02:
Thank you very much.

[00:26:03] Speaker 02:
We thank both sides.