[00:00:00] Speaker 04:
Our last case this morning is centripetal networks versus Keysight Technologies, 2024-2246.

[00:00:08] Speaker 04:
Mr. Lerman.

[00:00:12] Speaker 01:
Thank you very much, Your Honor.

[00:00:13] Speaker 01:
I may please support Dan Lerman for centripetal networks.

[00:00:18] Speaker 01:
I'd like to focus on two issues here today.

[00:00:20] Speaker 01:
The first is the board's construction of the corresponding action limitation.

[00:00:25] Speaker 01:
And the second is the board's holding with regard to Altman that it discloses that same limitation.

[00:00:31] Speaker 01:
The board construed performing a corresponding action to include quote, merely allowing a packet to be re-encrypted and transmitted.

[00:00:39] Speaker 01:
It therefore held that the IPUG reference anticipated the claim limitation because IPUG discloses, quote, merely allowing a packet to be transmitted.

[00:00:49] Speaker 01:
But merely allowing a packet is not a corresponding action.

[00:00:52] Speaker 01:
It is the absence of a corresponding action.

[00:00:55] Speaker 01:
And the patent makes this clear in several ways.

[00:00:58] Speaker 01:
First, the specification tells us that the corresponding action is the application of what it calls intermediating logic.

[00:01:05] Speaker 01:
It does this because it discloses a yes pathway and a no pathway in the patent.

[00:01:11] Speaker 01:
Nearly allowing a packet to proceed without more is the no pathway.

[00:01:15] Speaker 01:
That is the pathway where there is no application of intermediating logic.

[00:01:19] Speaker 01:
The corresponding action corresponds to the yes pathway.

[00:01:22] Speaker 01:
This is in figure one of the specification.

[00:01:25] Speaker 01:
So the patent makes clear that there's a distinction between merely allowing and allowing plus the application of intermediating logic.

[00:01:33] Speaker 01:
And it makes clear that the corresponding action is the application of intermediating logic.

[00:01:37] Speaker 03:
So I'm sorry.

[00:01:40] Speaker 03:
I'm no patent lawyer, so bear with me.

[00:01:47] Speaker 03:
They're unencrypting it and then re-encrypting it and sending it on, right?

[00:01:52] Speaker 03:
Something must have happened in the middle.

[00:01:55] Speaker 01:
No, Your Honor.

[00:01:57] Speaker 01:
The board held that the only action here is merely allowing.

[00:02:01] Speaker 01:
It didn't say that it's that application of any decision or access policy and we can turn to that.

[00:02:06] Speaker 01:
The only thing that happens in the middle is just allowing.

[00:02:09] Speaker 01:
That is what the specification makes clear and that's what the claim language makes clear.

[00:02:14] Speaker 01:
The claim language makes clear that the corresponding action needs to be different from the separately claimed limitations of re-encrypting and transmitting.

[00:02:23] Speaker 03:
But why are they allowing it if they haven't done something in the middle?

[00:02:26] Speaker 01:
The specification tells us that it might have decrypted it for no reason, and therefore the system might have wasted its time.

[00:02:33] Speaker 01:
But the specification makes very clear that in that case, when it is allowing it to proceed without taking any intermediating logic, it is not applying a corresponding action within the meaning of the patent.

[00:02:45] Speaker 01:
But intermediating logic, it gives some examples.

[00:02:48] Speaker 01:
We can see that they're not exclusive, but the examples are things like transforming the data.

[00:02:53] Speaker 01:
So you could be altering it in some way, or removing a header, or you could be redirecting it, or as the word found, blocking it.

[00:03:00] Speaker 01:
Or it could be logging and capturing the data in some way.

[00:03:02] Speaker 01:
These are all the examples of what the patent calls intermediating logic.

[00:03:07] Speaker 01:
And it says that responds to the correspondence.

[00:03:10] Speaker 03:
But if you're looking at it, like you unencrypted it by accident.

[00:03:14] Speaker 03:
You decided that you unencrypted it by accident, and then you allowed it to go on, right?

[00:03:20] Speaker 01:
Yes, Your Honor.

[00:03:21] Speaker 03:
Isn't that deciding that you did it by accident?

[00:03:23] Speaker 01:
Enough of a... I think what your honor is getting at is perhaps there's a decision, and we don't dispute that there is at some point an upstream decision to allow or do something else.

[00:03:35] Speaker 01:
There are two responses to that.

[00:03:37] Speaker 01:
The first is this I think ties into the argument that they make on appeal for firmness and alternative ground, which is that IPOV, which is the reference here, has what it calls access policies that make a decision as to what to do to a packet.

[00:03:50] Speaker 01:
The board made abundantly clear that the access policies, which correspond to the decision, that's the matching and that's deciding what to do with the packet, the board made clear that that is not the corresponding action.

[00:04:01] Speaker 01:
It said that that corresponds, for lack of a better word, to limitation 1E, the matching stage.

[00:04:06] Speaker 01:
It said that the corresponding action is merely allowing, full stop.

[00:04:11] Speaker 01:
And the second answer is just to return again to the specification, which makes clear that even though there is a decision, there is a decision made before you allow.

[00:04:18] Speaker 01:
There's a decision made before you block.

[00:04:19] Speaker 01:
There's a decision made before these things.

[00:04:21] Speaker 01:
But the board said the blocking is the action.

[00:04:23] Speaker 01:
And it said the allowing is the action.

[00:04:26] Speaker 01:
It's not some sort of upstream decision that preceded the action.

[00:04:29] Speaker 01:
And the claims make this clear, too, because you can't re-encrypt and transmit unless you allow.

[00:04:34] Speaker 01:
So everything that is transmitted is allowed.

[00:04:37] Speaker 01:
The corresponding action does no work there if all it's doing is jumping over the corresponding action step.

[00:04:43] Speaker 02:
Would you agree that stuff that's allowed, that's what 1G is about?

[00:04:47] Speaker 02:
1G would include?

[00:04:49] Speaker 02:
packets that are alive.

[00:04:51] Speaker 01:
Well, but that is our point, Your Honor, that because 1G includes packets that are allowed, the corresponding under-the-boards theory in which the corresponding action is the allowing, it's rendered redundant, because you could get there just by virtue of 1G, because 1G, Your Honor, I think is correct.

[00:05:07] Speaker 02:
No, no.

[00:05:07] Speaker 02:
I mean, I'm not saying your logic of your saying that it's redundant, because 1G says re-encrypting after performing the corresponding act.

[00:05:19] Speaker 02:
And you're agreeing that allowed packets could come under 1G for purposes of re-encrypting, which suggests that the corresponding action occurred in 1F, and that was to allow.

[00:05:31] Speaker 01:
I mean, I think I just disagree.

[00:05:33] Speaker 01:
I think for that to work, Your Honor, the corresponding action has to be before the re-encrypting and re-translation.

[00:05:39] Speaker 01:
I agree.

[00:05:40] Speaker 01:
Right.

[00:05:40] Speaker 02:
So if the corresponding action happens in 1F.

[00:05:43] Speaker 01:
And if the corresponding action is allow, then it can also be allowing in 1G.

[00:05:48] Speaker 01:
That's my only point there, Your Honor.

[00:05:50] Speaker 02:
But we're not saying allowing.

[00:05:52] Speaker 02:
1G is about re-encrypting after performing the corresponding action.

[00:05:58] Speaker 02:
Does that make sense?

[00:05:59] Speaker 01:
I mean, I think it makes sense.

[00:06:00] Speaker 01:
I still think it renders the corresponding action redundant.

[00:06:02] Speaker 01:
Because even if you took out 1F, you would still have re-encrypting and transmitting.

[00:06:07] Speaker 01:
You could just remove 1F entirely in this case.

[00:06:09] Speaker 01:
And I think your Honor's understanding would still happen.

[00:06:12] Speaker 01:
But again, just turning to the specification, even aside from the claim language, and I think the claim language makes clear that it needs to be an action, and I think allowing is the opposite of an action.

[00:06:22] Speaker 01:
It needs to be an action taken on the packet, and it needs to be an action distinct from retransmitting.

[00:06:27] Speaker 01:
That's what the claim says.

[00:06:28] Speaker 01:
But the specification makes abundantly clear, and the board did not dispute, that it is the application of intermediating logic that is the corresponding action.

[00:06:36] Speaker 01:
And the intermediating logic is allowing plus.

[00:06:39] Speaker 01:
That's why one of the examples that it gives in the specification, in addition to transforming, is allowing plus capturing and logging.

[00:06:47] Speaker 01:
If allowing was enough, it would have just said allowing.

[00:06:50] Speaker 01:
But figure one of the specification makes clear that merely allowing does not entail the application of intermediating logic.

[00:06:57] Speaker 01:
And if you look at the board's analysis of the Altman claim limitation, which I'll turn to in a second, on page 59, when discussing Altman, it says that the system determines what actions should be taken, for example, no action, which is allowing the packet to proceed.

[00:07:13] Speaker 01:
The board elsewhere seems to acknowledge that allowing is the absence of an action, and that is what the specification makes clear.

[00:07:21] Speaker 01:
It makes it clear in the figure.

[00:07:23] Speaker 01:
It makes it clear in the examples of the intermediating logic.

[00:07:26] Speaker 01:
And it makes it clear in the claim language.

[00:07:27] Speaker 01:
And the board did not address any of those.

[00:07:31] Speaker 01:
All the board said was that the examples of intermediating logic are not exhaustive.

[00:07:36] Speaker 01:
So there could be other types of intermediating logic.

[00:07:39] Speaker 01:
But that misses the point.

[00:07:40] Speaker 01:
We agree that they're not exhaustive.

[00:07:42] Speaker 01:
But where we disagree is that the patent makes expressly clear

[00:07:46] Speaker 01:
that there has to be some application of intermediating logic.

[00:07:50] Speaker 01:
That is the corresponding action.

[00:07:52] Speaker 01:
If you read the patent on page 93 of the appendix in column 6, it says that if there is a correspondence, then you move to the intermediating logic and the application of intermediating logic.

[00:08:04] Speaker 01:
The correspondence is the corresponding action.

[00:08:07] Speaker 01:
So a specification tells you

[00:08:09] Speaker 01:
that the corresponding action is the application of intermediating logic, full stop.

[00:08:14] Speaker 01:
It also tells you that when you merely allow, you are not applying any intermediating logic.

[00:08:19] Speaker 01:
And the board did not make your honors argument, which is that it's somehow this threshold decision.

[00:08:23] Speaker 01:
I think the board expressly rejected that.

[00:08:26] Speaker 01:
If you look at PGE,

[00:08:31] Speaker 01:
32 of the appendix, which is also 32 of the written decision, when it's talking about whether or not Keysight had waived a particular argument based upon the access policies, it makes clear that applying the policy generates the decision.

[00:08:46] Speaker 01:
And that's at 1E, that's at the matching step.

[00:08:50] Speaker 01:
that causes the system to perform the action, and it says the action is allowing the packet with or without logging it.

[00:08:57] Speaker 01:
So I think the Board's factual findings are inconsistent with the argument that a decision to allow is the allowing itself.

[00:09:05] Speaker 01:
If I could turn now to the Altman claim, Your Honor.

[00:09:11] Speaker 01:
The question here, again, is whether or not Altman anticipates performing a corresponding action on packets before those same packets are re-encrypted and transmitted.

[00:09:24] Speaker 01:
What Altman discloses is two computers that are relevant here.

[00:09:28] Speaker 01:
It calls it the SIA and the NMC.

[00:09:31] Speaker 01:
It's understood that the SIA does not perform a corresponding action.

[00:09:35] Speaker 01:
What it does is it encrypts, it decrypts and re-encrypts traffic in an ongoing process.

[00:09:40] Speaker 01:
And at the same time, it sends a copy of the plain text packet to the NMC.

[00:09:44] Speaker 01:
So it's undisputed that if anything performs the corresponding action, it's the NMC.

[00:09:49] Speaker 01:
But it's also undisputed that the NMC operates only on copies of the plain text packets.

[00:09:55] Speaker 01:
So any corresponding action that it performs is not performed on the copies of the packets that are actually sent back and forth by the SIA.

[00:10:04] Speaker 01:
The board did not appreciate this.

[00:10:06] Speaker 01:
The board simply said that because the SIA forwards this traffic in what it calls an ongoing basis, there is some sort of transmission that occurs after a corresponding action.

[00:10:16] Speaker 01:
What the board did not address and what it did not find was that the corresponding action has to be on the same packets that are re-encrypted and transmitted.

[00:10:25] Speaker 01:
And the board made another error here that I think collapses this issue to the same claim construction issue that I was just addressing.

[00:10:31] Speaker 02:
Can I ask you just to step back a moment on the issue you're addressing now about the same computing device or the same process, right?

[00:10:41] Speaker 01:
I'm not addressing the computing device limitation.

[00:10:43] Speaker 01:
I'm sorry.

[00:10:43] Speaker 01:
I'm addressing only two Altman arguments.

[00:10:45] Speaker 01:
One is the computing device.

[00:10:47] Speaker 01:
I mean to be discussing a different... Sorry.

[00:10:50] Speaker 01:
argument here so if I could just step back and uh... uh... re-articulate it uh... one of our arguments is that Altman does not disclose performing a corresponding action on the packets before they're retransmitted this is separate from the question whether it has to be a single computer or two computers our argument is that because

[00:11:09] Speaker 01:
it is undisputed that the SIA and the NMC are these sort of two processes that occur, are acting in parallel.

[00:11:15] Speaker 01:
The NMC is only performing a corresponding action on copies of the packets, not on the original packets that are transmitted.

[00:11:22] Speaker 01:
But if you look at the Brewer's holding, what the Brewer held is that it said that although Altman does not state when the re-encryption occurs, and I'm sorry, this is on page 59 of the appendix, a person with skill would infer that

[00:11:36] Speaker 01:
the encryption towards the opposite party occurs after the NMC signals the decision to allow the packet.

[00:11:42] Speaker 01:
That's on page 59.

[00:11:44] Speaker 01:
On the next page, it reiterates that the NMC performs the corresponding action by, quote, instructing the SIA to allow the packet.

[00:11:51] Speaker 01:
It seems like what the board is saying here is that the allowing is the corresponding action.

[00:11:57] Speaker 01:
If that is true, and I don't think Keysight reiterated that, but if that is true,

[00:12:01] Speaker 01:
This comes down to the same claim construction argument, which is whether allowing is a corresponding action.

[00:12:07] Speaker 01:
That was what we just talked about with respect to the IPUG reference.

[00:12:10] Speaker 01:
I understood Keysight to be relying on Altman because it showed something other than allowing.

[00:12:14] Speaker 01:
And that's why we said in our brief that Altman has to be addressing something other than allowing.

[00:12:18] Speaker 01:
But the board seemed to focus simply on the decision to allow.

[00:12:22] Speaker 01:
So if that's the case, I would submit that this just becomes the same allowing issue.

[00:12:27] Speaker 01:
And I'll again note that the board here said allowing is, quote, no action.

[00:12:31] Speaker 01:
which seems to undermine its assertion that allowing is a corresponding action.

[00:12:35] Speaker 01:
So just to recap, on this issue here with Altman, there are only three potential actions in play that are discussed by either Altman itself or the board.

[00:12:44] Speaker 01:
There is blocking a packet, which is described as a consequent action that the NMC could perform.

[00:12:49] Speaker 01:
We know that blocking can't satisfy the claim limitation, because if a packet is blocked, it's not re-encrypted and transmitted.

[00:12:56] Speaker 01:
And the board said that.

[00:12:57] Speaker 04:
The board agreed.

[00:12:58] Speaker 04:
Do you want to save you a couple of times?

[00:13:01] Speaker 01:
Oh, just give me 12 seconds, Your Honor.

[00:13:03] Speaker 01:
Just to say that the only three actions here are blocking, allowing, and logging.

[00:13:08] Speaker 01:
Blocking can't do it because it's be a corresponding action because it's not retransmitted.

[00:13:12] Speaker 01:
Allowing, we would submit doesn't qualify under our construction.

[00:13:16] Speaker 01:
And the logging is really, I think, the only thing in play here.

[00:13:18] Speaker 01:
But if the NMC logs and does anything to those packets, it's on the copies of the packets and not on the ones that are re-encrypted and transmitted.

[00:13:26] Speaker 01:
And I'd like to save my remaining time, Your Honor.

[00:13:29] Speaker 04:
Thank you.

[00:13:39] Speaker 00:
Good morning, Your Honors.

[00:13:40] Speaker 00:
May it please the court, Gerard Donovan, for key sight.

[00:13:43] Speaker 00:
The 526 patent claims a process for selectively decrypting and inspecting traffic that was already disclosed by both IPUG and Altman.

[00:13:52] Speaker 00:
Centripetal's appeal comes down to meritless procedural arguments that ignore the board's fact finding and requests for this court to reweigh the evidence in its favor.

[00:14:02] Speaker 00:
Controlling standard of review does not provide a path to reversal.

[00:14:05] Speaker 02:
Well, Sethy's got at least one, if not more, claim construction arguments.

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

[00:14:10] Speaker 00:
Yes, Your Honor.

[00:14:11] Speaker 00:
They have two claim construction arguments.

[00:14:13] Speaker 00:
You don't need to reach those claim construction arguments, because the fact finding from the board establishes validity even under the constructions.

[00:14:20] Speaker 02:
Well, that kind of surprised me opening up your brief, because your lead argument on several issues was

[00:14:28] Speaker 02:
There can be an alternative finding, which the board never reached.

[00:14:32] Speaker 02:
And it often does.

[00:14:33] Speaker 02:
Sometimes it does alternatives.

[00:14:35] Speaker 02:
But it didn't do so in the case of corresponding action.

[00:14:38] Speaker 02:
And your lead argument defending ostensibly the board's opinion was to an analysis that it didn't include a rely on.

[00:14:49] Speaker 02:
And that likely, if you look at our precedent at the most, if we reject the other argument, what the board did, we would remand it for intermingling.

[00:14:58] Speaker 02:
So frankly, it kind of took me aback that you weren't trying to defend the board decision.

[00:15:02] Speaker 02:
You were trying to defend it on a basis that the board never reached.

[00:15:06] Speaker 02:
Am I mistaken in how I'm viewing this?

[00:15:09] Speaker 00:
We viewed it as the board's fact-finding, establishing that alternative basis as well.

[00:15:14] Speaker 00:
So the board, in describing how iPub works,

[00:15:17] Speaker 02:
explained that it performs a process where it decrypts the packets, inspects them, and then apparently- OK, well, speaking only for myself, I'd rather you went to the arguments which defend what the board did, because I don't feel personally that I'm in a position to make those observations that the board didn't make.

[00:15:37] Speaker 00:
Yes, Your Honor.

[00:15:38] Speaker 00:
The board construed corresponding action and a computing device in accordance with this court's guiding principles, the intrinsic record, and those constructions in support of our rights.

[00:15:48] Speaker 00:
First, the board correctly construed performing a corresponding action to not exclude an action of allowing traffic to continue after decryption.

[00:15:58] Speaker 00:
The claim language does not impose a narrow meaning of corresponding action.

[00:16:02] Speaker 00:
It doesn't carve out any specific actions.

[00:16:04] Speaker 00:
It doesn't exclude any specific actions.

[00:16:06] Speaker 00:
It doesn't exclude allowing.

[00:16:08] Speaker 00:
The board addressed the claim differentiation argument that appellees advance and explained that allowing is not subsumed within the surrounding claim elements.

[00:16:18] Speaker 00:
You have the step of decrypting, and then you separately have the step of performing a corresponding action.

[00:16:25] Speaker 00:
Allowing is a corresponding action because if you do not allow, you never get to the following steps.

[00:16:29] Speaker 00:
You never get to the re-encryption or the transmission.

[00:16:34] Speaker 00:
So allowing has a separate scope.

[00:16:36] Speaker 00:
And that was addressed by the board at appendix 58.

[00:16:43] Speaker 00:
I'm sorry.

[00:16:44] Speaker 00:
at appendix 12, where it addressed the claim differentiation and the different meanings between these different terms.

[00:16:50] Speaker 00:
The specification also doesn't exclude allowing as a corresponding action.

[00:16:56] Speaker 00:
The specification centrally acknowledges that the corresponding action is not for the board, that it's not limited to the examples in the specification.

[00:17:05] Speaker 00:
But the specifications disclosure of the intervening logic reinforces the board's construction.

[00:17:10] Speaker 02:
Well, I thought the board rested more on the fact that the specification talks about blocking and allowing is the opposite of blocking.

[00:17:17] Speaker 00:
It does.

[00:17:19] Speaker 00:
Yes, Your Honor, because blocking was what the specification disclosed as an example of intervening logic.

[00:17:24] Speaker 00:
And they explained that the specifications disclosure of performing the intervening logic on the packets, one example is blocking.

[00:17:33] Speaker 00:
And that shows that allowing would also be an example of a corresponding action.

[00:17:38] Speaker 00:
And that makes sense because the determination of whether or not to block a packet in a cybersecurity sense is also a determination of whether to allow it.

[00:17:46] Speaker 00:
I want to step back, and the 526 patent is disclosing, it discloses, TAUTS is one of its benefits, a cybersecurity system that can selectively decrypt packets, inspect their contents, and this intervening action or intervening logic allows it to inspect and determine whether or not to allow the packets.

[00:18:04] Speaker 00:
That's the cybersecurity purpose of this.

[00:18:07] Speaker 00:
When you're inspecting a packet for cybersecurity to determine whether or not to allow it, that determination to allow is probably the most significant action in the process, because that's the threshold that has to be met before you get to the following steps of the re-encryption and transmission.

[00:18:23] Speaker 00:
And that's typical in security systems.

[00:18:27] Speaker 00:
came in downstairs, the security guards weren't passively allowing everyone into the courthouse.

[00:18:33] Speaker 00:
They inspect, and they selectively allow.

[00:18:37] Speaker 00:
And this is exactly what the specifications flows as.

[00:18:43] Speaker 00:
In addition, this is at appendix 93, the 526 patent, where it's discussing the intermediating logic.

[00:18:53] Speaker 00:
This is expressly going through the yes avenue on the flowchart that Centripetal pointed to in its argument.

[00:19:00] Speaker 00:
This is not skipping.

[00:19:02] Speaker 00:
It also discloses the option to have the no path, where you don't inspect and you just pass on the packet.

[00:19:10] Speaker 00:
You just re-encrypt and send it on.

[00:19:11] Speaker 00:
But here, what we're saying is that allowing is an affirmative action.

[00:19:15] Speaker 00:
That's looking at the contents and determining to allow it.

[00:19:18] Speaker 00:
And that's what the board construed.

[00:19:20] Speaker 00:
This is an affirmative action.

[00:19:21] Speaker 02:
And with regard to their superfluidity argument on 1G, is it correct that you could allow the packet under 1F and then do something else with it rather than transmit the re-encrypted packet to its intended destination?

[00:19:39] Speaker 00:
So the superfluidity argument, as I understand it, would say that having 1f and 1g, if allowing satisfies 1f, then it makes 1g superfluous.

[00:19:51] Speaker 02:
Right.

[00:19:51] Speaker 00:
And that's incorrect, which the board analyzed and found, because allowing is the determination of what to do with the packet.

[00:19:59] Speaker 00:
It's the granting permission for the packet to go on.

[00:20:02] Speaker 00:
The re-encryption is then the step of taking that packet that was allowed and encrypting it again.

[00:20:07] Speaker 00:
And the transmission is sending it on.

[00:20:10] Speaker 00:
And so those are each independent steps.

[00:20:12] Speaker 00:
You don't get to the re-encryption or the transmission unless you have an allow.

[00:20:18] Speaker 00:
In that way, the patent is exactly like the prior art that have these same steps of selectively decrypting the packets and then analyzing the plain text content of the decrypted packets and determining whether to allow or block those packets.

[00:20:34] Speaker 00:
You have that in iPub's five-step process, where it's only, as the board explained, if allowed, that you proceed to the re-encryption and transmission.

[00:20:44] Speaker 00:
And you have that in Altman, where it explains that after you have the decryption, and this is the maintaining step being performed by the SIA, and then while you're maintaining that connection,

[00:20:57] Speaker 00:
the NMC is going to inspect the contents of the packet and it can make determinations, it can perform a consequent action expressly discloses that one of the examples it gives is you can block that packet and that determination of whether or not to block

[00:21:14] Speaker 00:
is also a disclosure, as counsel pointed out, of whether or not to allow.

[00:21:18] Speaker 00:
Again, that's an affirmative step.

[00:21:20] Speaker 00:
Now, Altman also discloses generally performing a consequent action.

[00:21:23] Speaker 00:
It's not limited to allow.

[00:21:24] Speaker 00:
But the fact that it has that block or allow logic during the maintaining step shows that that step is being performed prior to the re-encryption and transmission.

[00:21:36] Speaker 00:
Because you can't re-encrypt and transmit the packet

[00:21:40] Speaker 00:
and block it if you're doing the re-encryption and transmission before the NMC analyzes the contents of the packet.

[00:21:47] Speaker 00:
And that's where Dr. Goodrich's testimony came in through the Altman reference.

[00:21:52] Speaker 00:
At the institution decision, the board found the prior art at least suggested the claim limitation.

[00:21:58] Speaker 00:
And then throughout the development of the record, Dr. Goodrich, patent owner's expert, testified explaining that the disclosure of Altman, he contends that it's only operating on copies of the packets, and they're still being sent on while the NMC is inspecting them.

[00:22:15] Speaker 00:
But Altman expressed it discloses an action of blocking the packets.

[00:22:19] Speaker 00:
That's the cybersecurity purpose.

[00:22:21] Speaker 00:
He explained that, well, if it was transmitting the packets even as the maintaining stuff was going on, then you wouldn't be able to block them at the NMC step.

[00:22:32] Speaker 00:
On the totality of the record, the board then found that Altman does, in fact, anticipate because it discloses blocking the packets, which shows that the comparison

[00:22:44] Speaker 00:
And performing the consequent action by the NMC is happening prior to the re-encryption and transmission.

[00:22:51] Speaker 00:
So again, that addresses both the differentiation between these different steps in the claim, but it also rebuts the process argument that Pat and others were making saying that Altman is operating only out of band or on copies of packets and not taking those actions prior to re-encryption and transmission.

[00:23:12] Speaker 00:
Since it expressly discloses that the consequent action can be blocking, that shows the temporal arrangement between the different claim elements and that it clearly is performing it prior to the re-encryption and allowance.

[00:23:29] Speaker 00:
I also want to briefly address counsel's reference to the board's holding that IPUG discloses merely allowing the packets.

[00:23:39] Speaker 00:
And the board did use the language that IPUG does, in fact, disclose merely allowing.

[00:23:43] Speaker 00:
But that was in the context of analyzing the reference after construing the claims and explaining that allowing is an action that's sufficient to meet the corresponding action, because the claims don't limit it, and that's consistent with the specification.

[00:23:59] Speaker 00:
The board also, well, the board didn't say that Altman, sorry, IPUG only discloses merely allowing.

[00:24:05] Speaker 00:
It was finding that it was sufficient to disclose what's required by the claims.

[00:24:10] Speaker 00:
But its factual explanation of IPUG goes into the steps, again, the five-step process it takes to inspect the packets and to determine whether or not to allow them.

[00:24:21] Speaker 00:
And it's only if they're allowed that they get to those later steps.

[00:24:25] Speaker 00:
And so again,

[00:24:27] Speaker 00:
IPUG is performing the exact same process as is disclosed in the 526 patent and is claimed.

[00:24:39] Speaker 00:
I do want to briefly address the one processor, two processor argument.

[00:24:44] Speaker 00:
There's two arguments here.

[00:24:46] Speaker 00:
One is the claim construction argument from the board, and there's also the factual basis where here the board did find as a secondary basis that Altman discloses the claims in any event.

[00:24:56] Speaker 02:
Can I ask you about the first part of that?

[00:24:59] Speaker 02:
Your friend didn't have a chance to do it, and so if he disagrees, maybe he can spend five seconds saying why he disagrees.

[00:25:06] Speaker 02:
Is it your understanding that on the claim construction, the same claim construction would necessarily apply to one and claim 11?

[00:25:15] Speaker 02:
Or could it be that you say, yes, one is one only, but claim 11 allows for more?

[00:25:24] Speaker 02:
Could you have a disparate

[00:25:26] Speaker 00:
I think on the facts here, no.

[00:25:29] Speaker 00:
Under both claims, it's one or more for the processor or the computing device.

[00:25:36] Speaker 00:
As a hypothetical, you could have it for different claims.

[00:25:38] Speaker 00:
But here, the question is, construing the claims in light of the specification, the general rule from this court,

[00:25:44] Speaker 00:
is that a means one or more, and a v will refer back to the antecedent a. The exception to that rule is when there's a clear evidence in the specification that someone intended the a to mean one, or the the to refer back to a single one.

[00:26:00] Speaker 00:
Here, we have the opposite.

[00:26:02] Speaker 00:
We have expressed language in the specification.

[00:26:03] Speaker 02:
Well, I think that's kind of another exception based on this antecedent basis thing.

[00:26:07] Speaker 02:
We had cases that allow for construing it as one because of the antecedent basis.

[00:26:13] Speaker 00:
Yes, so the decode decision is one that Sonshipital points to, where this court did look at the antecedent basis.

[00:26:21] Speaker 00:
And they said that reading that claim in light of the specification, there it was referring back to a single, I believe it was a processor.

[00:26:29] Speaker 00:
And the specific limitations there were referring to the display, the user interface on the device.

[00:26:35] Speaker 00:
And so with the total context, it was clear that it was a single device.

[00:26:39] Speaker 00:
The same decision explained that the general rule still is that A means one or more.

[00:26:45] Speaker 00:
And the other claims that were analyzed there, the court found that A did not mean only a single device.

[00:26:55] Speaker 00:
And so it was only in the specific circumstance where the record supported construing it narrowly that the court reached that conclusion.

[00:27:03] Speaker 00:
That also was a specific factual issue where the A was in the preamble.

[00:27:06] Speaker 00:
And it was saying the antecedent back to the preamble impacted it.

[00:27:09] Speaker 00:
But here, I think it's more of the general issue that while the claims say a processor-ray computing device, and then they do refer back to that and later claim elements, there's nothing in the claim that says it's only a single one.

[00:27:21] Speaker 00:
And what the specification expressly discloses is that these are all exemplary embodiments, and they can be distributed over a network, and they can be done in different ways.

[00:27:28] Speaker 00:
And so reading those claims in light of the specification shows that it should not be neither claim 1 or 11.

[00:27:35] Speaker 00:
It should be narrowly construed to a single computing device here.

[00:27:38] Speaker 00:
But in any event, here the board also did find that Altman discloses a single processor implementation.

[00:27:45] Speaker 00:
This is an issue where after Institution Centripetal argued that Altman has the SIA and NMC as different computers and therefore

[00:27:54] Speaker 00:
It doesn't meet the claim element.

[00:27:56] Speaker 00:
We explain that Altman expressly discloses that these can be implemented in either a processor or processors, which shows that it can be implemented in a single processor.

[00:28:05] Speaker 00:
The board found, as a factual matter, that that disclosure of Altman shows that the implementation of both the SAA and NMC functionality can be in a single computer.

[00:28:15] Speaker 00:
So even if Centriple's construction were adopted, it would still anticipate and render obvious.

[00:28:25] Speaker 00:
To just very briefly address IPUG qualifying as prior art.

[00:28:30] Speaker 04:
Very briefly.

[00:28:32] Speaker 00:
Very briefly.

[00:28:33] Speaker 00:
I would just say that both Dr. Prakash's testimony and the archived web page itself provide substantial evidence to support the board's findings that should also be affirmed.

[00:28:42] Speaker 00:
And with that, I believe I'm out of time.

[00:28:43] Speaker 00:
I'll support his additional questions.

[00:28:45] Speaker 04:
Thank you, counsel.

[00:28:46] Speaker 00:
Thank you.

[00:28:49] Speaker 04:
Mr. Roman has some reportals.

[00:28:51] Speaker 04:
Take two minutes if you need it.

[00:28:53] Speaker 01:
I will, Your Honor.

[00:28:55] Speaker 01:
On Judge Pro's question about the computing device, which I didn't focus on, the board only spoke about the computing device.

[00:29:02] Speaker 01:
And I think it treated the computing device and processor the same.

[00:29:05] Speaker 01:
But the only thing it discussed is we do not limit the computing.

[00:29:08] Speaker 02:
It do have been suggested.

[00:29:09] Speaker 02:
anywhere on the record that they would be treated differently?

[00:29:11] Speaker 01:
I don't think so, Your Honor.

[00:29:12] Speaker 01:
And our main argument of the merits there is the board just didn't even address its antecedent based interest rule.

[00:29:17] Speaker 01:
It addressed a means plus function claim that was not there.

[00:29:19] Speaker 01:
I think that's wholly irrational.

[00:29:21] Speaker 01:
And then its ultimate holding was that this would have been obvious in light of a combination that was not asserted or discussed.

[00:29:26] Speaker 01:
So I think the whole computing issue is just unreasoned from start to finish and should be overturned for that basis.

[00:29:34] Speaker 01:
I'm picking up where he last left off before then.

[00:29:36] Speaker 01:
His final argument was his first, which is about what IPUG discloses and the factual findings.

[00:29:41] Speaker 01:
That is the argument that was not the basis of the decision below that they make for the first time on appeal.

[00:29:47] Speaker 01:
The board very clearly said that IPUG quote merely allows

[00:29:51] Speaker 01:
And it described the claim construction issue as whether quote merely allowing is a corresponding action.

[00:29:56] Speaker 01:
There is no dispute that the only factual findings made were that merely allowing is what iPod teaches and then the legal conclusion that merely allowing satisfies the claim limitation.

[00:30:07] Speaker 01:
All these other things about the access policies and the decisions are arguments that were not made below and that were not addressed by the board.

[00:30:14] Speaker 01:
And I think that gets to Judge Burroughs' question, which I just want to reiterate, in terms of the decision and about something having to happen for it to allow.

[00:30:22] Speaker 01:
They didn't argue and the board did not find that the decision was the action.

[00:30:26] Speaker 01:
The decision happens at a different stage of our claim limitation, which is the matching step.

[00:30:30] Speaker 01:
That's the corresponding.

[00:30:32] Speaker 01:
The board held that allowing alone is the corresponding action here.

[00:30:38] Speaker 01:
And that's clear, because blocking, too, is the result of a decision.

[00:30:41] Speaker 01:
But the board said blocking is the action, not the decision to block.

[00:30:44] Speaker 01:
Your Honor, Judge Prost raised the question that the board relied on blocking.

[00:30:48] Speaker 01:
That was its sole affirmative argument, that because blocking is an action and then because allowing is the opposite of blocking, allowing must also be an action.

[00:30:56] Speaker 01:
With respect, I think that's a logical fallacy.

[00:30:59] Speaker 01:
Just because x satisfies the claim limitation does not mean that not x satisfies the claim limitation.

[00:31:05] Speaker 01:
That's what the board held.

[00:31:07] Speaker 01:
The board held that the opposite of an action satisfies the claim limitation requiring a corresponding action.

[00:31:13] Speaker 01:
That was its only affirmative argument in support of this claim construction argument.

[00:31:19] Speaker 04:
Counsel, counsel, I was using the slide.

[00:31:21] Speaker 03:
Can I get one more question?

[00:31:22] Speaker 01:
Certainly.

[00:31:23] Speaker 03:
Can you just briefly, because he's flagged the clock for me, I pug as prior.

[00:31:28] Speaker 01:
We think IPUG is closer to the Acceleration Bay reference.

[00:31:35] Speaker 01:
The board did not find that it was searchable or indexed in any way.

[00:31:38] Speaker 01:
I understand that's not the sole factor that this Court has looked to, but it is a factor that the Court has looked to.

[00:31:45] Speaker 01:
And in both Acceleration Bay and Blue Calypso, this Court noted

[00:31:50] Speaker 01:
that the lack of indexing and a meaningful search function rendered a prior art that is posted on their website not publicly accessible for purposes of this requirement.

[00:32:00] Speaker 01:
There's no dispute that this was not indexed and not searchable.

[00:32:03] Speaker 01:
And so our submission is that, like an acceleration bay, you would have to, quote, skim through the website to find the document, which really means you need to already know that it's there.

[00:32:12] Speaker 01:
It's like searching for a needle in the haystack, similar to acceleration bay in Blue Calypso.

[00:32:16] Speaker 01:
So we would submit that it's not prior art in the first place for that reason, Your Honor.

[00:32:23] Speaker 04:
Thank you, Counsel.