trialst@uspto.gov
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`571-272-7822
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`IPR2016-00331, Paper No. 28
`IPR2016-00332, Paper No. 28
`May 9, 2017
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
`vs.
`VIRNETX INC.,
`Patent Owner.
`- - - - - - - -
`Case IPR2016-00331
`Case IPR2016-00332
`Patent 8,504,696 B2
`Oral Hearing Held: Monday, March 27, 2017
`
`
`Before: MICHAEL P. TIERNEY, KARL D. EASTHOM, and
`STEPHEN C. SIU, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday,
`March 27, 2017, at 10:00 a.m., in Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`571-272-7822
`
`IPR2016-00331, Paper No. 28
`IPR2016-00332, Paper No. 28
`May 9, 2017
`
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - - - -
`APPLE INC.,
`Petitioner,
`vs.
`VIRNETX INC.,
`Patent Owner.
`- - - - - - - -
`Case IPR2016-00331
`Case IPR2016-00332
`Patent 8,504,696 B2
`Oral Hearing Held: Monday, March 27, 2017
`
`
`Before: MICHAEL P. TIERNEY, KARL D. EASTHOM, and
`STEPHEN C. SIU, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday,
`March 27, 2017, at 10:00 a.m., in Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`A P P E A R A N C E S O F C O U N S E L:
`ON BEHALF OF PETITIONER:
`
`SIDLEY AUSTIN LLP
`BY: JEFFREY P. KUSHAN, ESQUIRE
` SCOTT BORDER, ESQUIRE
` SAMUEL A. DILLON, ESQUIRE
`1501 K Street, N.W.
`Washington, D.C. 20005
`(202) 736-8914
`jkushan@sidley.com
`
`ON BEHALF OF PATENT OWNER:
`
`PAUL HASTINGS LLP
`BY: DANIEL ZEILBERGER, ESQUIRE
` NAVEEN MODI, ESQUIRE
`875 15th Street, N.W.
`Washington, D.C. 20005
`(202-551-1990
`danielzeilberger@paulhastings.com
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`P R O C E E D I N G S
`JUDGE EASTHOM: Welcome, everyone. The two
`cases are IPR2016-00331 and IPR2016- 00332. The patent
`being challenged by Apple Inc., the Petitioner, is 8,504,696
`B2, and the Patent Owner is VirnetX Inc. Counsel for
`Petitioner, can you please introduce yourselves for the record.
`MR. KUSHAN: Sure. Jeff Kushan, and with me is
`Sam Dillon and Scott Border, from Sidley Austin.
`JUDGE EASTHOM: Welcome. And for Patent
`
`Owner?
`
`MR. ZEILBERGER: Your Honor, Daniel
`Zeilberger and I'm joined by Naveen Modi.
`JUDGE EASTHOM: Welcome.
`Okay. We've set it up 45 minutes per side for both
`cases. Petitioner will proceed first. You want to reserve any
`rebuttal time?
`MR. KUSHAN: Yes, your Honor, we'd like to
`reserve 20 minutes.
`JUDGE EASTHOM: Okay. Are you going to
`argue both of them together, and then?
`MR. KUSHAN: Yes. Our attention is to address --
`there are two grounds. There's the Aventail reference and the
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`Beser reference. I'm going to cover Aventail and then my
`colleague, Mr. Border, will cover the Beser reference. We are
`hoping we could do that rather efficiently.
`JUDGE EASTHOM: Sequentially?
`MR. KUSHAN: Yes.
`JUDGE EASTHOM: Okay. I guess we will keep it
`all in one transcript then. And it sounds like a plan, then.
`Whenever you are ready, please proceed.
`MR. BORDER: Your Honor, may I approach?
`JUDGE EASTHOM: Yes.
`(Mr. Border proffers documents to the Panel.)
`JUDGE EASTHOM: Thank you.
`MR. KUSHAN: Good morning. I'm going to be
`addressing, as I mentioned, the Aventail reference. I'd also
`like to also touch on a couple of other issues that relate to
`earlier proceedings -- that have occurred in earlier draft
`proceedings that have now become final decisions.
`Let me go ahead and start by going to Slide 2. As
`you are aware, these are the grounds that are at issue in the
`two proceedings, the 331 and 332 proceeding. The 332
`proceeding relates to the Aventail; 331 is based on Beser.
`If you go to Slide 4, please. This is the Claim 1
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`from the '696 Patent. And as you can see, it has three
`elements or three steps that are performed in the Claim: The
`intercepting step, the determining step, and the initiation of
`the VPN communication link. We have seen these claims
`before. They are very similar to a number of other patents in
`this family, and particularly the focus has been on the
`determining step, the interception step, and the establishment
`step. In this case, the dispute seems to focus on the
`determining step and the initiation step. I don't know that
`there is much in the dispute at this point over interception
`over either Aventail or Beser.
`What I'd like to do -- go to Slide 5. This is just a
`quick summary of the proceedings that are now final. A
`number of the IPR proceedings of other family members of
`this patent family have gone up to the Federal Circuit and the
`Federal Circuit has issued decisions and a mandate has been
`issued in four of those proceedings to date. I will note that
`the first one there is a period where I don't know -- I don't
`think that the period for seeking cert to the Supreme Court has
`expired, but for the other three, they have. So we look at
`those decisions as being final. There is no further proceedings
`available in any of those. And that has some implications for
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`these cases, particularly on issues that are common to the
`proceedings in those cases and in this one.
`JUDGE EASTHOM: The 237 is the case with
`Beser; is that right.
`MR. KUSHAN: Yes, and also the '181 -- the '181
`was an appeal out of an inter partes reexamination proceeding
`and that also had Beser at issue in your decision.
`And I will note that in the Federal Circuit
`decisions, they've -- I think similar to the Board -- have been
`efficient and kind of picked up one issue that they found to be
`dispositive of the appeal. For example in the 237, they
`focused on the Wesinger reference. They didn't have an
`explicit discussion in the Federal Circuit decision on Beser,
`and the grounds that were based on Beser in RFC 2401. There
`are some issues that are linked, such as Claim constructions.
`But you have a fairly clean record of affirmance of your
`judgments in each of these proceedings.
`JUDGE EASTHOM: But the Beser based around
`the 237 case, that has still time for cert? Is that what you
`said?
`
`MR. KUSHAN: Correct. I think the period for
`seeking cert expires in May in that proceeding.
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`JUDGE EASTHOM: Okay.
`MR. KUSHAN: And in the other three
`proceedings, those have been completed and the period is now
`over. So those are final.
`JUDGE EASTHOM: Okay.
`MR. KUSHAN: So if you would go to Slide 6. I'd
`like to just touch briefly on the Patent Owner estoppel rule of
`the Board, 42.73(d)(3). And we think in this setting, where
`you have a number of final decisions that have come back from
`the Federal Circuit addressing and resolving and affirming the
`judgments of the Board, that can make your job slightly easier,
`because some of the issues are common to the proceedings
`before you now. And I think it's important to kind of look at
`this.
`
`You gave VirnetX the opportunity to file sur-reply
`on this issue of whether -- what the effective estoppel was. I'd
`like to touch on that very briefly. They basically raised two
`issues. One was whether 42.73(d)(3) only applies to the
`circumstances that are set forth under Items 1 and 2, and only
`in the context of ongoing or future prosecution of an
`application or a reissue. That was one issue they raised.
`The second issue that they raised is that it only
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`applies -- this estoppel only applies for adverse judgments or
`requests for adverse judgment. I think the first issue has been
`resolved. There have been a couple of decisions. They cited
`one, but we think a more probative decision is IPR2015- 1178,
`Paper 22, where the Board applied an earlier IPR Final
`Decision that had been affirmed by the Federal Circuit to a
`subsequent IPR proceeding.
`And so for the first question of whether this
`estoppel is limited to, for example, request for adverse
`judgment or only applies in ongoing prosecution of patent
`applications, I think that answers that question.
`JUDGE EASTHOM: Well, that is common law
`collateral estoppel that you are referring to?
`THE WITNESS: Well, I look at this as -- there is
`an intersection of two authorities. There is a common law
`collateral estoppel and a Patent Office rule creating estoppel
`for a party that loses. In this setting, the Patent Owner
`estoppel, I think, is something designed to aim and make more
`efficient the subsequent proceedings in front of the Office.
`Certainly, subsequent proceedings before the examining group,
`but also it has to give benefit to the Board to avoid having to
`relitigate and re-adjudicate each issue that has been presented
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`to you in an earlier proceeding.
`JUDGE EASTHOM: I don't think there are any
`final judgments with respect to Beser or Aventail; is that
`correct?
`
`THE WITNESS: No. So this raises an interesting
`question, and I don't know that we have had a decision yet that
`answers this question. I know in ex parte prosecution, if you
`take an application and you have three grounds of rejection
`and you address one in your decision, then that rule holds that
`you have addressed all of them.
`In the setting of a Federal Circuit review of a
`judgment, you are looking at did the Federal Circuit affirm the
`judgment of the Board, and the judgment incorporates all of
`the reasons and findings of the Panel.
`I think the logical -- and aiming at the policy
`behind the rule on estoppel -- is not to relitigate issues. If you
`have an issue in dispute and you resolved it in the first
`proceeding, and that's part of your judgment and the Federal
`Circuit affirms your judgment, then you should be able to rely
`on that record to avoid having to relitigate that again and
`address it in another proceeding, especially if there is any
`consequence to the issue.
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`For example, the kind of issues that we have
`flagged are things like is RFC 2401 prior art? Does the Claim
`requirement for a VPN communication link require a direct
`communication? These are issues which you've addressed and
`were part of the judgment that was affirmed.
`In Beser, there were a number of specific findings
`about what Beser taught or didn't teach. And those, I think,
`are based on the text of Beser, which should be a finding that
`you can rely on in the subsequent case.
`So that's -- we look at this rule and, based on its
`text, I think it's fair to read that as serving the interest of the
`Board to avoid having to relitigate issues on specific issues
`that were engaged.
`I'd like to -- do you have any questions, or I can
`move on? Why don't we go to Slide 7 -- actually, we have
`Slide 8. Aventail is a reference which you previously
`considered in IPR2015- 871. You have a final written decision
`in that proceeding. That is not yet done on appeal. That's
`being briefed still at the Federal Circuit. But I think your
`findings in that early proceeding are particularly probative
`here, because they do speak to your understanding and your
`findings about what was in Aventail, what it teaches, how it
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`functions, and how it relates to elements that are common to
`this patent as well.
`As you can see, this is just an excerpt from
`Aventail. The devices at the bottom are mobile computers that
`are running Aventail Connect. They interact with devices that
`are servers that are behind a -- on a private network. They go
`through the Aventail VPN server. The VPN server interacts
`with the Aventail Connect to set up the VPN. Generally, when
`a user types a request for a site, the Aventail Connect on the
`client will evaluate that and then determine whether it needs to
`be sent over to the Aventail VPN server.
`There is an option to proxy all of those requests.
`There is also an option in the client to encrypt all
`communications. That's kind of the on/off switch concept in
`the Aventail Connect device.
`If you go to Slide 9, this is just another excerpt
`from Aventail which is describing the process where it
`investigates or assesses that DNS request. It looks at DNS in
`the request to look for the domain name in their pedigree
`assessment of whether that name that is in the request matches
`a name on the redirection list. That's the table maintained by
`the Aventail Connect or by the Aventail ExtraNet server. If
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`there is a match, it means that that is a destination that
`requires a VPN to be set up. And that, in our view, meets the
`requirements of the determining step in the Claims. That's is
`also something which you addressed previously.
`If you could go to Slide 15. In IPR2015- 871, you
`had looked at this question of whether there is a determination
`made in the Aventail scheme, again, in the same setting where
`you kind of turned on that encryption requirement for the
`communications. So it's encrypting all communications that
`are being proxied. When those requests are made, they go to
`the server and the server will evaluate whether or not there is
`a request for a secure destination or not. And if it is not a
`secure destination, then it's passed through the normal
`handling.
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`In the scheme -- in this decision you, I think, put
`to rest the argument that has been advanced by VirnetX in this
`proceeding that the Aventail scheme does not show a
`determining step. And what you have found by the earlier
`proceeding is that when you have all the connections
`encrypted and a request comes in that setting, you are
`determining whether the destination requires not only a secure
`site but also encryption, because all of the devices in that
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`configuration are going to require encryption.
`If I could go to the second issue that has really
`been engaged in this case is whether there is a VPN
`communication link that's been met by Aventail. And again,
`to reiterate, we had the grounds based on Aventail with
`RFC 2401 to get to end- to- end communication, if that were to
`be found to be a requirement. But the core of the point is
`based on Aventail's scheme of setting up the VPN, which
`includes encryption.
`Go to Slide 17. This is focusing on the last
`element of the Claim 1.
`JUDGE EASTHOM: Just real quickly before that,
`do you then consider the proxy and the redirection just to be
`parallel or similar? Or are there differences?
`MR. KUSHAN: So, the redirection occurs when
`there is a match between the name that you're seeking in your
`request and something that's on that redirection table, and
`either maintained by the client or by the server. And so if
`there is a match, that means that that's the device that's going
`to require secured communication. It's going to require a VPN
`to be set up.
`If it's not -- if it's not on that list, it falls through
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`for normal handling. And in that scenario, it could be a public
`web site that doesn't require that. But I think the proxying is
`somewhat of a side issue, because the proxy is just a
`mechanism by which that request gets to the server to be
`evaluated.
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`JUDGE EASTHOM: So the proxy isn't a separate
`sort of configuration then, you don't think?
`MR. KUSHAN: Well, there are two, I think,
`primary configuration questions in Aventail. One is: Do you
`want to encrypt all communications? And second is: Do you
`want to handle the evaluation of the request at the client or at
`the server? And you have -- one of the options is that you
`proxy all connections. Another is to proxy when there is a
`redirection request that matches the table that's maintained on
`the Aventail client.
`So in either scenario, when you set the device to
`require encryption, you are going to have the proxying occur
`only for devices that will have encrypted communications.
`That's just a feature of the interactions that have been set by
`the server and the policies that are set by the server.
`JUDGE EASTHOM: Is it your contention that
`Aventail discloses encryption? Or are you relying on
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`RFC 2401, if that is a requirement in the claim construction? I
`realize there is an issue there, too.
`MR. KUSHAN: Yes, your Honor. We look at
`VirnetX, by itself, gets you to the Aventail ExtraNet server.
`And then once you are past that, you are in a private network.
`So there isn't really an expressed teaching that you need to
`encrypt the communications in the private network after you
`have gotten past the ExtraNet server. We rely on RFC 2401 to
`show that that is a very common technique that was well
`known and a person would have used that to make the
`end-to- end communications encrypted.
`JUDGE EASTHOM: Okay.
`MR. KUSHAN: So if we could go to the second
`issue, which is this initiation of the VPN link. This is the
`Claim language. If you could go to Slide 18. And we pointed
`in our reply that you've already kind of addressed this question
`as well. You have addressed one component of it, was there a
`requirement for a direct communication; and second, is the
`type of communication set up by Aventail a VPN
`communication link?
`JUDGE EASTHOM: I think Patent Owner is
`arguing that that issue was not necessary to the decision; is
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`that correct?
`MR. KUSHAN: So, in the -- I think it was -- so
`the Federal Circuit has looked at this issue and they addressed
`it in the context of a claim construction issue, which they did
`speak to. I think it was a claim construction issue that bridges
`both the reference that they focused on in that decision in the
`Federal Circuit, as well as the ones that were the subject of
`your judgment.
`And, again, this goes to the question of what is the
`effect of the Federal Circuit affirmance in your judgment
`versus does it take up specifics grounds that you have termed.
`I think in this setting, and the fact that it was part of the claim
`construction, helps give weight to the conclusion that it is
`controlling in subsequent proceedings. The requirements
`for -- and if you could go to Slide 22 -- I'm sorry. Back up.
`Slide 21.
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`This is part of your final written decision in the
`871 proceeding where you did look at this specific question in
`the context of Aventail. So the Federal Circuit decision
`touched on the meaning of the claim construction, and you had
`a subsequent written decision that looked at the question of
`Aventail and whether it meets this requirement.
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`What you found here is that there is no requirement
`under your claim construction for a direct communications.
`But even if there were one, you found that Aventail, in
`conjunction RFC 2401, would set up and meet that requirement
`for the direct communications.
`The Aventail scheme does that, because in the
`Aventail scheme you can go to the direct specific computer
`that you want to speak to on the private network, which gives
`you at least the concept of a direct addressability in the
`scheme of Aventail.
`So in our view, the arguments that have been
`advanced in the briefing I think have been mostly recalling the
`road map of their previous challenges and I think you have
`addressed and responded to them. Hopefully, you will get to
`the same outcome here.
`JUDGE TIERNEY: Let's talk about the same
`outcome and estoppel. Patent Owner has argued that
`Defendants put in a responsive claim construction brief in the
`following seven litigations and -- Defendants, including
`Apple. And when we look at the disputed claim construction
`there, Defendant's proposed construction creates, "...a network
`of computers which privately and directly communicate with
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`each other by encrypting traffic."
`Why is it that there is estoppel before the Office
`because they were a part of the final decisions, but there is no
`similar estoppel that Defendant's taking the position that's
`recorded regarding this similar language in this passage?
`MR. KUSHAN: Well, I think -- so that's a good
`question. I think the first part of it is answered by what is the
`footing of the appeal that goes up and what is the effect of that
`footing?
`
`So if you come out of an IPR proceeding in which
`you dealt with the claims in the broadest reasonable
`interpretation and construction, and that is the finding -- that
`finding is affirmed by the Federal Circuit, then I think that
`would then dispose of future proceedings on that same claim
`term inside of the PTO, which uses the same claim
`construction standards.
`The arguments that are advanced in the District
`Court litigation draw on contribution, history, estoppel, and
`other context issues, which may not be considered or might not
`be a variable in your analysis for broadest reasonable
`construction. But that would be my first reaction. If brought
`in, the different claim construction standards would dictate a
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`different effect as to the arguments made by a party in a
`District Court proceeding relative to an IPR proceeding.
`I think substantively, it may not be an ultimately
`significant issue, because we think -- based on your analysis in
`this earlier IPR proceeding -- that it would even meet the
`"direct" requirement. That under the Aventail scheme, that
`would satisfy even the narrower construction as advanced and
`engaged in the District Court proceeding.
`JUDGE TIERNEY: So, I'm just trying to figure
`this out. If we had a Phillips construction today, would we
`arrive at Defendant's proposed construction and use the word
`"direct," or would we still have a similar decision to which we
`had in the 871 case?
`MR. KUSHAN: I think it would be the latter. I
`think in the context of an IPR proceeding, you look to the
`question of the broadest reasonable construction of the claims.
`And if there is a variable in the District Court proceeding
`affecting the narrower construction that isn't going to be given
`weight by you, then you can --
`JUDGE TIERNEY: Assuming we get a Phillips
`construction today --
`MR. KUSHAN: Yes.
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`JUDGE TIERNEY: -- how would this turn out?
`MR. KUSHAN: I think in the Phillips
`construction, in the context of the District Court proceeding,
`we had advanced arguments showing that there was a
`requirement for "direct" based on the argument that had been
`made in those patents during prosecution to overcome the
`references.
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`And in that setting, we felt, and we believe, that
`the construction should have been narrower because of these
`prosecution history estoppel arguments. This patent didn't
`have that same exchange. This patent also uses slightly
`different wording. But the upshot is that there wasn't the same
`kind of prosecution history estoppel derived to distinguish
`over the prior art in this patent.
`So if you are looking at this in an independent
`patent perspective under the broadest reasonable construction,
`there is not a foundation to bring in to give the effect. The
`difference I think in this decision of the Board is that you
`were looking at the specific arguments they were making in
`the context of Aventail and whether Aventail meets those
`requirements. And I think correctly, you found that they do
`meet the direct requirement.
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`I also just want to flag one issue, which is we have
`seen this "direct" language come -- it seems to be a moving
`target, which makes it a much more difficult task to answer
`your question. Conceptually, I think it is possible you might
`end up with the same constructions. Here, "direct" has been
`such a moving target, it's hard to really give you a clean
`answer saying that it should apply or shouldn't, because it
`never seems to be the same.
`JUDGE TIERNEY: Do you have a definition for
`"direct" for today?
`MR. KUSHAN: Well, we looked at "direct" and
`we don't think there is a construction that is needed because
`we don't think it should be read into the Claim. We have
`given you one example how Aventail -- "direct" is interpreted
`to be a direct addressability. If that is "direct," Aventail has
`that, because Aventail shows you going to specific devices on
`the internal network. And that kind of direct connection
`would be one way of achieving "direct."
`I want to let Mr. Border very briefly cover Beser,
`if that's okay.
`JUDGE EASTHOM: Yes, thank you.
`MR. BORDER: Good morning, your Honors. Let's
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`go to Slide 22. I'm going to very quickly touch on Beser.
`Some of the same issues that were involved in Aventail,
`including whether it discloses a VPN communication link; this
`issue related to the combination of the two; and then the
`request and interception steps of the Claims.
`Let's go to Slide 23. I will do a quick overview of
`the Beser system. I think it's best represented over Figure 6.
`Quite simply, it describes a request from Originating Device
`24 to communicate with Terminating Device 26. And it does
`this by creating a tunnel between those two end devices that
`allows those devices to communicate anonymously.
`The tunnel is created with the assistance of the
`Trusted Third- Party Network, Device 30, and then these two
`First and Second Network Devices.
`The Originating Device sends out a tunneling
`request specifying 26, it is intercepted, and then a secure
`tunnelling association is established between those devices.
`Now, in the bottom left corner I've included Case 3
`from RFC 2401, and it has a network structure very similar to
`that disclosed in Beser. It involves communications between
`two host devices, but in this case it encrypts the
`communications from end to end. And so as combined with
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`Beser, the result is an encrypted communication between the
`Originating Device and the Terminating Device.
`Let's go to Slide --
`JUDGE EASTHOM: Is that the reason that Patent
`Owner argues that there no VPN link in Beser, because the
`encryption -- that Beser keeps it away from encryption? Is
`that how you understand their argument?
`MR. BORDER: Yes, your Honor. If you can go to
`Slide 30. Patent Owner's argument, your Honor, is that Beser
`expressly differentiates its tunnel between Devices 24 and 26
`from a VPN. I have two observations.
`First, this doesn't address the construction of
`virtual private network communication link. Instead, it simply
`addresses a statement from Beser that was differentiating one
`particular type of prior art VPN technique. And it says
`nothing about whether Beser describes a VPN communication
`link as described in the Claims. And it certainly doesn't say
`anything about whether Beser, in view of RFC 2401, describes
`the virtual private network communication link in the Claims.
`And if you can go to Slide 31, again we are dealing
`with the same evidence that the Board considered in
`IPR2015- 866 and - 868. And the Board said, "To the extent
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`that Beser criticizes VPN's, we find these statements refer
`explicitly to prior art VPN methods."
`So I think, your Honors, because the Patent Owner
`in this proceeding has offered no new evidence and no new
`theories, it has given no reason for the Board to depart from
`that prior determination.
`Real quickly, can we back up to Slide 27? Now,
`this relates to whether a person of ordinary skill would
`combine the Beser and RFC 2401 references. This has been
`considered a number of times, including in IPR2014 -237,
`which Mr. Kushan discussed during his presentation. And,
`again, the Board has found -- both in this case and a number of
`other cases -- that a person of ordinary skill would recognize
`the teachings in Beser and RFC 2401 could be combined to
`describe a system that provides end- to- end encryption.
`Let's go to Slide 33, please. The next disputed
`issue in Beser is whether Beser discloses a request to look up
`an IP address. Go to the next slide, please. We showed that
`Beser sends from the Originating Device 14 a request to
`establish communication link with the Terminating Device 26
`that is actually received both by the First Network Device and
`the Third- Party Trusted Network Device. And in response, it
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`looks up a public IP address at both the Second Network
`Device and the Terminating Device.
`If you can go to the next slide, please. Patent
`Owner's only criticism was similar to its criticisms in prior
`proceedings where it says that there is no structure that is
`actually looked up when it is received -- when this tunnelling
`request is received by Device 30. But if you can go to the
`next slide, initially the Claims say nothing about the
`mechanics of how this lookup occurs; it simply says that it
`does. And as the Board has found previously, Beser's
`tunnelling request, which includes a domain name, is a request
`for a lookup of an IP address.
`Again, we are dealing with the same evidence that
`we dealt with in these prior proceedings. We are dealing with
`the same arguments by the Patent Owner. And they have given
`no reason for the Board to depart from this correct
`determination.
`Let's go to Slide 38. The last issue is whether
`Beser shows interception. Next slide. We pointed to the
`functionality where this tunnelling request is received both by
`the First Network Device and the Third- Party Network Device.
`We showed how both of those instances were interception
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`within the Board's construction.
`Next Slide. In response, Patent Owner makes the
`argument that -- in response, the Patent Owner makes the
`argument that they weren't consistent with how the Petitioner's
`expert understands the terms. But that misrepresents what our
`expert said. Go to the next Slide.
`I'm sorry; back up a second. What our expert was
`saying was he was explaining his rationale underpinning his
`construction of interception, which was simply receiving at
`one device a request pertaining to a different entity. Do we
`have that construction? Not here? Okay.
`If you go to the next slide. Here it is. What
`Dr. Tamassia was explaining was his rationale underpinning
`this "...receiving a request pertaining to a first entity at
`another entity." He wasn't trying to read additional
`requirements in the Claim. The Board already considered this
`issue -- and, again, we are relying on the same evidence
`here -- and it found that Beser's tunnelling request is in fact
`intercepted and it is a request to look up an IP address.
`Finally, if you go to Slide 42. This relates to the
`prior art
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