throbber

`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`AMAZON.COM, INC., AMAZON.COM, LLC,
`AMAZON WEB SERVICES, INC., BAZAARVOICE,
`INC., GEARBOX SOFTWARE, LLC,
`Appellants
`
`v.
`
`ZITOVAULT, LLC,
`Appellee
`______________________
`
`2017-2147
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. IPR2016-
`00021, IPR2016-01025.
`______________________
`
`Decided: November 16, 2018
`______________________
`
`DAN L. BAGATELL, Perkins Coie LLP, Hanover, NH,
`argued for appellants. Also represented by GRANT
`EDWARD KINSEL, Los Angeles, CA; CHRISTINA JORDAN
`MCCULLOUGH, JONATHAN R. PUTMAN, Seattle, WA.
`
` JUSTIN NEMUNAITIS, Caldwell Cassady & Curry,
`Dallas, TX, argued for appellee. Also represented by
`
`

`

`2
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`JASON DODD CASSADY; MICHAEL RAYMOND CASEY, Oblon,
`McClelland, Maier and Neustadt, LLP, Alexandria, VA.
`______________________
`
`Before PROST, Chief Judge, O’MALLEY and STOLL, Circuit
`Judges.
`Opinion for the court filed by Circuit Judge STOLL.
`Dissenting Opinion filed by Chief Judge PROST.
`STOLL, Circuit Judge.
`Amazon.com, Inc., Amazon.com, LLC, Amazon Web
`Services, Inc., Bazaarvoice, Inc., and Gearbox Software,
`LLC, (collectively, “Amazon”), appeal from a final written
`decision of the Patent Trial and Appeal Board in which
`the Board held that Amazon failed to prove Zito-
`Vault, LLC’s U.S. Patent No. 6,484,257 unpatentable.
`The Board did not err in its claim construction, and it
`correctly held Amazon to its burden of proof. Because it
`did not err in finding Amazon failed to carry that burden
`and because it did not violate Amazon’s procedural due
`process rights, we affirm.
`BACKGROUND
`ZitoVault’s ’257 patent seeks to improve computer
`systems’ handling of encrypted communications. See
`’257 patent col. 3 l. 65–col. 4 l. 1. Rather than using a
`single “main” server to decrypt every communication, the
`disclosed system also enlists the computers receiving the
`communications as decryption agents, thereby avoiding
`bottlenecks, as shown in Figure 2.
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`3
`
`Id. at Fig. 2; see also id. at col. 7 ll. 21–34. Representative
`claims 1 and 6 describe the claimed invention:
`1. A system for conducting a plurality of crypto-
`graphic sessions over a distributed network of
`computers, employing a distributed automaton
`running on the network comprising M agents for
`servicing N number of simultaneous cryptograph-
`ic sessions wherein bandwidth and number of ses-
`sions are scalable by the M agents and latency is
`potentially reducible to zero comprising:
`a main server;
`one or more clients communicating over the
`distributed network with said main server and
`agents;
`
`

`

`4
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`M agents communicating with the main serv-
`er for enlisting additional agents to support in-
`cremental cryptographic sessions with the clients
`to maintain system performance at a desired lev-
`el; and for encrypting and decrypting communica-
`tion traffic as it arrives from the clients via the
`main server, the agents comprising a single-to-
`many connection (1 client, M agents) with respect
`to the clients, such that portions of the bandwidth
`are equally divided among the M agents for pro-
`cessing, and the agents combine the processing
`power of all computers connected to the system to
`service encryption and decryption and enable
`bandwidth to be scalable by the M agents and to
`reduce latency substantially to zero.
`***
`6. A method for implementing a scaleable soft-
`ware crypto system between a main server and
`one or more agent servers communicating with
`one or more clients such that performance of the
`crypto system is increased to meet any demand
`comprising
`providing a secure communication between
`the main server, agent server, and one or more
`clients such that communication between the
`main server and agent server enlists additional
`agent servers to support incremental secure ses-
`sions in response to maintaining performance at a
`desired level.
`Id. at claims 1, 6 (emphases added to highlight disputed
`claim term).
`
`After ZitoVault sued Amazon for infringement, Ama-
`zon petitioned for inter partes review of the ’257 patent.
`Amazon raised three grounds of unpatentability, each
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`5
`
`based on U.S. Patent No. 6,065,046 (“Feinberg”), and each
`instituted by the Board.
` Over the course of the IPR, the parties’ dispute crys-
`talized around the issue of whether Feinberg discloses the
`claimed “sessions.” Amazon relied on Feinberg for every
`claim limitation reciting “sessions.” But Amazon did not
`delineate exactly where Feinberg describes the claimed
`sessions and did not explain what constitutes a session in
`Feinberg’s system. Amazon also did not propose a con-
`struction of “sessions,” but its expert testified that a
`“session generally refers to one or more communications
`exchanged between two entities over some period of time.”
`J.A. 540.
`
`At the institution stage, the Board accepted Amazon’s
`contention that Feinberg discloses “sessions.” Citing a
`telecommunications dictionary, it preliminarily construed
`“sessions” as “a set of transmitters and receivers, and the
`data streams that flow between them.” J.A. 180. It found
`that “based on that construction, the mere exchange of
`data (e.g., encrypted code modules), as disclosed in Fein-
`berg, falls within the scope of the claimed sessions.” Id.;
`see also J.A. 185–86 (“[W]e adopt a broader construction
`of the term ‘session’ that encompasses simply the ex-
`change of [data] packets.”).
` In its Patent Owner Response, ZitoVault maintained
`that Feinberg lacked the claimed sessions. It offered
`expert testimony that a “session” “must refer to a connec-
`tion with a defined beginning and end” so that the server
`can determine which incoming data belongs to which
`session. J.A. 219–20, 1184–86. ZitoVault further con-
`tended that Amazon’s petition was defective because it
`“fail[ed] to specifically identify what it contends is the
`‘session’ in Feinberg or how that session is initiated,
`maintained, or terminated.” J.A. 235. ZitoVault sepa-
`rately urged the Board to find that a reference must
`disclose “negotiating the initiation of a stream with a
`
`

`

`6
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`defined beginning and end,” to disclose a “data stream,”
`as required by the Board’s preliminary construction of
`“sessions.” J.A. 237–38.
`At oral argument before the Board, Amazon conceded
`that a “session” would have a beginning and an end,
`J.A. 317, 319–20, 327, but it maintained that a reference
`need not disclose “protocol level” details regarding data
`stream initiation and termination to meet the claims,
`J.A. 319–20. In response to questions from the Board,
`Amazon specifically invited the panel to require a begin-
`ning and an end as part of its construction of “sessions,”
`J.A. 326–27, asserting that “there can’t be any meaningful
`doubt” that Feinberg discloses a session with a “recog-
`nizable beginning and end,” J.A. 381.
`In its final written decision, the Board narrowed its
`preliminary construction of “sessions.” It construed the
`term as “a set of transmitters and receivers, and the data
`streams that flow between them wherein each data
`stream flowing between the transmitters and receivers has
`a recognizable beginning of the data stream transmission
`and a recognizable end of the data stream transmission.”
`J.A. 15 (emphasis added). It explained that it added the
`italicized portion of the construction to clarify “that there
`must be delineation between multiple sessions to allow
`one to distinguish multiple sessions from one another.”
`J.A. 14. The Board noted that both parties had agreed to
`its final construction. J.A. 22. And it emphasized that its
`“modified interpretation” did not limit a “session” “to any
`particular technique or protocol for recognizing the begin-
`ning and end of a session exchanged between a transmit-
`ter and a receiver,” rejecting that aspect of ZitoVault’s
`argument. J.A. 14.
`Applying the modified construction, the Board held
`that Amazon failed to prove that Feinberg disclosed
`“sessions.” It stated that Amazon “failed to identify what
`constitutes a ‘session’ in Feinberg,” J.A. 22, and that
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`7
`
`Amazon’s “excessively generic” analysis of limitations
`reciting “sessions” left “uncertain what Petitioner regards
`as a session in Feinberg, much less how it begins and how
`it ends,” id.; see also J.A. 20–26. The Board therefore held
`that Amazon had not shown invalidity, and it entered a
`decision for ZitoVault. Amazon appeals, challenging the
`Board’s construction of “sessions” and its rejection of
`Amazon’s anticipation and obviousness grounds, and
`asserting procedural due process violations. We have
`jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
`DISCUSSION
`This court reviews the Board’s legal determinations
`de novo and the Board’s factual determinations for sub-
`stantial evidence. Belden Inc. v. Berk-Tek LLC, 805 F.3d
`1064, 1073 (Fed. Cir. 2015). “A finding is supported by
`substantial evidence if a reasonable mind might accept
`the evidence to support the finding.” Polaris Indus., Inc.
`v. Arctic Cat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018).
`I
`Amazon first challenges the Board’s construction of
`“sessions.” We review the Board’s ultimate claim con-
`structions de novo, see In re Man Mach. Interface Techs.
`LLC, 822 F.3d 1282, 1285 (Fed. Cir. 2016), and we review
`any subsidiary factual findings involving extrinsic evi-
`dence for substantial evidence, see Teva Pharm. USA, Inc.
`v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). In IPR, claims
`receive their broadest reasonable interpretation.1 See
`
`
`1 Per recent regulation, the Board will apply the
`Phillips claim construction standard to petitions filed on
`or after November 13, 2018. See Changes to the Claim
`Construction Standard for Interpreting Claims in Trial
`Proceedings Before the Patent Trial and Appeal Board,
`83 Fed. Reg. 51340 (Oct. 11, 2018) (to be codified at
`
`

`

`8
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`37 C.F.R. § 42.100(b). We have emphasized that under
`the BRI standard, the Board’s construction must be
`reasonable, that is, consistent with the record evidence
`and the understanding of one skilled in the art. See
`Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298
`(Fed. Cir. 2015), overruled on other grounds by Aqua
`Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017)
`(en banc). Because the Board’s construction comports
`with that standard, we affirm it.
` The Board construed “sessions” as “a set of transmit-
`ters and receivers, and the data streams that flow be-
`tween them wherein each data stream flowing between
`the transmitters and receivers has a recognizable begin-
`ning of the data stream transmission and a recognizable
`end of the data stream transmission.” The required
`“recognizable” beginning and end of the data stream
`transmission, the Board explained, permits the system to
`distinguish one session from another. J.A. 12, 14.
`The plain claim language supports requiring a “recog-
`nizable” beginning and end. Independent claims 1, 7, and
`10 each recite conducting a “plurality” of “sessions,” claim
`6 requires multiple “sessions,” and claim 7 recites provid-
`ing “simultaneous” sessions “among agents, server and
`clients,” all of which suggest that the system recognizes
`distinct sessions. See, e.g., ’257 patent at claims 1, 6, 7,
`10. The specification similarly supports the understand-
`ing that the system must delineate between sessions. It
`describes that the server “determines if it can accept a
`new session” after considering the bandwidth used by
`existing sessions, id. at col. 7 ll. 25–36 (emphasis added),
`and it explains that the server may transfer or redirect
`particular sessions as needed, id. at col. 7 l. 62–col. 8 l. 9.
`The prosecution history contains no contrary disclosure.
`
`37 C.F.R. pt. 42). Because Amazon filed its petition before
`November 13, 2018, we apply the BRI standard.
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`9
`
`Extrinsic evidence further supports the Board’s con-
`struction. Both parties’ experts agreed that a session has
`a beginning and end. Amazon’s expert, Dr. Aviel Rubin
`explained that “[s]essions have start and end times,”
`J.A. 1072 at 140:19–20, while ZitoVault’s expert,
`Dr. Jonathan Katz, testified that a “session has a discern-
`able beginning and end” and explained that this temporal
`aspect allows the system to distinguish among sessions,
`J.A. 1186. A telecommunications dictionary cited by the
`Board similarly emphasizes the temporal aspect of a
`“session,” defining the term as “[a] set of transmitters and
`receivers, and the data streams that flow between them.
`In other words, an active communication, measured from
`beginning to end, between devices or applications over a
`network.” J.A. 1254 (emphasis added).
`Moreover, both parties agreed to the Board’s construc-
`tion. Amazon informed the Board that:
`If adding, you know, a beginning or an end to the
`session would provide the Board with comfort, the
`Panel with comfort, that we can distinguish be-
`tween when one session starts or one session ends
`then, you know, I don’t have any objection to that
`given that that is what Dr. Rubin [Amazon’s ex-
`pert] said a session was.
`See J.A. 326 (emphases added); see also J.A. 320 (“Now, if
`all we’re proposing is that there needs to be a beginning
`and an end to a session . . . I think that is clearly – that’s
`something that we had proposed or at least suggested
`through Dr. Rubin’s declaration.”); Oral Arg. at 7:10–15,
`http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
`17-2147.mp3 (“We agreed to ‘recognizable’ . . . .”). The
`Board adopted the construction invited by Amazon, and
`that construction accords with both the intrinsic and the
`extrinsic evidence. We decline to disturb it on appeal.
`See Key Pharm. v. Hercon Labs. Corp., 161 F.3d 709, 715
`(Fed. Cir. 1998) (“The impropriety of asserting a position
`
`

`

`10
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`which the trial court adopts and then complaining about
`it on appeal should be obvious . . . . Indeed, we could
`appropriately refuse to entertain [party’s] appeal on the
`issue of claim construction.”).
`Amazon contends that even if the Board did not err in
`its literal construction of “sessions,” it erred by implicitly
`requiring disclosure of the protocols by which a session
`begins and ends. See Appellants’ Br. 25, 32 (asserting
`“the Board required the prior art to disclose a particular
`technique for recognizing the beginning and end of a
`session” and that the Board “did not simply require a
`‘recognizable’ beginning and end”). We disagree. Contra-
`ry to Amazon’s argument, the Board expressly stated that
`its “interpretation is not limited to any particular tech-
`nique or protocol for recognizing the beginning and end of
`a session” and that “[a] wide variety of techniques for
`such beginning and ending determinations are within the
`scope . . . of ‘session.’” J.A. 14 (emphasis added). We
`reject Amazon’s assertion that the Board implicitly adopt-
`ed a construction that it expressly rejected in its final
`written decision.
`
`II
`Amazon also objects to the Board’s ultimate rejection
`of its anticipation and obviousness challenges, claiming
`that Feinberg discloses the “sessions” limitations under
`the Board’s construction. See, e.g., Appellants’ Br. 25
`(“The Board specified that its modified interpretation was
`‘not limited to any particular technique . . . .’ Had that
`been the Board’s final word, Feinberg’s disclosure would
`still have satisfied the ‘sessions’ limitations.”); Reply
`Br. 3–6; Oral Arg. at 8:51–9:47. Without resolving the
`question of what Feinberg discloses, the Board found that
`Amazon failed to offer sufficient proof that Feinberg
`discloses “sessions.” We agree.
`In an IPR, the petitioner bears the burden of proof.
`See In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364,
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`11
`
`1375–77 (Fed. Cir. 2016). “[M]ere conclusory statements”
`cannot suffice; the petitioner “must instead articulate
`specific reasoning, based on evidence of record” to support
`its grounds of unpatentability. Id. at 1380; see also Har-
`monic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363
`(Fed. Cir. 2016) (“In an IPR, the petitioner has the burden
`from the onset to show with particularity why the patent
`it challenges is unpatentable.”).
`In its petition, Amazon never explained how or when
`Feinberg distinguishes between sessions—Amazon never
`even defined a “session” in Feinberg’s system. Even in its
`reply, after ZitoVault placed the “sessions” terms at issue,
`Amazon argued only that Feinberg discloses “sessions,”
`without explaining whether any of Feinberg’s “sessions”
`begin and end, despite admitting in the same paper that a
`“session” would begin and end. J.A. 279–82; see also
`J.A. 540 (asserting that a “session generally refers to one
`or more communications exchanged between two entities
`over some period of time”). At oral argument, following
`the Board’s close questioning on this issue, Amazon
`offered only attorney argument that Feinberg “clearly”
`discloses sessions having a beginning and an end.
`J.A. 381. To the extent Amazon intended to present an
`inherency argument, these assertions fall short. See
`Oral Arg. at 5:35–6:35. We agree with the Board that
`Amazon’s failure to explain “what [it] regards as a session
`in Feinberg” and “whether a request in Feinberg begins a
`session, or something else in Feinberg begins a session,”
`dooms its petition.2 J.A. 22.
`
`
`2 At argument, Amazon asserted that “a session be-
`gins when there is a request for service and then when
`the file is transferred it’s done.” Oral Arg. at 9:38–44. We
`express no opinion on this theory or on whether Feinberg
`discloses “sessions” to one of ordinary skill. Like the
`
`

`

`12
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`III
`Finally, Amazon argues that at oral argument before
`the Board, ZitoVault argued for the first time that “a
`‘session’ required a pre-conversation between communica-
`tion endpoints that established specific parameters for the
`conversation.” Appellants’ Br. 3, 7, 59–61. Amazon
`asserts that in relying on this new argument without
`providing it with an opportunity to respond, the Board
`violated its due process rights.
`Parties before the Board must receive adequate notice
`of the issues the Board will decide and an opportunity to
`be heard on those issues. See Genzyme Therapeutic Prod.
`Ltd. v. Biomarin Pharm. Inc., 825 F.3d 1360, 1367
`(Fed. Cir. 2016); see also 5 U.S.C. § 554(c). We have
`therefore rejected evidence and arguments supplied for
`the first time at oral argument. See Dell Inc. v. Acceleron,
`LLC, 818 F.3d 1293, 1301 (Fed. Cir. 2016) (“[T]he Board
`denied [party] its procedural rights by relying in its
`decision on a factual assertion introduced into the pro-
`ceeding only at oral argument, after [party] could mean-
`ingfully respond.”).
`Here, however, ZitoVault advocated for the inclusion
`of a “pre-conversation” requirement in its patent owner
`response. See J.A. 237–38 (“Petitioners must demonstrate
`that Feinberg discloses negotiating the initiation of a
`stream with a defined beginning and end.” (emphasis
`added)). Indeed, Amazon specifically addressed this
`argument in its reply brief and at oral argument.
`J.A. 279–81, 319–20; see also Reply Br. 21–22 (conceding
`that “Appellants suspected ZitoVault was positioning
`itself
`to
`inject unwarranted
`additional
`limita-
`tions . . . . Appellants attempted to warn the Board as
`
`
`Board, we “decline to speculate in that regard” on this
`record. J.A. 22.
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`13
`
`much . . . .”). Having had—and taken—at least two
`opportunities to address ZitoVault’s argument, Amazon
`cannot credibly argue that it was taken unaware. Moreo-
`ver, as discussed, the Board rejected ZitoVault’s request
`to require protocol-level disclosures. See J.A. 11–15. We
`therefore reject Amazon’s argument that the Board de-
`nied it procedural due process.
`CONCLUSION
`We have considered the parties’ remaining arguments
`and find them unpersuasive. The Board’s final written
`decision is therefore affirmed.
`AFFIRMED
`COSTS
`
`Costs to Appellee.
`
`

`

`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`AMAZON.COM, INC., AMAZON.COM, LLC,
`AMAZON WEB SERVICES, INC., BAZAARVOICE,
`INC., GEARBOX SOFTWARE, LLC,
`Appellants
`
`v.
`
`ZITOVAULT, LLC,
`Appellee
`______________________
`
`2017-2147
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. IPR2016-
`00021, IPR2016-01025.
`______________________
`
`
`
`PROST, Chief Judge, dissenting.
`Because I believe that the Board’s analysis of the
`term “sessions” was flawed, I disagree with the majority.
`First, Amazon never agreed that “sessions” must include
`protocol-level instructions for beginning and ending a
`data stream. Second, the intrinsic evidence does not
`justify reading in this limitation. I therefore respectfully
`dissent. In my view, the claim construction should be
`reversed and the Board’s analysis of anticipation and
`
`

`

`2
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`obviousness, which relies on that construction, should be
`vacated.
`
`I
`As an initial matter, I agree with the majority that
`the Board’s original construction was problematic.
`As the Board eventually recognized, its preliminary
`construction was overbroad. J.A. 12. Under that con-
`struction, “sessions” encompassed any electronic move-
`ment of data—requiring nothing more than a data stream
`between two endpoints. See J.A. 11–12. Consequently, in
`a given data stream, a session could be made up of multi-
`ple packets. But it was also possible that even a single
`packet in that stream could constitute a session.1 Due to
`the breadth of the Board’s preliminary construction, there
`was no way to tell which data belonged to which session.
`In turn, the Board’s chief concern with its preliminary
`construction was that it did not “allow multiple sessions
`to be distinguished from one another.” J.A. 12.
`In light of the claim language, that concern was well
`grounded. Particularly, claims 1, 6, 7, and 10 all refer to
`a plurality of “sessions.” Claim 7 refers to “simultaneous”
`sessions. On this basis, the Board concluded that “there
`must be sufficient delineation . . . that separates a ‘ses-
`sion’ between one client and one server and a different
`‘session’ when one of the client and server are replaced,
`and that separates multiple sessions from each other even
`between the same pair of client and server.” J.A. 12–13.
`
`1 To illustrate the problem, the Board explored the
`following hypothetical: imagine a sender sends a message
`totaling one gigabyte. See J.A. 315–16, 327. In view of
`the original construction, because “every byte is an infor-
`mation sent over a connection,” it is unclear whether in
`this example there would be one session of a thousand
`bytes, or a thousand sessions of one byte each. J.A. 316.
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`3
`
`II
`Though the Board’s reason for revising its construc-
`tion was sound, its implementation was flawed. In an
`attempt to clarify that each session must be separately
`identifiable, the Board improperly read in a limitation
`from the specification.
`Specifically, the Board imposed the requirement that
`a session have a “recognizable beginning” and a “recog-
`nizable end” of the data stream transmission. J.A. 14. At
`ZitoVault’s suggestion, the Board then went further. It
`construed the term to require specific disclosure of a
`“technique,” such as a protocol, to “determine[]” the
`begin/end point of a communication between endpoints.
`Id. That is, based largely on attorney argument at the
`oral hearing, the Board imported an additional require-
`ment that each session have an instruction with protocol-
`level detail about how to initiate and terminate a data
`stream.2 See J.A. 22.
`However, the patent does not require that all sessions
`have a defined instruction for beginning or ending. A
`system certainly could end according to a given protocol,
`by transmitting a termination instruction that the end-
`points recognize. But a session may not have a prescribed
`
`
`2 The Board did not limit “sessions” to a specific
`type of protocol (e.g., Transmission Control Protocol
`(“TCP”)). See J.A. 14 (clarifying revised construction is
`not limited to “any particular technique or protocol” for
`“recognizing the beginning and end of a session exchanged
`between a transmitter and a receiver”). Rather, it con-
`cluded that a “wide variety of techniques for such begin-
`ning and ending determinations are within the scope of
`our interpretation of ‘session,’ including SSL and IPSec
`protocols disclosed in the exemplary embodiments of the
`’257 patent.” Id.
`
`

`

`4
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`“end.” Instead, it might terminate “if a sender stopped
`sending.” J.A. 950 at 18:21–22 (Rubin Dep.). The patent
`is agnostic about whether a session has a defined
`begin/end instruction in advance of the communication.
`Nothing in the ’257 patent excludes the possibility that a
`session may end simply because no more data is transmit-
`ted.
`Nonetheless, ZitoVault offers two main arguments to
`justify importing this limitation. First, ZitoVault claims
`Amazon agreed to this limitation during oral argument
`before the Board. Second, it claims the intrinsic evidence
`supports the limitation. The majority accepts these
`arguments. I cannot. I address both arguments below.
`A
`ZitoVault first argues that Amazon agreed to the
`Board’s narrow revised construction. Though Amazon
`agreed with the simple premise that all communications
`have an identifiable beginning and end, it consistently
`resisted ZitoVault’s attempts to read “sessions” as requir-
`ing details or pre-defined instructions of how and when a
`communication begins and ends.
`In its reply brief before the Board, Amazon explained:
`“Of course a session begins and ends at some point—that
`is axiomatic. But that is not the same as requiring disclo-
`sure of the details of an initiation and termination pro-
`cess.” J.A. 282 (emphasis added).
`During the oral hearing before the Board, Amazon
`agreed that the preliminary construction could be revised
`to clarify that a session has “a beginning or an end” if that
`“would provide the Board with comfort . . . that we can
`distinguish between when one session starts or one ses-
`sion ends.” J.A. 326. In other words, Amazon agreed that
`the construction could include an express acknowledg-
`ment that all sessions have a discernable “beginning” and
`“end.” However, at no point did it concede that the term
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`5
`
`requires pre-defined instructions or protocols specifying
`when the session begins or ends. Instead, Amazon em-
`phasized that “it is axiomatic, as we said in the papers,
`that a session has a beginning and an end. I don’t know
`that that needs to be part of the definition and it certainly
`shouldn’t be used as a leverage point.” Id.
`Consistent with that position, Amazon then explained
`that its expert, Dr. Rubin, opined that a session “general-
`ly refers to one or more communications exchanged be-
`tween two entities over some period of time.” J.A. 327–28
`(quoting J.A. 450 (Rubin Decl.)). Amazon clarified that
`this opinion was consistent with the Board’s original
`construction. See J.A. 328 (“I continue to think that is
`effectively what the Panel has adopted . . . .”).
`The Board responded: “That would seem to satisfy
`[ZitoVault’s] assertion it has to be well defined. That
`would seem to define the session. It is just that we don’t
`need further details as to the protocol.” Id. (emphasis
`added). Amazon replied: “I think that’s right. I mean,
`clearly Dr. Rubin believes that you would have a session
`over time, it is generally measured over time . . . .” Id.
`As shown above, Amazon simply conceded that all
`sessions or communications naturally involve exchange of
`information over some period of time. That period of time
`inherently has a beginning and an end. That beginning
`and end can be recognized or identified. Despite Zito-
`Vault’s selective quotes from the oral hearing, however,
`Amazon consistently opposed the idea that “sessions”
`required a defined instruction governing how a data
`stream begins and ends. As such, I conclude that Amazon
`never acquiesced to this narrow construction.
`B
`ZitoVault’s second argument that the intrinsic evi-
`dence supports this construction is without merit. Nei-
`ther the claims nor the specification require a technique
`
`

`

`6
`
`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`for beginning and ending a session. Unsurprisingly, the
`Board cited no clear intrinsic evidence to support such a
`requirement. See generally J.A. 11–15. At bottom, the
`Board’s construction improperly reads in a limitation from
`the specification.
`The focus of the claimed invention is not some im-
`provement on protocols for how sessions begin or end.
`Instead, the ’257 patent focuses on how to “scale” a net-
`work involving multiple sessions. ’257 patent col. 4 ll. 45–
`51 (“[A]n aspect of the invention provides a distributed
`software solution for encryption/decryption which is
`infinitely scaleable in the number of simultaneous ses-
`sions capable of being processed by a server . . . .”); id. at
`col. 11 ll. 8–11 (“This is a new and non-obvious application
`of distributed algorithm technology as applied to encryp-
`tion and decryption and greatly enhances scalability.”).
`Unsurprisingly, then, the claim language does not fo-
`cus on the need for specific techniques governing when a
`session begins or ends. The only claim to even recite
`“terminating” a communication is dependent claim 9.
`Claim 9, which is not at issue, adds the required step of
`“terminating encrypted session communication upon
`successfully transferring a session from main server to
`one or more agents.” No other claim mentions terminat-
`ing a session.
`As the majority notes, the specification does provide a
`single example of how a session might be established and
`terminated. This example, however, is provided “[i]n
`accordance with an aspect of [the] invention.” Id. at col. 6
`ll. 2–48 (discussing how the preferred embodiment in
`Figure 4 establishes a session); id. at col. 8 ll. 23–27
`(discussing how the same embodiment terminates a
`session). Dependent claim 9 appears to claim the pre-
`ferred embodiment of Figure 4. As no other claim even
`discusses “terminating,” I decline ZitoVault’s invitation to
`
`

`

`AMAZON.COM, INC. v. ZITOVAULT, LLC
`
`7
`
`read the preferred embodiment of Figure 4 into the rest of
`the claims via the term “sessions.”
`III
`As discussed above, the claims require “sessions,”
`which in turn requires that sessions can be delineated
`from one another. Consistent with the intrinsic evidence,
`the term “sessions” should be construed as: “Sets of data
`exchanged between endpoints, wherein each set is ex-
`changed over a period of time and is uniquely identifia-
`ble.” The level of detail required by the claims is simply
`whether a data set exists that is identifiable or distin-
`guishable from other sets in a data stream. There is no
`specific restriction on how the set of data is identified.
`For the reasons above, I believe the Board’s construc-
`tion adopted by the majority was flawed. As a result, the
`Board’s rulings on anticipation and obviousness should be
`vacated, and the case should be remanded for further
`proceedings consistent with the proper construction of the
`term “sessions.” Therefore, I respectfully dissent.
`
`

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