Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper No. 32
`Entered: June 11, 2024
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`FLYPSI, INC.,
`Patent Owner.
`________________
`
`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`________________
`
`Record of Oral Hearing
`Held: May 7, 2024
`________________
`
`
`
`
`Before ROBERT J. WEINSCHENK, JAMES J. MAYBERRY, and
`MICHAEL T. CYGAN, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`Paper No. 32
`Entered: June 11, 2024
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`FLYPSI, INC.,
`Patent Owner.
`________________
`
`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`________________
`
`Record of Oral Hearing
`Held: May 7, 2024
`________________
`
`
`
`
`Before ROBERT J. WEINSCHENK, JAMES J. MAYBERRY, and
`MICHAEL T. CYGAN, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DANIEL ZEILBERGER, ESQ.
`NAVEEN MODI, ESQ.
`HOWARD HERR, ESQ.
`Paul Hastings LLP
`2050 M Street, NW
`Washington, DC 20036
`(202) 551-1993 (Zeilberger)
`danielzeilberger@paulhastings.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MATTHEW R. McCULLOUGH, ESQ.
`LOUIS L. CAMPBELL, ESQ.
`Winston & Strawn LLP
`255 Shoreline Drive
`Suite 520
`Redwood City, CA 94065
`(650) 858-6453 (McCullough)
`mrmccullough@winston.com
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, May 7,
`
`2024, commencing at 1:00 p.m. EDT, via Video-conference.
`
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`
`1:00 p.m.
`
`JUDGE WEINSCHENK: Good afternoon, everyone. This is an oral
`hearing for IPR2023-357, -358, -359, -360, and -361. I'm
`Judge Weinschenk. With me today are Judge Mayberry and Judge Cygan.
`Let's start with some appearances. Who do we have today for
`Petitioner?
`MR. ZEILBERGER: Good afternoon, Your Honor. This is Daniel
`Zeilberger on behalf of Petitioner. With me today is lead counsel Naveen
`Modi, as well as Howard Herr.
`JUDGE WEINSCHENK: All right. Mr. Zeilberger, will you be
`doing the speaking today?
`MR. ZEILBERGER: Yes, Your Honor.
`JUDGE WEINSCHENK: Great. And who do we have for Patent
`Owner today?
`MR. McCULLOUGH: Good afternoon. This is Matt McCullough for
`Patent Owner. I will be presenting today, and with me is lead counsel Louis
`Campbell.
`JUDGE WEINSCHENK: Great. Thank you, Mr. McCullough.
`Just a few preliminary matters before we get started. First of all, I
`know we emailed you earlier with the potential for possibly delaying the
`hearing today. We just wanted to thank everyone for their willingness to be
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`flexible and accommodate the delay. It turns out we didn't need to, but we
`do appreciate your flexibility on that.
`As always, our primary concern here is your right to be heard. Since
`this is a virtual hearing, if you have any technical difficulties at any point,
`please let us know. You can try to let one of the judges know, or if you're
`unable to talk to us, please reach out to the team member who sent you the
`connection information today, and they should be able to help you.
`Please remember to try to mute your mic when you're not speaking so
`that we don't get any background noise. Also, please try to identify yourself
`whenever you start speaking again. That helps the court reporter to keep a
`clear record.
`As you know, we have all the papers, exhibits, and demonstratives,
`but when you're referring them, please use page numbers or slide numbers as
`appropriate so that we can follow along as well.
`There is a public line today. I don't believe that there's any
`confidential information at issue in this case, but if for some reason you
`think something has come up that is confidential or otherwise should not be
`heard by the public, please let us know, and we can discuss that offline.
`As you know from our order, each side will have 120 minutes to
`present today. Petitioner may reserve some time for rebuttal, and Patent
`Owner some time for surrebuttal.
`I'll pause here for a second. Any questions or concerns before we
`start, Mr. Zeilberger?
`MR. ZEILBERGER: No, Your Honor. No questions.
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`
`JUDGE WEINSCHENK: Anything from your end, Mr. McCullough?
`MR. McCULLOUGH: No, Your Honor.
`JUDGE WEINSCHENK: All right. Well, Mr. Zeilberger, you can
`start when you're ready, just please let me know how much time you would
`like to reserve for rebuttal. I will endeavor to give you about a five-minute
`warning before your primary time is up. Sometimes I miss that by a little of
`time if we're in the middle of questioning, but I'll try to give you a warning.
`MR. ZEILBERGER: Thank you, Your Honor. With your
`permission, I'd like to reserve 30 minutes for rebuttal. I will note, consistent
`with the email we sent, we do anticipate being able to finish our opening
`presentation and rebuttal within 90 minutes, but I'll defer to you on how you
`want to account for the time.
`JUDGE WEINSCHENK: Okay. Well, I think our order said 120
`minutes, so if we need it, great, but if we don't, that's also fine. So, as much
`time as you need, we'll work with it.
`MR. ZEILBERGER: Thank you, Your Honor. And with your
`permission, may I present our -- share the slides on the Webex?
`JUDGE WEINSCHENK: That's fine.
`MR. ZEILBERGER: Thank you. May it please the Board, today's
`hearing involves five patents with overlapping issues. The '585, '094, and
`'554 patents include claims that are generally directed to an outgoing call
`from a mobile device, and the '770 and '105 patents include claims that are
`generally directed to an incoming call.
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`
`At their core, however, all five of the challenged patents are directed
`to a system that allows a mobile device to have both a primary and
`secondary telephone number. And the Backhaus reference, at issue in all of
`the grounds of unpatentability, across all five of the proceedings, teaches the
`same overall arrangement.
`I'll proceed to slide 30. On slide 30, we have Figure 1 of Backhaus.
`Backhaus describes a system that uses what it calls a second line service
`platform, also called an SLS platform, which you can see in pink on the
`right-hand side of the figure. The SLS platform allows those who subscribe
`to its services to have secondary phone numbers, also called SLS numbers,
`which they may wish to use, for example, for a side business or personal
`calls.
`
`Backhaus describes various ways of routing calls between a
`telecommunication device that subscribes to the SLS platform, which
`Backhaus frequently refers to as a subscriber TD, and the third-party device,
`which may or may not also be a subscriber to the SLS platform.
`For example, Backhaus describes how calls from a third-party device
`to a subscribers secondary SLS phone number are automatically routed to
`the SLS platform and then forwarded to the subscriber's device. And
`Backhaus also describes how subscriber device can call a third party with
`their SLS number by calling a special relationship number which routes calls
`to the SLS platform, which then forwards the calls to the third party's device.
`Let's proceed to slide 32. On slide 32, we have Claim 1 of the '585
`patent. Claim 1 requires transmitting information that indicates an access
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`telephone number to the mobile device via a data channel. We address this
`limitation in our petition in two ways, that which we coined the first way and
`the second way.
`For the first way, when a third party calls the subscriber's device, a
`relationship number which corresponds to the claimed access telephone
`number is transmitted by the SLS platform. And for the second way, when a
`subscriber calls a third party but there is not yet a relationship number
`assigned, the relationship number will be assigned by the SLS platform and
`transmitted back to the subscriber's device.
`Because the second way was the basis for institution, I plan to focus
`on that but will also touch on the first way. We turn to slide 33.
`There is no dispute in this proceeding that Backhaus's relationship
`number is an access telephone number. And we can see, at paragraph 49 of
`Backhaus, that the relationship number is indeed used to access the SLS
`platform.
`Turn to slide 34. We have an excerpt of paragraph 71 of Backhaus,
`where Backhaus begins to describe how the relationship number is indeed
`transmitted via a data channel. Here, we can see that the SLS module of the
`subscriber's device submits a request for a relationship number to the SLS
`platform.
`Then, turning to slide 35, at paragraph 72, Backhaus begins to
`describe various ways that the SLS module of the subscriber device and the
`SLS platform may communicate. For instance, at paragraph 72, Backhaus
`explains that a session-based protocol may be used to, quote, to obtain a
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`relationship number. And I think that's important to remember there. It
`specifically calls out using this to obtain a relationship number.
`Turn to slide 36.
`JUDGE WEINSCHENK: Mr. Zeilberger?
`MR. ZEILBERGER: Yes, Your Honor?
`JUDGE WEINSCHENK: This is Judge Weinschenk. Can you go
`back to that slide before we move on? So my question for you is did you
`rely on this USSD protocol that's mentioned in paragraph 72 of Backhaus as
`teaching the claimed data channel, or did you just rely on the IP channel in
`later paragraphs?
`MR. ZEILBERGER: We relied on Backhaus's description of all of
`the data channels, from paragraph 72 through I believe it's 74. We
`specifically identified an IP-based communication as an example that
`matches up precisely with what's described in the patents as an example of a
`data channel, but we certainly did also point to this as a broader teaching of
`a data channel as well.
`JUDGE WEINSCHENK: If you have it handy, could you tell me
`where in the petition you relied on the USSD channel as well?
`MR. ZEILBERGER: I believe it would be at pages 25 and 26 where
`we cited to paragraph 72. I can pull up our petition and give you a more
`precise -- so for example, Your Honor, at page -- toward the bottom of page
`25 of our petition, in the -357 proceeding, we say Backhaus discloses that
`TD 110 may communicate with SLS platform using various
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`protocol/mechanisms, e.g., an unstructured supplementary services data
`(USSD protocol).
`JUDGE WEINSCHENK: Okay. Thank you.
`MR. ZEILBERGER: Going forward to slide 36, Backhaus indeed also
`says that as an alternative or additional way of communicating, there are
`various other forms, including IP-based interactions, which are, again,
`indisputably data channels.
`If we turn to slide 37, this is why IP-based communications are
`indisputably data channels because the patents specifically call them out as
`the example of a data channel. You can see that at column 4, lines 19 to 26,
`and column 4, lines 49 to 54.
`Turning to slide 38, in paragraph 74 of Backhaus, we can see that the
`relationship number is indeed returned to the SLS module of the subscriber
`device.
`Now, if we -- turning to slide 39, what does Flyp argue? Flyp does
`not dispute that paragraphs 72 and 73 of Backhaus teach data protocols.
`Instead, it argues that Backhaus's paragraphs 72 and 73 never mention the
`relationship number, but that is simply not correct. We can see clearly, in
`paragraph 72 -- and I'll turn back to it for a second in slide 35 -- that
`Backhaus specifically says that this is done in order to obtain a relationship
`number.
`Turning to slide 40, I will, again, just briefly touch on the first way.
`Under the first way --
`JUDGE WEINSCHENK: Mr. Zeilberger?
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`
`MR. ZEILBERGER: Yes, Your Honor?
`JUDGE WEINSCHENK: This is Judge Weinschenk again. Sorry to
`interrupt, but before you move on to the first way, it looked like there was a
`dispute between the parties about the meaning of the term data channel or
`channel. It appears -- do we need to resolve that dispute with respect to the
`second way that Backhaus teaches this limitation, or is that claim
`construction not really at issue for the second way?
`MR. ZEILBERGER: It -- that claim construction would not be at
`issue for the second way, Your Honor. It's only a potential issue for the first
`way. To my knowledge, Flyp has not disputed that, for the second way, any
`of these protocols that we relied on are data channels.
`JUDGE WEINSCHENK: Thank you.
`MR. ZEILBERGER: For the first way, again, the Board doesn't need
`to reach this if it agrees with us on the second way, but I'll note that in
`paragraph 55, Backhaus discloses how the relationship number is included in
`a specially encoded message that is sent from the SLS platform 115 to the
`subscriber device. And the specially encoded message here is sent using a
`data channel for these two reasons: one, in Backhaus, a voice path is not
`connected until the subscriber actually answers the call. That's disclosed at
`paragraphs 52 and 56 of Backhaus.
`And then, just to briefly touch on the claim construction, if we turn to
`slide 16, the challenged patents are clear that a communication protocol is a
`voice channel, quote, when used to carry voice information, end quote.
`That's from column 4, lines 49 to 60. And in fact, Flyp's expert Dr. Akl, in
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`deposition, we asked him, so is it your opinion that regardless of whether
`you transmit voice traffic or data traffic, a cellular protocol would qualify as
`a voice channel? And even he qualified -- he said it does qualify as a voice
`channel when you're sending voice traffic, consistent with what the
`specification says.
`In addition, Backhaus also discloses that communication protocols,
`like an IP-based protocol, can be used to share information, like the
`relationship number, between the SLS platform and the SLS module, in
`paragraph 73. And it's our position that that teaching also applies to this
`disclosure of the specially encoded message that was sent between those two
`devices.
`I'll turn next to slide 41. Flyp also argues that the petition took
`inconsistent positions regarding the two channel limitations: the data channel
`and the second channel.
`Turning to slide 42, as we explained in our reply, Flyp only refers to
`issues that are implicated by the petition's first way when it makes this
`argument, and there is no dispute that in the second way, the data channel
`and the second channel were addressed in a consistent manner. So, like for
`the claim construction, if Your Honors agree with the second way, this
`would also be an issue that doesn't need to be reached.
`However, I will note that for the first way, they were addressed in an
`entirely consistent manner. We were clear that addressing the second
`channel, we were addressing data transmission in contrast to the voice
`channel where we were relying on voice traffic.
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
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`
`I'll turn next to slide 45. Flyp argues that the petition did not
`consistently address the switch limitations. And what this really comes
`down to is whether a switch associated with the SLS platform that receives a
`call is also used to connect the call.
`Turning to slide 46, first we --
`JUDGE WEINSCHENK: Mr. Zeilberger?
`MR. ZEILBERGER: Yes, Your Honor.
`JUDGE WEINSCHENK: This is Judge Weinschenk again. Can you
`go back one slide for me one more time? So do you agree with Patent
`Owner that the claims require that the same switch be used to perform all
`three of these limitations you've highlighted here on the slide, which I
`believe correspond to limitations 1.d, 1.e, and 1.f?
`MR. ZEILBERGER: I think it's correct that a particular switch that's
`the same one has to be involved in each of these steps. Where we would
`disagree is that Flyp has seemed to suggest that you can't have any other
`switches involved. And certainly, the claim does not preclude the
`involvement of other switches.
`JUDGE WEINSCHENK: Okay, but there has to be one switch -- at
`least one switch that is involved in all three limitations?
`MR. ZEILBERGER: Correct, Your Honor, that we -- we would agree
`with that interpretation, and that's, in our view, how we address the claim.
`JUDGE WEINSCHENK: Okay.
`MR. ZEILBERGER: In slide 46, we have paragraph 32 of Backhaus
`where Backhaus teaches that communications may occur over a PSTN,
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
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`which is public switch telephone network. And turning to slide 47, we again
`see in Figure 1 that Backhaus teaches that communication networks, in the
`yellow bubble, they can be PSTN.
`And turning to slide 48, as Dr. Lin explained in paragraph 79 of his
`declaration, in order for servers and telecommunication devices to interface
`with a PSTN, they need to connect to a local switch. And this is confirmed
`by the State of the Art. For example, turning to slide 49, we see, in Exhibit
`1007, which, for purposes of this ground, is a State of the Art reference, it's
`the Taylor reference. In Figure 1A, we see how the components, like the
`telephony server, connect to a particular local switch 12 within the PSTN.
`Turning to slide 50, similarly, in Exhibit 1011, which is a textbook
`describing a signal -- signaling system, it explains, at pages 6 and 7, how
`devices in a telecommunications network have a particular local switch with
`which they communicate. For example, it refers to a quote, subscriber's
`local switch, and quote, a called party's local switch.
`In view of these disclosures, Dr. Lin explained -- I'm on slide 51 -- in
`paragraph 79 of his declaration, consistent with how PSTNs operate, that the
`SLS platform in Backhaus would also communicate with a local switch in
`the PSTN network.
`JUDGE WEINSCHENK: Mr. Zeilberger?
`JUDGE CYGAN: Mr. Zeilberger?
`MR. ZEILBERGER: Yes, Your Honor.
`JUDGE CYGAN: Sorry. Judge Weinschenk, go ahead.
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
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`
`JUDGE WEINSCHENK: It seems that kind of the dispute here is
`how does the PSTN work. Does a server or other endpoint access the PSTN
`through a single local switch, or can it access it through multiple local
`switches? I understand your view, I think, to be that it accesses through a
`single local switch, it appears. What's the best evidence you have to show us
`that that's necessarily how the PSTN works, and it's not capable of doing
`what Patent Owner has suggested, which is accessing multiple local
`switches?
`MR. ZEILBERGER: Your Honor, I think the best evidence is the
`evidence I just showed, Exhibit 1007 and Exhibit 1011, where it shows that,
`at least in terms of a conventional PSTN, that is the way the PSTN devices
`were configured. There's no dispute in this proceeding, in fact, Flyp and its
`expert have conceded that both Backhaus and Exhibit 1007 are both directed
`to conventional PSTN. So there's no argument here that Backhaus somehow
`teaches some specialized or different, non-conventional PSTN.
`And another thing I would point here, and this is an issue that Flyp
`has raised, is that even if you were to kind of posit that you could have lots
`of different phone calls in lots of different instances, and maybe caller A has
`kind of one instance of the call where they access one switch and then kind
`of two days later, there's some other switch that's used, that wouldn't avoid
`anticipation here because the claims here are directed to a single, particular
`instance of a phone call -- of an incoming or outgoing call.
`And so, the -- going back to the question you asked me at the very
`beginning of this issue, in terms of whether it's the same switch, it is the
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`same switch but it's the same switch for a particular call. And so, even if it's
`possible to have more than one switch if you're looking at a plurality of calls
`involving different users, different subscribers, that wouldn't take this out of
`the scope of meeting the claim.
`JUDGE WEINSCHENK: I think what Petitioner has posited is that
`one way this -- that Backhaus could work is that the SLS platform server
`could receive a call from the mobile device, the subscriber, through one
`switch, and then connect it to the third party through a different local switch.
` Are you saying that's not possible; it's not a way that a conventional PSTN
`could work?
`MR. ZEILBERGER: It's not a way that a conventional PSTN would
`work, Your Honor. And Flyp has introduced no evidence to support that
`understanding. It only has its expert's conclusory say so that it's a
`possibility. Whether you could kind of configure a PSTN in a non-
`conventional way to do that, I don't know. There's no evidence of that. But
`here, the only evidence in the record is that, at least in terms of a
`conventional PSTN, that this is how they would operate.
`JUDGE WEINSCHENK: I guess I couldn't find anything from your
`expert saying that a conventional PSTN could not work that way. Is there a
`reason why you didn't have you expert to say it doesn't work that way?
`MR. ZEILBERGER: Respectfully, Your Honor, our expert did opine
`on the way that a conventional PSTN would work, and he didn't leave open
`to the possibility any other ways. In terms of kind of the strategic decisions
`on whether to submit a declaration in a reply, I don't know, Your Honor.
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`But again, we would submit that the only evidence currently in the
`proceeding, besides Flyp's conclusory expert testimony, is that when you're
`dealing with a conventional PSTN, this is the way they would operate.
`JUDGE WEINSCHENK: Judge Cygan, I know you cut -- I cut you
`off, so I'll -- I'll stop now.
`JUDGE CYGAN: I think you covered it, Judge Weinschenk. Thank
`
`you.
`
`MR. ZEILBERGER: I will note though -- and I think this is a good
`segue to the next issue -- even if Your Honors have any concern or question
`about whether it's possible that a PSTN could be configured in some other
`way, we do have our obviousness grounds that rely on the Taylor reference,
`where there really shouldn't be any question that it would be single switch.
`The Taylor reference here -- again, this is from the State of the Art reference
`that we used for the anticipation ground where we just relied on Backhaus,
`but we're relying on Taylor in a different way here.
`Here, in Taylor -- or we can see in slide 58 -- it teaches what it calls a
`PSTN interface that it uses to interface with the PSTN network. And if you
`turn to slide 59, in paragraph 8 of Taylor, it explains that the PSTN interface
`is used to receive and process calls pertaining to a predefined set of
`telephone numbers.
`And again, one thing that I think is important to recognize here is that
`the PSTN interface is part of the server. It's not part of the actual PSTN
`network. One of Flyp's arguments, again, is that the PSTN network has lots
`of switches, and different switches are needed to be involved or used at
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`different times. And while we very strongly disagree with Flyp on that
`issue, here the question is not about the switches in the PSTN network itself.
` Here, the question is about a separate switch that would be part of the
`server.
`Turning to slide 68, as Dr. Lin explained, a person of ordinary skill
`would have been motivated to include a PSTN interface, like in Taylor, in
`order to facilitate communications with the PSTN network. And that
`explanation was at paragraph 97 of his declaration. And then, at paragraph
`98, he explained how incorporating a PSTN interface would've simply been
`an application of known technologies, according to known methods, to yield
`predictable results.
`Turning to slide 61, Flyp argues, in its response, that a PSTN interface
`is not a switch, but that is incorrect. Flyp acknowledged in related district
`court proceedings -- here, we have an excerpt from Exhibit 1009 that a
`switch is, quote, a broad category of well-known structures. And it went on
`to say that it includes elements that, quote, facilitate connections between
`transmitters and receivers.
`And then, turning to slide 62, Flyp's expert, Dr. Akl, indicated in
`deposition that a switch is, quote, any combination of hardware and
`software, or hardware, or software that, quote, takes an input and provides
`an output. That's at Exhibit 1102, page 89, lines 13 to 19. And a PSTN
`interface certainly would qualify as a switch under that understanding.
`JUDGE MAYBERRY: Excuse me, Counsel. This is
`Judge Mayberry. Wouldn't you agree then that even the server itself, after it
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`passes through the interface, would be a switch because it takes an input and
`provides an output?
`MR. ZEILBERGER: I think an argument probably could be made
`along those lines, Your Honor. We didn't argue that in the petition, but I -- I
`don't think I would disagree.
`JUDGE MAYBERRY: So it seems to me that pretty much anything
`could be a switch, which is a little disturbing to me because it seems like the
`switch is -- probably should be something a little more specific.
`MR. ZEILBERGER: Your Honor, I wouldn't agree that anything
`could be a switch. Like for example, I think Flyp, in its -- I believe in its
`surreply, it had an example of a wire, and it said, like, literally a wire would
`be a switch under this understanding. And I wouldn't agree with that
`because a wire wouldn't actually be doing anything to facilitate the
`connection between the two devices.
`The word switch, as Flyp itself has said, is indeed a very broad term.
`The patent doesn't provide any specificity or explanation on what a switch
`is. If there are kind of gray areas, if you're talking like a very big box like a
`server, again, that's not what we relied on in our petition. We relied on the
`very particular PSTN interface which plays a very critical role in handling
`the communications with the PSTN network.
`So to the extent there's ambiguity in the word switch, I don't think it
`would cause the PSTN interface to be outside of the scope of the claims.
`JUDGE MAYBERRY: All right. Thank you.
`(Simultaneous speaking.)
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`
`JUDGE WEINSCHENK: This time, you go first, Judge Cygan.
`(Laughter.)
`JUDGE CYGAN: Could you go back to slide 49 for me?
`MR. ZEILBERGER: Yes, Your Honor.
`JUDGE CYGAN: Can you walk us through the combination of the
`PSTN interface that you're sort of plucking out of the prior art of this
`reference? I'd like to understand why, here, you'd be using the same
`interface throughout the entire call or throughout the entire connection
`because it's being received through the Internet, correct? Or are -- I'm not
`sure if you're applying its connection through the Internet or if you're just
`applying the interface by itself. So you could explain about how this works
`in your Backhaus combination?
`
`MR. ZEILBERGER: Sure, Your Honor. And one thing to -- I
`just want to make sure you're understanding. For slide 49, this is the portion
`of our presentation that that's not directed to the obviousness combination.
`This is where kind of relying on Taylor as a State of the Art reference. The
`-- kind of the portion of our presentation has the same figure but is part of
`the combination is slide 58. I just want to make sure that that's clear.
`JUDGE CYGAN: Thank you.
`MR. ZEILBERGER: But in terms of the PSTN interface, that
`interface is what's interfacing with the PSTN network. And so, that would
`not be a scenario where you're kind of connecting to the Internet. That's
`where you're connecting to the public switch network.
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`IPR2023-00357 (Patent 11,218,585 B2)
`IPR2023-00358 (Patent 10,334,094 B1)
`IPR2023-00359 (Patent 11,012,554 B2)
`IPR2023-00360 (Patent 9,667,770 B2)
`IPR2023-00361 (Patent 10,051,105 B2)
`
`
`JUDGE CYGAN: And so, how is that being used in the combination?
` Where is that go into Backhaus then?
`MR. ZEILBERGER: It wouldn't change the way Backhaus operates
`at all. The issue here is that Backhaus simply doesn't explicitly recite that it
`has a PSTN interface. It probably -- I mean, even Flyp itself, in its papers, it
`argues that Backhaus would already have a PSTN interface, and the
`combination, they say, fails because we don't e
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