[00:00:00] Speaker 03: Let's go to our first case. [00:00:03] Speaker 03: This is RN New Haasian Trust Limited versus Apple Inc. [00:00:09] Speaker 03: Case 24-1806. [00:00:13] Speaker 03: Mr. North, are you ready? [00:00:16] Speaker 02: Yes, sir. [00:00:16] Speaker 03: And you reserve three minutes of your time for rebuttal. [00:00:18] Speaker 03: Is that correct? [00:00:19] Speaker 03: Three minutes, sir. [00:00:21] Speaker 03: Before we start, there's confidential information cited in your brief. [00:00:27] Speaker 03: In both parties? [00:00:28] Speaker 03: In both parties. [00:00:30] Speaker 03: So I don't think that it's limited in nature, and we may not be addressing it, but if you see us headed off into that particular area, raise and wave your hand or something so we can take the appropriate action. [00:00:43] Speaker 03: Otherwise, if you don't need to refer to it, then I suggest that you do not. [00:00:47] Speaker 02: I will do my best not to, Your Honor. [00:00:49] Speaker 02: And then I'll ask counsel, because it's Apple, appellee's information that is confidential. [00:00:55] Speaker 02: So I'll try to pause. [00:00:56] Speaker 02: And then if appellee's counsel has an issue, I'll know that you'll let me know. [00:01:00] Speaker 02: So thank you for that. [00:01:01] Speaker 03: OK. [00:01:02] Speaker 03: You may proceed. [00:01:03] Speaker 02: Good morning, Your Honors. [00:01:06] Speaker 02: My name is John North, and I'm pleased to represent the Appellant R.N. [00:01:10] Speaker 02: Nehushtan Trust here today. [00:01:12] Speaker 02: R.N. [00:01:14] Speaker 02: Nehushtan Trust is a family trust that involves the inventor of the patents at issue, Rafi Nehushtan. [00:01:22] Speaker 02: We respectfully request that this honorable court reverse the judgment of the district court and remand for further proceedings. [00:01:30] Speaker 02: That judgment was based on the grant of summary judgment based on three issues presented by appellee to the district court. [00:01:38] Speaker 04: Council, in its summary judgment order, the district court concluded, and I'm quoting, RNN trust cannot point to any other language in the asserted claim that suggests something other than, I'll paraphrase, the device-unique security setting triggers the access [00:02:00] Speaker 04: restrictor and allows a device to enter data mode. [00:02:04] Speaker 04: So can you point me to any other language in the asserted claims that suggests something other than the device unique security setting allows a device to enter data mode? [00:02:17] Speaker 02: Yes. [00:02:19] Speaker 02: That language for this first issue needs to be read in the context of the phrase as a whole, which begins with, also comprises, that is the cellular device, also comprises an access restrictor restricting the use of the data mode in accordance with the device unique security setting, which we call the deuce. [00:02:46] Speaker 02: Appellee and the district court thought that that phrase meant that the device-unique security setting alone or by itself must be the one that grants access to it or triggers it, as I think the district court said in part. [00:03:03] Speaker 04: Well, you take issue in the appeal. [00:03:07] Speaker 04: You take issue with the district court's construction of device-unique security setting. [00:03:14] Speaker 04: also provided by a cellular provider. [00:03:18] Speaker 04: But ultimately, you agreed to those constructions before the district court. [00:03:22] Speaker 04: If you had that issue with those constructions, why didn't you appeal them? [00:03:27] Speaker 02: Because we believe that the constructions were appropriate. [00:03:32] Speaker 02: And our expert, Dr. Cole, who the court credited and whose credentials were not challenged, he has a PhD, including in cybersecurity, gave his opinions based on a plain reading of what those constructions meant. [00:03:46] Speaker 02: He ultimately agreed with a lot the other side had to say. [00:03:50] Speaker 02: in certain aspects he did and I can explain why that doesn't make a difference here today but we agreed because at the time and we still do and Dr. Cole believed that there is [00:04:00] Speaker 02: infringement or at least a genuine issue of material fact based on the plain constructions and that instead as per this court's decision in Duncan there was a reinterpretation or a narrowing during the summary judgment process and it was that narrowing not the initial constructions that were concerned about and that were raising on this appeal. [00:04:24] Speaker 02: So we are not challenging [00:04:25] Speaker 02: the initial constructions we think we accepted them which is a phrase in district courts when there are tentative decisions which is saying and we don't need to quibble between agreeing and accepting but we thought that they were fair and that we had a good infringement argument under the plain ordinary reading of those constructions. [00:04:45] Speaker 01: So you agree that the device unique security system is a setting that grants access to the [00:04:53] Speaker 01: data mode, because that's the construction. [00:04:56] Speaker 02: We agree with that construction, but we don't agree with the narrowing of it. [00:05:01] Speaker 01: The district court found that the portions of the Apple whatever that you pointed to don't access, don't grant access to a data mode. [00:05:15] Speaker 01: And that's true. [00:05:17] Speaker 01: Right? [00:05:17] Speaker 01: There's two things. [00:05:19] Speaker 01: I don't know if they're confidential or not, so I'm not going to talk about them. [00:05:21] Speaker 01: We know what we're talking about. [00:05:22] Speaker 01: There's two things. [00:05:23] Speaker 01: And it's undisputed that those two things do not grant access to a data mode in the Apple devices. [00:05:30] Speaker 02: Is it not? [00:05:31] Speaker 02: They do not alone grant access, Your Honor. [00:05:34] Speaker 02: And that's the debate. [00:05:35] Speaker 02: So they're not a DOS. [00:05:37] Speaker 02: Well, they do grant access because without them... The theory of the case was these two. [00:05:42] Speaker 01: It wasn't these 11 [00:05:45] Speaker 01: are the dust, and therefore that infringes our patent. [00:05:49] Speaker 01: Your theory of the case, and it might have been different if your theory of the case had been different, but [00:05:53] Speaker 01: Those two things don't grant access, right? [00:05:56] Speaker 01: And a dust has to grant access. [00:05:58] Speaker 01: So by definition, they are not a dust. [00:06:00] Speaker 01: They may be part of a larger dust, but that's not what you pointed to in your theory of the case. [00:06:05] Speaker 01: So you're out on summary judgment. [00:06:07] Speaker 01: What's wrong with that? [00:06:08] Speaker 02: Because we argued in our theory was that they were necessary, but not sufficient alone. [00:06:14] Speaker 02: And they are necessary. [00:06:15] Speaker 02: That doesn't meet the claim construction. [00:06:16] Speaker 01: Because at the granting access you agree to this claim construction you have multiple problems with your case one is you agreed to a claim construction that says the dust itself grants access and Then you pointed to two items and said these are the dust Well, those two items can't be the dust and Apple because they don't buy themselves grant access There may be a dozen Apple, but it's more than just these two and [00:06:43] Speaker 02: We believe, Your Honor, that a person of skill reading the patent would understand that it is not granting access. [00:06:52] Speaker 02: It is something that is necessary, like an access card to get into a building, but you still need to show security and ID. [00:07:00] Speaker 02: And that if you look to column seven of the patent, and that's the 002, which I reference, that's one of the two patents, there's an express [00:07:08] Speaker 02: disclosure of three additional potential steps that would be necessary in order to act. [00:07:15] Speaker 01: Are those three potential steps part of the dust? [00:07:18] Speaker 02: It's a comprising claim. [00:07:22] Speaker 02: It says also comprises. [00:07:24] Speaker 01: I'm sorry. [00:07:25] Speaker 01: You're stuck with your claim construction. [00:07:27] Speaker 01: Most of what you seem to argue in your blue brief and what you're arguing now goes beyond what the claim construction was agreed to. [00:07:33] Speaker 01: And if the dust itself, whatever you identify as the dust, has to grant access without reference to anything else, and that's how I read the claim construction, then unless what you've identified grants access, then you're out. [00:07:47] Speaker 01: All this other stuff about, well, you might need to do these steps, too. [00:07:51] Speaker 01: That's not what your claim construction is. [00:07:54] Speaker 02: Respectfully, Your Honor, if the words alone or by itself were inserted in the claim. [00:07:59] Speaker 01: It doesn't need to be alone. [00:08:00] Speaker 01: It's a setting that includes, and it has some language about one secure item or whatever. [00:08:06] Speaker 01: It's a setting that grants access. [00:08:09] Speaker 01: It's not something that says a setting in combination with other things grants access. [00:08:15] Speaker 01: It's a setting that grants access. [00:08:17] Speaker 02: And we believe when that is read properly in context with the lead-in that you have an access restrictor which restricts access or not to the data mode. [00:08:27] Speaker 01: The two items that you identified in the Apple devices grant access. [00:08:34] Speaker 02: They do not alone grant access. [00:08:41] Speaker 02: And that comes to the nub of what we had. [00:08:43] Speaker 02: And I think in the Duncan opinion, there was a claim construction. [00:08:47] Speaker 01: Does this issue, if we disagree with you, resolve this case? [00:08:51] Speaker 01: Do we have to reach the other issues? [00:08:53] Speaker 02: It goes across all of the claims. [00:08:55] Speaker 02: So the answer is yes, if you disagree with us on it. [00:08:58] Speaker 02: There's no need to reach the other issues on that. [00:09:04] Speaker 02: I think, though, the Duncan case is instructive. [00:09:07] Speaker 02: And we cited it in the blue brief. [00:09:10] Speaker 02: the same situation where summary judgment was granted based on the construction. [00:09:15] Speaker 02: And then this court came back and said that there was an improper insertion at summary judgment of the word entirely into the construction. [00:09:24] Speaker 02: And this court reversed and remanded on that basis. [00:09:27] Speaker 02: And we believe that the same situation applies here, that in effect, to get where the district court and where the appellee goes, you have to read that claim construction to say the deuce alone does it. [00:09:40] Speaker 02: And in the context of the access restrictor and also the disclosure in column seven of additional [00:09:47] Speaker 02: protections and also referring to hashing and encryption, that this is just an enhancement of the security that was available at the time. [00:09:58] Speaker 02: And the background shows that [00:09:59] Speaker 02: This enhancement was because the passwords at the time were generated by the manufacturer and were across a whole range of devices. [00:10:07] Speaker 02: And so if you hacked one, you got them all for that class. [00:10:10] Speaker 02: And so this improvement was to say, well, we're going to have something so that this password is unique to the device. [00:10:19] Speaker 02: And so even if you hack it, then you're not going to get into all the other devices out there. [00:10:28] Speaker 02: The deuce is necessary, and so it performs that function. [00:10:34] Speaker 02: The deuce, in fact, provides that enhancement that was part of the invention. [00:10:39] Speaker 02: And the invention never claimed that it was the only thing that would grant access. [00:10:45] Speaker 02: And there's nowhere in the specification where it's said to be the sole thing that grants access. [00:10:52] Speaker 02: And a Pellee cannot point to that. [00:10:54] Speaker 02: So respectfully, sir, [00:10:56] Speaker 02: We believe a reasonable reading of the specification, as we know we must do by Phillips, is that one would understand and one would accept that construction because it does grant access under a plain and ordinary interpretation of that. [00:11:18] Speaker 02: Let me just see if I have anything else on that point if I might. [00:11:27] Speaker 03: Pretty close to your rebuttal time if you want to reserve the remainder of your time you can I'll do that. [00:11:37] Speaker 02: Thank you. [00:11:37] Speaker 02: Okay. [00:11:38] Speaker 03: Thank you sir Councillor Amati [00:11:50] Speaker 00: May it please the court? [00:11:52] Speaker 00: My name is Brittany Amati, and I represent Apple. [00:11:55] Speaker 00: There's no dispute over how the accused Apple devices operate in this case. [00:12:00] Speaker 00: The only question before this court is whether the claims as construed in the undisputed claim constructions applied to Apple's products find no infringement here. [00:12:11] Speaker 00: There are two separate paths to affirmance by this court. [00:12:15] Speaker 00: First, if the court determines that the district court correctly found [00:12:19] Speaker 00: that Apple's products do not have a device-unique security setting that grants access to the data mode, then this court can affirm on all asserted claims on that basis. [00:12:29] Speaker 00: And second, if this court concludes that the data mode in Apple's products is not in an active connection and the operating system updates are not provided by a cellular provider, this court can also affirm on that basis as well. [00:12:43] Speaker 01: Do we need to determine that there's no DUS and Apple's devices at all, or just that the two things they identified as the DUS don't grant access? [00:12:53] Speaker 00: Just the latter, Your Honor, just that the two properties that they identified do not grant access. [00:12:58] Speaker 01: There's something in Apple's devices, it may not be called a DUS or something like that, that grant access to a data mode, because you have to update the same way everybody, not the same way, but you have to update something. [00:13:11] Speaker 01: But their theory of the case was these two specific things, and the district court found under the claim construction that those aren't a DUS. [00:13:21] Speaker 00: That's correct, Your Honor. [00:13:22] Speaker 01: There's no issue of fact that those two things don't grant access. [00:13:25] Speaker 01: That's all we need to decide, right? [00:13:27] Speaker 00: That's exactly right, Your Honor. [00:13:28] Speaker 00: Those two properties are the only things at issue before this court. [00:13:32] Speaker 00: And those two properties, as undisputed, do not grant access to the operating system update in the accused Apple products here. [00:13:40] Speaker 00: And that is sufficient for this court to affirm on all asserted claims. [00:13:44] Speaker 04: I presume that your second argument, the cellular argument, [00:13:51] Speaker 04: is strongly related to your assertion, and I don't think this is confidential, that the phone actually turns itself off at a point. [00:14:05] Speaker 00: That's correct, Your Honor. [00:14:06] Speaker 00: On the active connection issue, there's no dispute that the operating system update is loaded when the device is completely disconnected from the network. [00:14:15] Speaker 00: the exact opposite of what the claims describe, as well as what's described as the alleged invention and the specification. [00:14:22] Speaker 04: You agree we don't have to get there, though? [00:14:24] Speaker 00: That's correct, Your Honor. [00:14:25] Speaker 00: If this court affirms on the first ground, there's no need to reach the second ground. [00:14:30] Speaker 00: I'd just like to address a couple of points with respect to the first ground. [00:14:35] Speaker 00: The claim construction was undisputed here. [00:14:38] Speaker 00: It's actually the portion of the construction that they're taking issue with now, the grants access, [00:14:42] Speaker 00: was proposed by RNN Trust before the district court. [00:14:46] Speaker 00: And having proposed that construction, they cannot now come on appeal and challenge that construction before this court, as I believe my friend has acknowledged on the other side. [00:14:56] Speaker 01: With respect to- This argument seems to be that the claim of construction that the dust doesn't have to be the only thing that grants access. [00:15:03] Speaker 01: It just has to be one of the things that grants access. [00:15:06] Speaker 01: If that was the case, then would it make difference to the summary judgment ruling here? [00:15:13] Speaker 00: Here, the two properties that they identified do not grant access, period. [00:15:20] Speaker 00: There's no dispute that there are a number of different properties without getting into the confidential details that have to be verified. [00:15:27] Speaker 00: But then even on top of that, there are additional steps that have to take place before the operating system update can be loaded. [00:15:34] Speaker 00: And so there's no dispute that those two properties do not grant access to the data mode. [00:15:41] Speaker 01: So the problem with their case is what I suggested. [00:15:45] Speaker 01: It's twofold. [00:15:47] Speaker 01: One, they agreed to a claim construction that only seems to require the dust itself to grant access. [00:15:54] Speaker 01: And two is, their theory of the case about what in Apple's products is a dust is just wrong. [00:16:01] Speaker 00: That's correct, Your Honor. [00:16:02] Speaker 00: Yes. [00:16:03] Speaker 00: And both of those bases are sufficient to affirm here. [00:16:07] Speaker 00: If I could touch briefly on their other arguments with respect to the active connection. [00:16:14] Speaker 00: As I mentioned, again, the facts are undisputed here that Apple's accused devices are disconnected by design, the exact opposite of what the patent teaches. [00:16:24] Speaker 00: And that's another basis on which to affirm as to all asserted claims except for claim 5, 28, and 29 of the 002 patent. [00:16:33] Speaker 00: And separately, as to the last issue that is raised in the opening brief, provided by a cellular provider, there's no dispute here that the operating system updates are supplied and provided by Apple and not by a cellular provider. [00:16:47] Speaker 00: Again, the exact opposite of what is described and claimed in the asserted patents. [00:16:53] Speaker 00: And that is a construction that RNN Trust consented to before the district court during district court proceedings. [00:17:00] Speaker 00: And so for all of those reasons, we would ask that the court affirm as to all asserted claims the grant of summary judgment of non-infringement. [00:17:09] Speaker 03: Thank you. [00:17:10] Speaker 00: Thank you, Your Honor. [00:17:12] Speaker 03: Mr. North, you have about four minutes of time. [00:17:14] Speaker 03: OK, thank you, Your Honor. [00:17:20] Speaker 02: In response to Justice Hughes's, I read in the papers. [00:17:26] Speaker 01: I'm sorry. [00:17:26] Speaker 01: Actually, don't thanks. [00:17:29] Speaker ?: OK. [00:17:29] Speaker 02: But I believe the evidence shows that we identified as the deuce, what's called an ECID, an exclusive chip ID in the knots, which changes it over and over again, which keeps from a repeat. [00:17:45] Speaker 02: And I think that was public and that was in our complaint. [00:17:49] Speaker 02: And I think [00:17:49] Speaker 02: there are different names to it, but if you agreed that all that's necessary is for the deuce to have to be necessary for the process, then we have identified that, and that's what the confidential evidence shows on that. [00:18:05] Speaker 02: So I don't know if that was clear, but I just wanted to make, and it may not make a difference for [00:18:09] Speaker 02: the panel but that is the evidence they do have these functions and they are a necessary part of what goes on and in fact in their public documents they are highlighted as part of their security scheme and that's listed in the complaint so this isn't a minor one of the number of factors is under the protective order and so I won't mention how many but it's a very primary important thing and then on the second point [00:18:36] Speaker 02: the relating to the active connection in the data mode. [00:18:40] Speaker 02: It's in the papers, and I won't prolong this. [00:18:42] Speaker 02: But if the court looks at it, that the data mode, the construction, that is agreed to doesn't include any active connection requirement at all. [00:18:54] Speaker 02: That there are claims before this court that don't even mention even an operating system. [00:19:03] Speaker 02: And they try to limit it to the operating system [00:19:06] Speaker 02: the small segment in time and say it's turned off, and therefore there's no infringement. [00:19:11] Speaker 02: But as you would read in Dr. Cole's report, the data mode is a broader thing, and we have actual proof of infringement during that period. [00:19:20] Speaker 02: Finally, as to the third term, just briefly, we believe that the claims, barely read, say, that the cellular provider needs to supply, just like in a supply chain, that doesn't mean you created it. [00:19:34] Speaker 02: And here we have evidence that the cellular provider does in fact supply the OS update. [00:19:42] Speaker 03: Did you make that argument below? [00:19:45] Speaker 02: Yes. [00:19:48] Speaker 02: We pointed to the figures two through four to support that notion that they're not looking at who created it, and that was the insertion. [00:19:57] Speaker 02: Thank you, Your Honors. [00:19:57] Speaker 02: I appreciate your time today. [00:19:59] Speaker 03: Thank you. [00:20:00] Speaker 03: We thank all the parties for the arguments. [00:20:02] Speaker 03: This case was now taken into submission.