`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EMERSON ELECTRIC CO.,
`Petitioner,
`
`v.
`
`IP CO., LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01602
`Patent 6,249,516
`____________
`
`Record of Oral Hearing
`Held: November 13, 2017
`____________
`
`
`
`Before THOMAS L. GIANNETTI, BRYAN F. MOORE, and TREVOR M.
`JEFFERSON Administrative Patent Judges.
`
`
`
`
`Case IPR2016-01602
`Patent 6,249,516
`
`
`
`
`APPEARANCES:
`
`ON BEHALF OF PETITIONER:
`
`
`JAMES R. BATCHELDER, ESQUIRE
`MATTHEW W. SHAPIRO, ESQUIRE
`Ropes and Gray LLP
`1900 University Avenue, 4th Floor
`East Palo Alto, California 94303-2284
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`GREGORY GONSALVES, ESQUIRE
`The Gonsalves Law Firm
`2216 Beacon Lane
`Falls Church, Virginia 22043
`
`
`
`The above-entitled matter came on for hearing on Monday, November
`
`13, 2017, commencing at 2:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2016-01602
`Patent 6,249,516
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`P R O C E E D I N G S
`- - - - -
`JUDGE GIANNETTI: Good afternoon everyone. We are here for
`final argument in case IPR2016-01602, the caption of the case Emerson
`Electric Company versus IP Co., LLC involving patent number 6,249,516.
`All right counselors, may we get your appearances? Who is appearing today
`for the Petitioner first?
`
`MR. BATCHELDER: Good afternoon Your Honor. My name’s
`James Batchelder. I’m from the law firm of Ropes and Gray on behalf of
`Petitioner Emerson Electric. With me today are my colleagues Jim Davis
`and Matthew Shapiro.
`
`JUDGE GIANNETTI: Okay. Who will be making the presentation
`for the Petitioner, Mr. Batchelder?
`
`MR. BATCHELDER: I will and Mr. Davis.
`
`JUDGE GIANNETTI: Okay. And who do we have today for the
`Patent Owner?
`
`DR. GONSALVES: Good morning, Your Honors. My name is Dr.
`Gregory Gonsalves and I will be representing the Patent Owner, IP Co.,
`LLC.
`
`JUDGE GIANNETTI: Dr. Gonsalves, thank you. Before we get
`started, let me just go over a couple of ground rules. Each side has 45
`minutes to present argument. The Petitioner will start. Petitioner may
`reserve rebuttal time to answer any arguments that are raised by Patent
`Owner. You may do that either at the beginning your presentation or if you
`prefer you may just reserve the balance of your time. Just let me know
`which you’re going to do. Both sides have provided us with demonstratives.
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`We have the demonstratives that you have provided us. There are some
`extra copies up here, is that right? Some extra copies up here?
`
`MR. BATCHELDER: We did submit extra copies.
`
`JUDGE GIANNETTI: Okay. Did you want to submit anything for
`the Patent Owner?
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`DR. GONSALVES: Your Honor, actually in my presentation I’ll be
`referring directly to the record. I think the slides will be useful to you just to
`give you an outline, but during my presentation I’ll refer to the record itself.
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`JUDGE GIANNETTI: Okay, you won’t be using the slides during
`your presentation?
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`DR. GONSALVES: That’s right. I do - -
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`JUDGE GIANNETTI: We have them - -
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`DR. GONSALVES: I do have extra copies if you want - -
`
`JUDGE GIANNETTI: That’s all right. We do have the copies that
`you’ve provided us by email. We have those available. I don’t think we’ll
`need the additional copies. All right, I do want to remind you though on the
`subject of demonstratives, if you do use demonstratives please refer to the
`number, the page number or the slide number so we have a clear record of
`what you are referring to. The demonstratives are not going to be filed.
`We’ve reviewed them and we’re not going to authorize filing of the
`demonstratives from either side but you can certainly use them as aids to
`argument, but I want to remind you they are not part of the record. The
`record of this hearing will be the transcript that’s going to be prepared by the
`Court Reporter, so if you want something in the record of the hearing, please
`put it on the record orally, don’t rely on the demonstratives. I don’t think I
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`have anything further. Do the parties have questions? Mr. Batchelder,
`anything further?
`
`MR. BATCHELDER: Just a couple of housekeeping (inaudible),
`Your Honor.
`
`JUDGE GIANNETTI: Sure.
`
`MR. BATCHELDER: In terms of reservation of time, we will simply
`reserve the balance of time but to give the panel some sense of it, depending
`on questions, we would in tend to reserve roughly 20 minutes.
`
`JUDGE GIANNETTI: Okay. So I will set the clock for 45 minutes
`and then I’ll try to give you some warning when you’ve reached the, I guess
`it would be the 25 minute point.
`
`MR. BATCHELDER: Thank you that would be helpful.
`
`JUDGE GIANNETTI: All right, thanks Mr. Batchelder.
`
`MR. BATCHELDER: And then also in terms of how Mr. Davis and I
`intend to divide up the argument, I will be handling the claim instruction
`issues at the outset. Mr. Davis will handle the main 103 issues and
`(inaudible) needed comment on secondary considerations, I will address
`those.
`
`JUDGE GIANNETTI: Okay, thank you very much Mr. Batchelder.
`Dr. Gonsalves, do you have any questions?
`
`DR. GONSALVES: No, Your Honor.
`
`JUDGE GIANNETTI: All right, so let me just set the clock up here
`and then we can get started. Mr. Batchelder, you may proceed whenever
`you’re ready.
`
`MR. BATCHELDER: Thank you, Your Honor. Again, James
`Batchelder on behalf of Petition (inaudible). I’m first going to address, as I
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`said, claim construction issues and if I may I’ll start with construction of
`path and link. And if we could turn to argument slide 6 within
`PetitionersConstruction, you’ll see the first bullet underneath various
`constructions says the specification consistently refers to the path as
`identifying each of the hops traversed by the data message packet. And we
`think that is true throughout the specification and in some definitional
`phraseology.
`
`So, for example the first box underneath that bullet has a couple of
`quotes from the abstract. It says that the path is either a direct path to the
`server or is an indirect path. And if it’s an indirect path it is through at least
`one of the remainder of the clients. So a path is something that goes through
`other clients unless it is a direct path to the server. And later on the abstract,
`again, refers to path or link reflecting that those are synonymous terms, and
`it says for example the process preferably optimizes the link to minimize the
`number of hops to the server. Again reflecting the path is comprised of hops
`from the client to the server. And then the last 2 boxes, for example on slide
`6, one from column 5, one from column 11 of the specification; the first
`from column 5 says a radio transmission path per a link. Again reflecting
`those are synonymous to the server and then says that this radio transmission
`path to the server is either a direct path (one hop) or an indirect path to the
`server (multi hop) through one or more other clients. So again definitional,
`it’s describing the path or the link as comprised of hops.
`
`JUDGE GIANNETTI: So, Mr. Batchelder let me just stop you.
`Would you please explain what you see as the difference between the
`construction that your client i putting forth versus the PatentOwner’s?
`Because they look pretty close to me.
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`MR. BATCHELDER: I will say, Your Honor, that they are arguably
`quite close, but I think there’s some mischief in the wording of Patent
`Owners. And that mischief is the subject of slide 10 of Petitioner’s deck.
`One problem is it refers to the entire path of clients. And that could be read
`to mean multiple clients needs to share a given path, it’s not clear. But also
`Patent Owner’s construction would preclude a direct hop because it would
`always interpose, not just one client, but actually multiple clients between
`the client at issue and the server. Whereas Petitioner’s construction, we
`believe, is simply more precise by saying it’s an identification of each of the
`hops to be traversed of the data message packet on route to the server.
`
`It could be a direct hop or there could be interposed clients but they
`don’t have to be and so for each of those reasons - - although I agree read
`one way our constructions are quite close, we still think that ours is more
`precise. But perhaps to Your Honors’ point if we could put up Patent
`Owner’s slide deck slide 8, you’ll see in the second bullet from the bottom,
`even the Patent Owner says in its deck, and it said the same thing in its
`briefing, the specification clearly states that the link or path includes all the
`nodes along the path from the client to the server. That’s essentially our
`construction, again, we just say it a little more precisely by saying
`identifying teach of the hops.
`
`And then if we could look at Patent Owner slide 11, looking at that
`bottom bullet where Patent Owner itself quotes its own deposition question
`and answer. So suppose you you’d have described the forward link as C, B,
`A, S and it says how would you describe the corresponding reverse link? So
`Patent Owner itself in deposition questioning is defining the path in terms of
`the hops, from the client to B to A to S the server.
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`Again, to Your Honors’ point, I think we’re all essentially on the same
`page. We believe that ours is more precise and more accurate. I will note
`that the Board’s construction as reflected on Petitioner slide 6 at the top, it
`appears to be pulled from the specification passage in which link is given
`alternative meanings. One is connection between adjacent notes that is
`client to client. And then the second is the entire path description from a
`given client to a given server and that language is actually on our slide 8.
`It’s in that first large box at the top of slide 8. You’ll see there from the
`specification in column 10 in the second paragraph, the term link is used to
`convey both A and B. So the connection to an adjacent client, that’s one
`definition, but I would just submit that in the claims, the terms path and the
`term link are always used in the second way that is to refer to the entire path.
`
`So we don’t think that including that definition of the adjacency
`between clients is helpful for this construction. And then the last language,
`the Board’s, as the preliminary construction referred to the entire path
`description from a given client to the server, and you see that’s the very last
`phrase in that quote. But that is preceeded by the phrase, all necessary links
`from that adjacent client to the server i.e. a link is the entire path. And so
`again definitionally the specification is saying that the entire path description
`is comprised of all necessary links which, again, and I think is another way
`of saying what we’ve said which is identifies each hop.
`
`JUDGE GIANNETTI: Thank you.
`
`MR. BATCHELDER: So if I can now turn to map of data packet
`transmission paths on argument slide 11 of Petitioner’s deck. Reading that
`phrase, the Board’s initial construction was that the claim map contains
`paths or links to a node in the network and that Patent Owner’s construction
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`refers to, as we highlight there in red, paths from the client. The problem
`with that is it suggests, and would require if imposed, that any given client
`have multiple paths in the claimed map. The claimed map does not require
`that language as simply maintaining a map of data transmission paths of a
`plurality of clients have said first network. So the map has to be directed to
`multiple clients and has to have multiple paths. There’s nothing in the claim
`that would preclude, for example, a given client to have only one
`corresponding path in the claimed map.
`I will say that the Patent Owner and its slide deck and its papers
`repeatedly suggest that Petitioner and the Board fail to recognize that paths
`with an “s” is a plural terms; not so. We make clear that paths is plural and
`in fact in our construction as in the Board’s, paths, and link, they both have
`“s”’s and they’re both intended to be plural.
`But the point is because there are multiple clients in the map, there are
`multiple paths in the map, our point is that the map does not require that for
`any given client there needs to be more than one path. And I would also just
`point out that in Patent Owner’s construction relatedly the client appears in a
`singular. It says paths from the client whereas in the claim language it is
`plural. The claim language is maintaining a map of data transmission paths
`of a plurality of clients, plural of said first network.
`So the fact that Patent Owner changes clients to client I think it is
`quite telling. They have rewritten the claim language and improperly so.
`Slide 12 addresses the last claim construction issue that I was going to speak
`to. And I will just say, it’s a long phrase but each of the words in that phrase
`is clear and the phrase itself is clear. The phrase, as reflected on the top of
`slide 12, is changing the transmission path from the client to the gateway, so
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`that the path to gateway is chosen. Every word is clear, the phrase itself is
`clear, and the Federal Circuit has made clear that when language has plain
`meaning at the claim construction phase there certainly is no obligation to
`rewrite it and in fact doing so can result in mischief.
`And in fact here the Patent Owner has rewritten that language and
`then in its briefing it has, if you will, construed its own construction in a way
`that is confusing and does indeed create mischief, which heightens the point
`that leaving plain language alone is the right thing to do here just as the
`board did in its preliminary construction. So with that I will see the podium
`to Mr. Davis to address the mainstay 103 arguments.
`
`JUDGE GIANNETTI: Are you ready, Mr. Davis?
`
`MR. DAVIS: Yes, thank you Your Honor. James Davis for
`Petitioner. I’m on slide 13. As the Supreme Court found in KSR, when a
`patent simply arranges old elements with each performing the same function
`and been known to perform and yields no more than what one would expect
`from such an arrangement the combination is obvious. And that’s
`preciously the case we have here.
`The claims are merely directed towards the server acting as a gateway
`between two networks and these claim concepts are things that have been in
`the field for decades before the 516 patent was filed. The Patent Owner’s
`arguments are really directed towards four particular limitations. The first is
`optimizing paths from the clients in that first network to the server. The
`second is adding headers to packets going from the second network into the
`first. The third is maintaining the map of each client’s paths to the server in
`the first network. And the fourth is using TCP/IP in the second network.
`And we’ll address each of those in turn.
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`At base though, unable to really avoid the un-patentability of each of
`these claims, Patent Owner’s arguments really fall into three categories: one
`is improperly reading limitations into the claims, two is misreading the
`references, and three is misunderstanding Petitioner’s arguments and the
`law. We’ll start off with the first limitation that I mentioned, changing the
`paths to optimize, that’s on slide 14 of Petitioner’s deck. Burchfiel discloses
`precisely this limitation. Burchfiel describes a station which corresponds to
`the server, and that storing what is called a connection table as reflected in
`the second box there. That connection table stores all the connections in the
`network and each of those connections contain a route to communicate
`between two points.
`The corresponding clients in the network of Burchfiel are the
`individual repeaters and terminals and as reflected in the bottom two quotes
`in slide 14, those terminals and those repeaters each have their own
`connections back up to the station. And the station as shown at the top quote
`there will reconfigure the paths by re-computing the minimum distance
`routes to the elements that are still active at that time and thus optimize.
`Patent Owner’s argument - - this is on slide 15, is that the paths only
`go from these station to the clients not vice versa as we just saw on slide 14,
`that’s precisely - - that’s simply incorrect. The repeaters and the terminals
`have their own connections back up to the station and they use those. And
`furthermore, Burchfiel expressly discloses as shown in the second quote here
`in the first white box, the PRN connection is bi-directional meaning it goes
`in both directions.
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`JUDGE GIANNETTI: Could this network be useful if it were not bi-
`directional (inaudible)
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`MR. DAVIS: Your Honor, I don’t think that’s been addressed in a
`briefing. I think it’s an implementation choice, perhaps whether or not you
`want to have the communications falling on direction or another but the
`point of the network and virtual is to have a communication flowing in both
`directions. So it wouldn’t make any sense to have the connections be
`directional.
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`JUDGE GIANNETTI: Well, maybe I’ll save the question for Dr.
`Gonsalves.
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`MR. DAVIS: With respect to slide 18, Patent Owner raises another
`argument that Burchfiel cannot possibly teach optimizing and initializing or
`component failure because no such path exists at that time. Again, that’s
`incorrect. There are at least three problems with that argument. First off, as
`we’ve already covered, Burchfiel is always optimizing, it is always re-
`computing the minimum distance routes relative to all possibilities reflected
`in the connectivity matrix. Second, when the component fails, the prior path
`that is stored in the connection table still exists. It’s no longer optimal
`because a component has failed and optimization then needs to occur to
`identify a minimum distance route. And third Burchfiel also optimized in
`other situations as well. Mr. Geier, in the second quote block there on slide
`18, refers to Burchfiel station optimizing at a couple different points, one of
`which is when the repeaters are reporting in.
`And this is Burchfiel at page 247, describes that idea of relabeling
`when those repeaters report in. And then again Burchfiel on page 250
`describes when there are changes in repeater terminal propagation
`connectivity, which is a little bit of a mouth full, but basically when there’s
`changes in which repeaters a terminal can speak to. Then those changes are
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`reflected in the connectivity matrix and again a optimization it performed
`identifying the minimum distance routes.
`Turning to slide 20, at the remainder of this limitation, cites a
`Markush Group of four different optimization criteria; the least possible
`addition clients, the most robust additional clients, the least amount of
`traffic, or the fastest clients. And to be clear, because it is a Markush Group
`a disclosure of any one of those four options would be sufficient to meet the
`claims and render them un-patentable or at least disclose this particular
`limitation.
`And that’s precisely what Burchfiel does. Burchfiel addresses the
`first of those four different criteria. Burchfiel looks for the least possible
`number of additional clients, i.e. the minimum distance routes and optimizes
`accordingly. And more as a belt and suspenders, Schwartz discloses all four
`of the potential optimization criteria as options, as shown there on slide 20.
`That’s reflected in the petition as well from which that is an excerpt.
`Turning to slide 21, Mr. Geier addresses why a person of ordinary
`skill in the art would have been motivated to apply these teachings, as shown
`in the first quote there. Because the Schwartz textbook advantageously
`provides additional criteria as well as specific implementation examples for
`how to implement these optimization criteria moving beyond the single
`choice in Burchfiel to four different possible choices for how to optimize.
`And this isn’t quoted on slide 21, but I direct the court to exhibit 1004
`paragraph 112, this was Mr. Geier’s opening declaration.
`Mr. Geier is of course our technical expert and he testified there that a
`person of ordinary skill in the art would have found it beneficial to look to
`Schwartz and apply Schwartz’s teachings of assigning a cost measure to,
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`“each link or possibly each note based on the context and priorities for a
`particular application.” Therefore depending on which optimization criteria
`is being selected from Schwartz, you apply the appropriate weight to the
`edges in the connectivity matrix and you make the calculation, depending on
`whatever is the least cost applying the algorithms directly disclosed in
`Schwartz.
`Patent Owner - - this is on slide 23, raises an argument and they raise
`this repeatedly actually ascertaining that algorithm A, which is the algorithm
`relied on by the Petitioners to show these different optimization criteria.
`Patent Owner argues that it is decentralized and again that is directly
`contrary to what Schwartz actually states. This is the in first white box there
`on slide 23, Schwartz discloses that algorithm A “lends itself to centralized
`computation.”
`And actually if we flip to Patent Owner slide 33 and the third bullet,
`what Patent Owner says there - - and we’ll get there in second, there we go -
`- second sentence, thus if centralized algorithm A. So even Patent Owner
`agrees, at least in some parts of their argument, in the third bullet second
`sentence that algorithm A is in fact centralized. If there aren’t any further
`questions on that limitation I’ll move to the next one of adding headers. So
`this is on slide 31, claims 5 and 10, recite limitations relating to adding
`specific types of headers to a packet as it comes in from the second network
`- -
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`JUDGE GIANNETTI: I’m sorry, what slide was that?
`MR. DAVIS: Oh, 31.
`JUDGE GIANNETTI: 31.
`MR. DAVIS: We just skipped a couple, Your Honor.
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`JUDGE GIANNETTI: I have it.
`
`MR. DAVIS: Okay, thank you. So claims 5 and 10 recite 2 different
`items that need to be included in the header as it comes in from the second
`network into the first network. One as a data transmission path to a client of
`the first network, which is also called the reverse link in claim 10, and the
`second is an indicator packet type. And we’ll address each of those in turn.
`With respect to the first type of information that needs to be included,
`Petitioner has no objection to applying Patent Owner’s construction for
`purposes to these proceedings; it doesn’t make a difference here in the actual
`outcome for the terms reverse link. It’s undisputed that the route is included
`in the header of the packet as it is sent from the station to the individual
`nodes, that’s also reflected in figure 3 shown on slide 31. And it’s also
`described further in Burchfiel, at page 250 stating expressly that the route for
`that packet is included when it’s sent to a particular destination. And as Mr.
`Geier then explained this is shown at the bottom of slide 31, a packet routed
`from the station to a packet radio network includes a route that is the reverse
`of the route, used the label that repeater or provide a connection to the
`repeater or the terminal. Which, of course, only makes sense because as we
`discussed earlier these connections are bi-directional; they go in both
`directions.
`Therefore it is the link coming from the station to the client as the
`reverse of the link from the client back up to the station. Turning to slide 33,
`and that’s the second type of information that needs to be included in the
`header, is an indicator of a data packet type. What Burchfiel discloses is that
`there’s a function field included in Burchfiel headers that provides an
`address within the packet radio unit that does one of three things: it either
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`selects the control process, or the debugging process, or the measurement
`process this. That address is an indicator that the packet that it’s associated
`with - - that’s carrying that address is of a specific type, it’s either targeting
`towards a control process, debugging process, or a measurement process. Or
`if it doesn’t have an address, as Mr. Geier testified then it’s a packet that’s
`not intended for anyone of those particular processes in either, even the field
`itself is indication the data packet type.
`And again as more of a belt and suspenders here on slide 35,
`Petitioners have also put forth the Heart reference, which provides a
`disclosure of another example of a header that includes the data packet type.
`That’s shown there in figure 5 of Heart reflecting a number of different bits
`that could be used to indicate the data packet type depending on what those
`bits are set to. And just generally this is a well-known concept in this field
`of including some type of indicator in the data packet typ. As Mr. Geier
`testified, it would have been obvious to include that in implementing
`Burchfiel, Mr. Geier identifies the reason for that because it would be
`advantageous to the recipient. The packet they would then know what the
`particular data type is, whether it has a particular priority, if it’s an
`acknowledgement packet, what have you.
`If there aren’t any further questions on that limitation, I’ll move on to
`the third dispute, limitation of a map. Maintaining a map of data packet
`transmission paths of a plurality of clients. Mr. Batchelder addresses the
`appropriate construction for the terms earlier and we’ve already, frankly,
`discussed a lot of this in the beginning of our discussion. The connection
`table stores all the connections within the Burchfiel’s network. Those
`connections are maintained by Burchfiel’s station and updated to identify
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`minimum distance routes as we previously discussed. So for each client the
`connection table maps a path for a client back to the server again meeting
`the limitation that’s in dispute here.
`And if there aren’t any further questions on that I’ll move the fourth
`disputed limitations, which is on slide 42 and just that the second network
`needs to be a TCP/IP protocol network. It’s a fairly straightforward issue,
`the second network relied on bi-petitioners. The ARPANET back when
`Burchfiel was published, ARPANET wasn’t using TCP/IP at that time, later
`on in 1983 ARPANET switched over to TCP/IP. Such that a person of
`ordinary skill looking back in time at Burchfiel, would have understood that
`the second network ARPANET is using TCP/IP. And, therefore at
`minimum it would have been obvious to do so on our next encyclopedia,
`sort of historically record these facts, and thus if it’s necessary to combine a
`reference to apply this teaching online encyclopedia as it - -
`Unless there are any other further questions, I’ll see the podium to Mr.
`Batchelder to quickly address secondary considerations.
`
`JUDGE GIANNETTI: You are at the 20-minute mark.
`
`MR. DAVIS: Thank you.
`
`MR. BATCHELDER: Thank you. In the interest of time, Your
`Honor, I will simply say for now and secondary considerations that the
`requirements for proving them have been black letter law for decades now.
`And specifically, you need to do three things: you need to focus on
`something that is claimed, you need to focus on something that is novel, so
`you can’t point to something claimed if it was in the prior art, and having
`pointed the claim novel thing, you have to demonstrate indexes between that
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`claim novel thing and the secondary consideration you’re pointing to, like
`the long felt need or the fault of others.
`And Patent Owner here has failed on all three fronts, they’ve pointed
`to things that aren’t in the claims, they point to things that we’ve established
`in the prior art, and they’ve utterly failed to show indexes between what
`their pointing to and what they say was the long felt need or the failure of
`others. So for all three of those reasons the arguments fall short. The black
`letter law that we pointed to was laid out in many fellow circuit cases but the
`couple that we laid out in the briefer as examples: Ormco v. Align Case
`which is 463 F3d 1299 (2006) and the jump cite there is 1313 and we also
`pointed to the In re GPAC Case which is at 57 F3d 1573 and that’s a Federal
`Circuit 1995 case and that jump cite there is 1580. Thank you.
`(inaudible)
`
`
`JUDGE GIANNETTI: Dr. Gonzalves, you may start whenever you’re
`ready.
`
`DR. GONSALVES: May it please the Board. My name is Dr.
`Gregory Gonzalves and it is my honor and privilege to represent the IP Co.;
`a company that was founded by David Petit, a Native American.
`
`The first topic that will discuss is the claim construction of the
`limitation that I’ll read as follows, the digital controller changes the
`transmission paths of clients to optimize the transmission paths including
`changing the transmission paths from the client to the gateway. And this is
`recited in independent claim 1, it’s actually a direct quote from independent
`claim 1 and it’s similarly recited in independent claim 10. So while I’m
`speaking you may find it beneficial to look at exhibit 1001, the claim
`language of claim 1 and 10 which of the 516 patent. Both the Petitioner and
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`Patent Owner agree that the 516 patent is already expired accordingly the
`claim should be construed pursuant to the principles set forth by the court in
`Phillips and the PTO has expressly acknowledged that the principles set
`forth in Phillips will result in narrower claim constructions. And this is
`quote from MPEP 2666. 01 “once the patent expires a narrow claim
`construction is applied.” According to - -
`
`JUDGE GIANNETTI: That’s for patent examination correct? The
`MPEP is the guide for patent examiners?
`
`DR. GONSALVES: Correct, but I think in this - - given that the
`patent has expired in this forum, the same principles would be used in order
`to construe the claims of the 516 patent. The claim language itself of claim
`1 of this phrase claim limitation that I just read requires the controller within
`the server to change a transmission pat