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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ZSCALER, INC.,
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2017-01342
`Patent 8,661,498 B2
`____________
`
`Record of Oral Hearing
`Held: September 6, 2018
`____________
`
`
`
`
`Before JEFFREY S. SMITH, DANIEL N. FISHMAN, and
`STACEY G. WHITE, Administrative Patent Judges.
`
`
`
`
`Case IPR2017-01342
`Patent 8,661,498 B2
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`
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`LEO L. LAM, ESQUIRE
`JUSTINA SESSIONS, ESQUIRE
`Van Nest & Peters
`633 Battery Street
`San Francisco, California 94111-1809
`415-391-5400
`llam@keker.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`CHAD C. WALTERS, ESQUIRE
`HARRISON RICH, ESQUIRE
`KURT PANKRATZ, ESQUIRE
`Baker Botts, LLP
`2001 Ross Avenue
`Dallas, Texas 75201-2980
`214-953-6511
`chad.walters@bakerbotts.com
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`
`September 6, 2018, commencing at 9:17 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
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`Case IPR2017-01342
`Patent 8,661,498 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE SMITH: Welcome to the Patent Trial and Appeal Board. We
`are here for IPR2017-01342. This is the case where Zscaler is the Petitioner,
`and Symantec is the Patent Owner.
`Petitioner, will you step up to the podium and make your appearance?
`MR. LAM: Judge Smith, Judge White, Judge Fishman; good
`morning, Your Honors. Leo Lam from Keker Van Nest & Peters, on behalf
`of Petitioner, Zscaler. With me is Justina Sessions, who will give Zscaler's
`presentation, Your Honors.
`Unless Your Honors have a different preference, Ms. Sessions will
`proceed to give Petitioner's presentation, and in the context of that
`presentation address at least each of the enumerated issues articulated by the
`Board's order dated September 4th, Paper number 33, in the context of our
`presentation.
`JUDGE SMITH: Okay. Thank you. Patent Owner, will you step up
`to the podium and make your appearance?
`MR. WALTERS: Good morning, Your Honors. Chad Walters of
`Baker Botts, for Patent Owner Symantec; and with me are my colleagues,
`Harrison Rich and Kurt Pankratz. Thank you.
`JUDGE SMITH: Thank you. Petitioner, you'll present your case-in-
`chief. Patent Owner, you'll have a chance to rebut. Petitioner, you may
`reserve time for rebuttal if you choose. And then Patent Owner, I see you
`have motion pending, you may reserve time for rebuttal for your motion if
`you choose to do so.
`Petitioner, do you wish to reserve time for rebuttal?
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`MS. SESSIONS: Yes, Your Honor. I would ask that I proceed
`through the presentation and then whatever time I have left over at the end,
`pending Your Honors' questions, I would reserve for rebuttal.
`JUDGE SMITH: Okay. And Patent Owner, do you wish to reserve
`time for rebuttal for your motion?
`MR. WALTERS: Your Honor, I'm thinking 15 minutes. If I could
`get just a warning with 15 minutes left, and I'll see where I'm at, at that
`point.
`JUDGE SMITH: Okay. Thank you. Petitioner, you have 60 minutes.
`You may begin when you're ready.
`MS. SESSIONS: Thank you, Your Honor. Good morning, Judge
`Smith, Judge White, Judge Fishman. Justina Sessions of Keker Van Nest &
`Peters, on behalf the Petitioner, Zscaler.
`Your Honors, I think we all understand that this case is a little bit
`unusual. Initially, the Board had found that Zscaler established a reasonable
`likelihood that claims 1 to 13, 28 and 39 of the 498 Patent were unpatentable
`as anticipated by the Peled reference, and instituted trial on those claims, and
`declined to institute on additional claims challenged in the petition.
`Rather than proceed in the face of these arguments Symantec elected
`to statutorily disclaim all of those originally instituted claims. That would
`have ended the proceedings but the SAS decision came down after
`Symantec's disclaimer, but before the proceedings were terminated; and the
`Board then instituted a review of the remaining challenged claims in the
`petition.
`So, we are here in a somewhat strange posture where there's been a
`disclaimer of some of the claims including all of the independent claims in
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`the challenged patent, and Zscaler would argue that Symantec has therefore
`effectively conceded that all of the elements of the independent claims of the
`498 Patent are anticipated by the Peled reference.
`But one of the questions now before the Board is whether the
`remaining dependent claims are also invalid in light of the Peled reference,
`or the combination of the Peled and Liddy references.
`On these dependent claims Symantec would like to obtain victory by
`default, their position is, since the Board initially found the explanations in
`Zscaler's petition lacking for these dependent claims, that there's nothing
`more to be done. But the evidence that Zscaler relies on to show invalidity
`and unpatentability of these new dependent claims was all in the petition.
`And the Federal Circuit's recent Ericsson case confirms: that while
`adding entirely new evidence a new argument would be improper, a
`petitioner may expand on the contentions that were made in the initial
`petition.
`So today I intend to go through these claims -- Excuse me?
`JUDGE SMITH: I'm sorry. Can you repeat what you just said?
`MS. SESSIONS: About the Ericsson case?
`JUDGE SMITH: About expanding, yeah.
`MS. SESSIONS: Yes, Your Honor, so the Federal Circuit's recent
`Ericsson case.
`JUDGE SMITH: Oh. I see.
`MS. SESSIONS: Distinguished between improper addition of new
`evidence, and expansion upon arguments that were made in the petition.
`JUDGE SMITH: Okay.
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`MS. SESSIONS: And Federal Circuit noted that while addition of
`entirely new evidence is improper that a petitioner may expand on
`propositions that follow from what was presented in the petition.
`JUDGE SMITH: Okay.
`MS. SESSIONS: So, for my presentation today I intend to go through
`each of the claims still at issue in this IPR, and show how the evidence cited
`in Zscaler's petition, the Peled reference, or the combination of Peled and
`Liddy, anticipate or render obvious all of the currently instituted claims.
`Before I get into the merits of the presentation, I wanted to briefly
`address the four points that Your Honors asked the parties to be prepared to
`discuss during this hearing.
`The first is the status of claims 1 to 13, 28 and 39, in view of the
`statutory disclaimer; 1, 28 and 39 are independent claims; 2 and 13 are
`dependent claims.
`I will get into the details when I discuss the elements of the
`independent claims, but suffice it to say, it is Zscaler's position that that
`statutory disclaimer, must be construed as a request for adverse judgment,
`and that the Board should enter judgment in Zscaler's favor on those claims.
`The second issue that Your Honors asked us to be prepared to discuss
`was the party's mutual request to terminate the proceeding in view of this
`statutory disclaimer. We had both asked that the proceeding be terminated,
`but before the proceeding was terminated, the SAS decision came down.
`When the Board issued its second institution decision, I'll say the
`post-SAS institution decision, we reached out to Counsel for the Patent
`Owner, and asked if they would either, disclaim the newly-instituted claims,
`or agree not to assert those claims against Zscaler in District Court litigation,
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`and we've renewed that request a few days ago, didn’t hear back from them,
`so I can only assume that their position is, no, that they are not willing to do
`that, which leaves us with no choice but to proceed on these claims since we
`are facing -- Zscaler is facing infringement allegations in District Court
`based on these claims.
`The third issue was the Patent Owner's motion to strike Petitioner's
`Supplemental Reply. I think the issues involved in the motion to strike are
`intertwined with the merits of the dependent claims that are currently
`instituted.
`JUDGE FISHMAN: Counsel, this is Judge Fishman. Can you clarify
`for me, even if we do not enter "adverse judgment" these claims no longer
`exist by virtue of this disclaimer. There was a disclaimer filed, I believe you
`verified that, but does it make a difference from your perspective whether
`we simply ignore those claims as nonexistent or enter an adverse judgment?
`MS. SESSIONS: Yes, Your Honor. I believe there is a difference
`because an adverse judgment has collateral effect outside of just this IPR,
`and there are consequences to filing a statutory disclaimer once an IPR has
`been instituted, and because it's construed as a request for adverse judgment,
`for instance, the Patent Owner is precluded from taking certain actions that
`would be inconsistent with that disclaimer and the request for adverse
`judgment in the IPR.
`And since those claims are still a part of this trial, because IPR was
`instituted on those claims, we believe they need to be disposed of in this
`proceeding.
`JUDGE SMITH: When you say it's considered a request for adverse
`judgment, where are you getting that from?
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`MS. SESSIONS: Yes, Your Honor. It is 37 C.F.R. Section 42.73(b),
`and which we've reproduced at slide number 5 of our presentation.
`JUDGE SMITH: I see.
`MS. SESSIONS: And that regulation states that cancellation or
`disclaimer of a claim such that the party has no remaining claim in the trial,
`is an action that is to be construed as a request for adverse judgment.
`At the time that Symantec filed their statutory disclaimer, they
`disclaimed all of the claims that existed in this trial at the time. So they
`cancelled all claims such that there was no remaining claim for trial at that
`time.
`
`JUDGE SMITH: But how would that apply -- I mean I think Patent
`Owners -- you understand what the Patent Owner's argument is, that there's
`still remaining claims in the trial according to Patent Owner?
`MS. SESSIONS: Your Honor, I'm actually not sure that I quite
`understand what the Patent Owner's argument is, because until we saw their
`slides for this --
`JUDGE SMITH: Let me put it to you this way, even without these
`claims now, there are still claims remaining in the trial, so why would this
`rule apply?
`MS. SESSIONS: Your Honor, because I think the rule should apply
`to the state of play at the time that the disclaimer is filed, that that's --
`JUDGE SMITH: Where are you getting that from?
`MS. SESSIONS: Your Honor, I think it's clear from the -- just from
`the text of the regulation, so a party may request adverse -- may request
`judgment against itself at any time during the proceedings. And an action
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`construed to be a request for that includes cancellation or disclaimer of all
`the claims in the trial, and that's exactly what they did.
`JUDGE SMITH: Is the effect of filing a disclaimer, does that have
`the effect of cancelling the claims?
`MS. SESSIONS: Yes, Your Honor, I believe that it does.
`JUDGE SMITH: So, these claims are cancelled, so whether we reach
`adverse judgment or not doesn’t impact whether the claims still exist or not.
`Is that right?
`MS. SESSIONS: Your Honor, I don't believe that the Board's entry of
`an adverse judgment has an effect on whether the claims are in existence,
`but the entry of judgment in an IPR does have other collateral consequences.
`And Your Honor, I think that --
`JUDGE SMITH: But I mean -- I guess the point is, if these claims are
`cancelled that has collateral consequences. The collateral consequences are
`already there because the claims are cancelled.
`MS. SESSIONS: There may be additional consequences to the entry
`of judgment --
`JUDGE SMITH: I mean, what consequences are there from adverse
`judgment that are not present from just cancelling the claim?
`MS. SESSIONS: For example, Your Honor, we have a pending
`District Court litigation going on, involving some of the same claims, and --
`JUDGE SMITH: But those claims are cancelled?
`MS. SESSIONS: Yes. But there are dependent claims that depend
`from the cancelled claims, and the fact that Symantec disclaimed these
`claims during IPR, we believe --
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`JUDGE SMITH: The independent claims? Can you be precise about
`which claim? When you say these claims can you --
`MS. SESSIONS: I'm sorry. So, in District Court litigation, Symantec
`is still asserting several dependent claims from the 498 Patent against
`Zscaler, and that includes some dependent claims that are in this IPR now,
`and some dependent claims that are not.
`JUDGE SMITH: I guess my point is, with respect to the claims that
`are cancelled; those claims are gone from everywhere, it that right? Or is
`that not right?
`MS. SESSIONS: That's correct, Your Honor. But I think I can
`maybe try to cut through this.
`JUDGE SMITH: Okay.
`MS. SESSIONS: What I'm trying to get at is: we brought the
`argument that the now disclaimed claims were invalid as anticipated in light
`of the Peled reference. A finding that those claims are in fact unpatentable
`in light of the Peled reference, which is what we believe we were entitled to,
`based on the institution of the original claims and Symantec's disclaimer,
`could have consequences for that District Court litigation. Because, for
`example, a court might decide that due to principles of collateral estoppel,
`that Symantec could not take up position inconsistent with that. They could
`not argue that those elements were not present in the prior art, for example.
`JUDGE SMITH: So you want us to reach on the merits whether the
`cancelled claims are patentable over prior art. Is that what you're asking for?
`MS. SESSIONS: I'm not asking you to reach it on the merits, I'm
`asking you to enter judgment against Symantec on those claims and the
`effect of that adverse judgment will be for the parties to litigate another day,
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`but we do believe that we are entitled to judgment on those claims since IPR
`was instituted on those claims.
`And, Your Honor, I understand, I think, a little bit of the confusion
`about entering adverse judgment on claims that, in some sense, no long
`exist, but that's exactly what 37 C.F.R. 42.73(b) directs. If a Patent Owner
`disclaims the claims that have instituted in an IPR, the Petitioner is entitled
`to adverse judgment, even though those claims, in some sense, no longer
`exist because they’ve been cancelled, the proceeding has to end with an
`adverse judgment.
`JUDGE SMITH: I mean, there's another Rule 107(e) that says that
`Patent Owner can disclaim some claims and still go forward with the trial, so
`why would the rule that you're pointing to apply more than this other rule
`that says: some claims can be disclaimed and trial can still go and it doesn’t
`say anything about entering any type of judgment one way or the other, it
`just says: Patent Owner can disclaim in that step without entry of any type of
`judgment. Why would we not apply it? Don't you think that rule seems to
`apply more than this (crosstalk)?
`MS. SESSIONS: I don't, respectfully, Your Honor, because at the
`time that Symantec took the action, at the time that they filed the disclaimer
`it was the disclaimer of all claims that had been instituted in the trial, and
`that's the action that we are looking at. It wasn’t a disclaimer of some
`claims; it was a disclaimer of all.
`JUDGE SMITH: And what cases from the Federal Circuit support
`your interpretation of this rule?
`MS. SESSIONS: Your Honor, I can't point you to a case, I'm actually
`not aware of another situation where this would have come up. This seems
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`like somewhat of an anomaly given the timing of this case, and the SAS
`decision coming down, because I'm not aware of another case in which
`claims were subsequently added to a previously instituted IPR.
`JUDGE SMITH: Are you aware of any case that addresses either of
`these rules; the rule that you're pointing to, or Rule 107?
`MS. SESSIONS: I believe the Arthrex decision that we cited in our
`papers discusses 37 C.F.R. 42.73(b), and in fact interprets a pre-institution
`disclaimer by a patent owner, as a request for adverse judgment. Based on
`some of the reasons behind the adverse judgment rule, including the need for
`finality and repose, and the fact that the -- in that case the Petitioner had
`expended resources to file a petition on the claims, and so then --
`JUDGE FISHMAN: Counsel, this is Judge Fishman. In that case
`didn’t the Patent Owner disclaim all claims?
`MS. SESSIONS: I believe that they did. Yes, Your Honor. But I
`think the reasoning of that case, and the reasons for the adverse judgment
`rule on the desire for finality would still apply by analogy here. And in this
`case we have not only the Petitioner who expended resources to file a
`petition but, Your Honors, the Board expended time and resources to issue
`an institution decision and go through that trouble, and it was only after that
`that Symantec decided to disclaim what was then all of the instituted claims.
`JUDGE SMITH: In Arthrex, can you tell me, weren't there three
`different opinions in that case? Wasn’t there a majority opinion that actually
`did apply to 42.73(b), but then there were -- there was conferring opinion,
`and then there was a dissenting opinion that would emphasize rule 42.107.
`Isn't that right?
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`MS. SESSIONS: Your Honor, I don't have that at my fingertips, I'm
`not sure about that, I'm sure you're correct --
`JUDGE SMITH: I mean, it looks like the case that you're saying to
`support was applying Rule 73(b), that case that you're citing, it was three-
`judge panel, with three different opinions, or two of the judges on the panel,
`pointed to Rule 107, and (inaudible) Rule 73(b). Can you speak to that at
`all?
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`MS. SESSIONS: Your Honor, I can try to review it while I'm sitting
`down, and do that.
`JUDGE SMITH: Okay. Okay.
`MS. SESSIONS: I don't have that at my fingertips now, so I
`apologize. But I don't believe that that decision is the only reason that we
`are entitled to adverse judgment here. As I said, I think from the language of
`the regulation itself, the action that Symantec took at the time is to be
`construed as a request for adverse judgment.
`JUDGE WHITE: Counselor, it seems like one of the oddities about
`the situation is just the timing of SAS, and the position that that put us in.
`And, based on what the Supreme Court said, it was improper for us not to
`have instituted on everything. And that being the case, are we now in a
`situation, we need to make sure that the improper non-institution of these
`claims has the least amount of impact at this point as possible, because if we
`go with an adverse judgment it seems like that has more impact, and that
`impact is based on the fact that we improperly did not institute on certain
`claims.
`Because if we had instituted on everything and they just disclaimed a
`set, I think there would be no argument that 107 would be the rule; and since
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`that's the situation we are in with the action that put them in this position that
`was based on something that we did that the Supreme Court said was
`improper. Does that not change what our obligation is?
`MS. SESSIONS: Your Honor, I think that it's a very good question,
`and I think the answer is no, because we don't know what the Patent Owner
`would have done if the Board had decided to institute on all challenged
`claims. They might have decided to do the same thing and disclaim all of
`the challenged claims.
`You know, we just don't know, and we have to look at what they did
`and react accordingly, and I think Your Honors did rectify the -- if we can
`call it problem, created by partial institution, by instituting on the remainder
`of the challenged claims, and those are going to be dealt with, you know, on
`the merits in Your Honors' decision.
`But we are still left with a group of claims upon which IPR was
`instituted, that are in this trial, that have been disclaimed, and for which the
`Patent Owner has made no argument of patentability. So those need to be
`dealt with somehow, and I think the most appropriate and most efficient way
`to deal with those claims is to enter adverse judgment -- enter judgment
`against Symantec on those claims, because Symantec did elect to disclaim
`them while they were the only ones in IPR.
`JUDGE FISHMAN: Counsel, this is Judge Fishman. Technicality
`perhaps, but can you address this. Your request for adverse judgment should
`have been in the form of a motion, motions require pre-authorization.
`Instead, the request for adverse judgment was buried inside a reply. Can you
`address that? Why should we even consider your request for adverse
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`judgment when it was not properly submitted as a motion, a preauthorized
`motion?
`MS. SESSIONS: Your Honor, I apologize for that oversight. I didn’t
`-- obviously did not understand that that would have been the correct way to
`submit that request, and we'd be happy to make it in the form of a motion, if
`that were authorized. But I don't think that a motion was strictly necessary
`because Symantec filed their disclaimer, and that action alone is to be
`construed as a request for adverse judgment.
`So, it was first Symantec that took the action to be construed as a
`request for adverse judgment and then we attempting, you know, belt and
`suspenders, responded to that by pointing out that it was such a request and
`asking that judgment be entered.
`But I'm not sure that we needed to ask for that relief, because I think
`that what Symantec did on its own should have triggered the entry of
`adverse judgment.
`JUDGE FISHMAN: Okay. Thank you.
`MS. SESSIONS: Your Honors, I will move to the merits of the
`claims, unless you have any further questions on the adverse judgment issue.
`JUDGE SMITH: No.
`MS. SESSIONS: So, I'm going to start, Your Honors, with the
`elements of the independent claims in the 498 Patent, and I'm discussing the
`independent claims because although they are not at issue now, all of the
`dependent claims that are currently instituted and for which we need to
`discuss the merits, depend from these claims.
`The first issue with respect -- and really the only issue -- with respect
`to the merits of the independent claims is whether the Peled reference
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`discloses the claimed abstract data structure. And this was the fourth issue
`that Your Honors had asked us to discuss, was the proper interpretation of
`the abstract data structure term. Now, this term is found in all of the
`independent claims of the patent, and I've reproduced here on slide number
`6, the relevant portion of claim number one.
`JUDGE SMITH: Okay. Sorry, to interrupt.
`MS. SESSIONS: Yes, sir.
`JUDGE SMITH: Are you going to talk about the third point, the
`motion to strike the reply, are you going to talk about that later?
`MS. SESSIONS: Yes, Your Honor.
`JUDGE SMITH: Or do you want to talk about this first?
`MS. SESSIONS: Yes, I'm going to.
`JUDGE SMITH: Okay. Okay. I just wanted to make sure.
`MS. SESSIONS: Yes. The motion to strike does not apply to
`arguments relating to whether Peled discloses an abstract data structure.
`JUDGE SMITH: Okay.
`MS. SESSIONS: But I will address the motion to strike when we talk
`about the dependent claim.
`JUDGE SMITH: Okay.
`MS. SESSIONS: So, the abstract -- claim 1 claims a method
`including identifying an abstract data structure, and performing content
`searches on messages using data abstract data structure. The abstract data
`structure is derived from preselected data to be protected from traveling
`across a network, and then messages that are transmitted across the network
`are searched to see if they contain this preselected data, and the searches are
`done using the abstract data structure.
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`And critically here, the abstract data structure is, "not revealing data
`elements of the preselected data to be protected." Now, in the Petition
`Zscaler had argued that based on the prosecution history and abstract data
`structure that did not reveal data elements of the preselected data, was one
`that did not contain fragments or copies of the underlying data.
`Symantec disagreed, and they argued that no construction of this term
`was necessary, that it was clear on its face, and should not be rewritten. The
`Board essentially agreed with Symantec's position, and in the initial
`institution decision interpreted abstract data structure to mean any data
`structure that is derived from preselected data to be protected from traveling
`across the network and does not reveal data elements of the preselected data
`to be protected.
`We now have a dispute about whether the Peled reference discloses an
`abstract data structure that does not reveal. Symantec now claims that the
`Peled prior art reference does not disclose this limitation, precisely because
`they say: well, the database might include copies of the underlying data, as
`well as the signatures that are described as in that database.
`So, in other words, they are arguing now about exactly the copies or
`fragments that they said didn’t belong in the construction initially. Now,
`this position requires the Board to accept three contentions, we believe none
`of which hold water.
`First, the Board would have to decide that the plain meaning of not
`revealing data elements of preselected data to be protected means exactly
`what Symantec said it didn’t mean, when they responded to the petition.
`Second, the Board would have to conclude that every independent
`claim of the 498 Patent does not include, does not claim embodiments that
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`are described in the specification, specifically embodiments in which copies
`or fragments of the underlying data is included in the abstract data structure.
`And third, the Board would have to conclude that the Peled reference
`does in fact include copies of the underlying data as well as signatures in its
`database, even though Peled doesn’t ever say that anything but signatures
`are included in its database.
`JUDGE SMITH: You have 30 minutes remaining.
`MS. SESSIONS: Thank you, Your Honor. So, I'm going to take the
`third issue first, because I think that one can be dispositive and could avoid
`any further claim construction issues, because if the Peled reference
`discloses a database that does not include the underlying data, then the outer
`limits of not revealing are really not relevant here.
`So, the Peled reference, just as a refresher, is a system and method for
`monitoring unauthorized transport of digital content. And as the abstract
`describes, Peled has four key elements. It has a transport data monitor that
`monitors data being transported past that monitor.
`JUDGE FISHMAN: Excuse me, Counsel. I'm following along with
`your slides, but please make sure you reference a slide number, Judge White
`and I can't see what's on your projector.
`MS. SESSIONS: Oh. My apologies, Your Honors, I'm on slide 8
`now. So, Peled has a transport data monitor, it has a signature extractor that
`extracts a derivation of the data that's being monitored, it has a database of
`pre-obtained signatures of content whose movement it is desired to monitor.
`Your Honors, I apologize there's a typo on my slide. It says
`"designed", but that should be "desired".
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`And then further it has a comparator for comparing said derivation
`with the pre-obtained signatures. Now, Symantec doesn’t dispute at this
`point that Peled discloses all of the elements of the independent claims other
`than the abstract data structure.
`Your Honors, I'm going to skip to slide 11 in the interest of time. So
`the question here is whether Peled's signature database does not reveal data
`elements of the underlying data. And here on slide 11, we've provided three
`examples of Peled's description of this signature database. And by the way,
`as a refresher, the signatures in the database are hashes of data, and those
`hashes which are, hashes are generally known invertible, which means that
`they can't easily be reverse-engineered to recreate the data from which they
`were created.
`So, the question -- and I don't think there's really a dispute about
`whether the signatures themselves reveal, but the question is: is the database
`that includes these signatures an abstract data structure that does not reveal
`the underlying data?
`When Peled describes the database, Peled describes it as a database of
`signatures, at the first excerpt, column 3, lines 25 to 28, it is described as a
`database of signatures of confidential, copyrighted, illegal or otherwise
`restricted materials; it's also described as a database of pre-obtained
`signatures, at column 7, lines 46 to 47; and in Figure 1, a database of binary
`signatures of the illegal contents.
`So the anticipation in question is whether a person of ordinary skill
`reading these disclosures would understand whether -- that the database does
`not reveal data elements of the underlying data.
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`The description “database of signatures” demonstrates that the
`database contains signatures. There is no description of the database
`containing anything other than signatures, for example, the underlying data.
`Now in a different situation, one might have a reason to infer from
`other parts of Peled that there were other items in the database, but in this
`case, in Peled, there's no reason to store anything but signatures in the
`database, once the signatures are generated from the underlying content,
`Peled has no more use for the underlying content. There's no comparison of
`the content itself to the traffic that's being monitored.
`So, there's no reason that a person of ordinary skill would read into
`Peled's description, “database of signatures,” other things that are not
`described there.
`Now, Symantec argues that claim 115 is a disclosure -- claim 115 of
`Peled, and I'm on slide 12, is a disclosure of a database containing both
`signatures and content.
`As Your Honors recognized in the initial institution decision, claim
`115 discusses content being stored in a content database. Claim 1 does not
`refer to a content databa
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