itself to this patent and it rejected challenges to the validity of the patent over the same m r reference now the board here reached a different outcome for for three independent reasons any one of which requires remain on first if fundamentally misread  requirement the packets destined to the control plane receive not just control plane court services but also normal port services second its analysis of secondary considerations of non obviousness is legally flawed and misunderstands the legal significance addressing the issue of long felt need and whether the core builder reference can satisfy the limitations the board found missing from mara a port a point that the board seems to assume in its opinion but never actually address and so again any one of these not enough and then they i guess they also consider claims are where you show them no there are various functionality in fact corresponding to functionality use of your clients product even if there's tour where the board quote stop its analysis of the evidence of copying prematurely and you know that the board did this because the boards conclusion on this matter appendix thirty three is to say that neither the feature names nor the command line expressions are the six six eight patent and thus dismisses the evidence of copying as being very weak the fact that the feature names in the command line expressions are not in the in the patent is beside the point neither are the user manuals which arista copied including down to typos and you can see that appendix thirteen to forty one the point that the board doesn't seem to actually grapple with is that when you have the copying of the same feature names the same command lines of the same user experience as their c e o s the c e o testified about and you have to get the the accused product giving you the same results the only reasonable inference to draw is that the features were copied too be that you would conclude that the features themselves are copied and this is not a surprising conclusion for the board to draw given that you have a risk the c e o acknowledging that there's a lot of cisco maybe what the boards trying to say if we need something a little bit more show actual copy of of the elements of cisco a product that the board's conclusion on all of this is to say well quote neither the feature names nor the command line expressions or claim in the patent that stunting the analysis i understand they're not in the patent that's not the question the question is does this provide circumstantial evidence of copying and so i think the board got off the train at too early of a stop just like what happened institute pastore and that's really a reason enough for this court to remain and there's a similar issue with respect to the long felt need and if you have the board sent saying that cisco quote never addressed whether the need was satisfied by another it's appendix twenty eight and it's just in the cisco quote never asserted its products satisfy the long fell need appendix thirty that you can't reconcile that with the material you presented to the board appendix to eighty two eighty three thirty six thirty seven to eighty four and and to thirty five to me in three thirty five if this go i think this issue comes down to how do you define what longfellow need was this for example in looking at some of the evidence that the on this issue the board said well the question was the thin often i'll service attacks for others it said our evidence that others had failed wasn't sufficient because that didn't address whether or not they were solved the problem at the control plane so the boards reasoning in this article in our brief is internally inconsistent on this point and that again is yet another reason the board  my concern is whether it's those arguments were internally i appreciate the question i don't think that they were think cisco's position was always this was about mitigating denial of service attacks and doing so by protecting the control plane and indeed that actually sort of feeds back into the the the principle argument here the first argument here which is how is it that the this is done the claims require the packets destined for the control plane received both the control plane for services and the normal port services and you have to read b and d to the elements element be an element d to of the claim of the claim together and specifically if you look at element b of of claim nineteen it provides that one of the steps is quote executing port services on packets entering and exiting the physical network interface ports that's not unlimited is not limited to some of the packets that language unqualified and there is no path to pick did in the specification there is no example where a packet reaches the control plane without having both normal ports services applied and control plane ports services  ordinary rules of grammar want to let noun is left unqualified it applies without qualification now another point here if you look at the argument that a risk is made making and their arguments is that well it's enough that some packets might receive normal cour services under that rationale you have to read b and d two together d to says quote the control plane port services operate on packets it also isn't modified and so under their  rationale it would be enough that control plane ports services were applied to only some of the packets and one that makes no sense that would be self defeating the whole point of this is to have enhanced protection for the packets that are going through to the control  plane and if some of the packets going to control plane are not going to get control plane ports services then the invention doesn't work second is inconsistent with the specification itself if you look at column three line line fifty three to fifty seven it contemplates that all of the packets are going to receive control plane port services packets always have to pass through the control plane port entity to ensure that those services are applied that's what it says it at column three line enter through an antenna that they're not always going to come through a physical port and that when it says what it says typically there it's talking about simple operation of the system and that is the that is what what what what typically is referring to there it's not suggesting that they're going to be circumstances in which hackett's are not going to receive normal port services and that would defeat one of the purposes of the invention you have and administer bill of the issue in addition to having enhanced protection for the control for the control plane the invention is about doing it in a way that number one does not sacrifice the effectiveness of transporting transit packets quickly and number two that it can be done and ministry away as opposed to having to go and take her with all the different physical ports on a device if you had a system where the packet said to the control plane are not going to receive normal port services then you'd have to reverse engineer and come up with a way for the control plane entity to provide normal the normal port services as well which would vary potentially from port to port if the court has further questions i'm having taken but perhaps if i could reserve the balance of my time for rebuttal i can respond have a little question please  going what's going on here is a reference to the packets that are coming through the control plane port entity because that's going to be what's in that insane transit but even if it's referring back to the control plane port entity that's another way of saying well that's where the control plane port services are going to be applied is is there substantial evidence to support the board's conclusion the factual question i mean the factual determination that is something that is given deference to the question of substantial evidence and the record created by cisco on this they chose to create this attempt to create a fall of the so called culture of copying and all of that without really time get to the issue that they have to prove and the board stuck them with that the board said we're not going to pay attention to all of this a lack of copying but there's but there's a second question too and that is let's assume the board had found evidence of copying i believe under this record that would not and if the board had found that evidence of copying had defeated the substantial evidence of obviousness i believe that would be error because the only purpose of these so called secondary considerations is really to prevent the hindsight combination of core builder in a market but clip but what's important is below they never ever challenge the motivation to combine core builder and m r of themselves they challenged handle which is not an issue here a core builder of them are they did not challenge the motivation to combine that and for good reason amar's the three com patent and core builders of three com rather and so they did not challenge that so the relevance of secular considerations is at this considerations won't trump a strong case of august with us or so that's for sure and the court has said that the purpose of this copying in the secondary consideration of a strike is to try to negate hindsight bias to combine relevance is to rebut the combination where the combination does not challenge then i don't think it would be sufficient under this course precedent to rebut a strong case of obviousness the court the board found a strong case  us and said this week evidence is not sufficient that should be upheld a because the finding of weak witness was supported by substantial evidence but b even if the court disagreed it would not be sufficient to trump the strong case of go through secondary considerations if you don't attack the sick room if i think it's that's not the rule i'm suggesting i'm suggesting that that the evidence of copying another secular considerations would not be sufficient to overcome the strong case of still say i guess in your view nevertheless in the face of this very strong case of business and strong evidence of copying that's my not cannot prevail strong that's my point this court's precedents are clear that we have a very strong case so obviously this and i would submit that precedent is even stronger where the relevance predicate of copying isn't there because cisco's record on copying is this sort of amorphous stuff and what the board did was hold quite properly that the selye well that's it that was a copyright case that they lost  at that doesn't mean that the com product in the specific functionality as claimed was copy which is true it's very burden to prove nexus between this amorphous stuff about copying and the claims and they failed need there's a only two issues i want to talk about there one is and on copy cisco tries to suggest that the board's discussion on this is insufficient but the board took the step here didn't copy and paste the petitioner's arguments which they cited that is either the pages that they were adopting quote as our own the fact that they didn't copy and paste it into their opinion is irrelevant under pace and cisco's complaint that the words used in the actual board opinion were not as the few see it as they would like to fall squarely under pace which says it is permissible if the courts if the board does say we adopt it as our own need there is only one other issue this is the combination of no it's about the whole issue of i don't i don't think there's any question about that and they the board cites to various portions of the petition in supporting various of the arguments throughout the discussion and so if you look at page twenty two we have reviewed the petition pitter patter is response of petitions reply as well as a rabbit relevant evidence sufficiently established petitions contentions for claims and list the claims and we ad inconsistency in the board's approach and i think that's exactly wrong the inconsistency with cisco the board correctly pointed out that the claims require protection at the control plane and the board contract we pointed out that just to say was also by the way this two thousand and thirteen article that that just goes submitted which shows there were still denial of service problems at the general level shows that even under cisco's position at the general level it hadn't been solved that i would submit is clearly inconsistent with the claims and certainly inconsistent with the specification but the starting point is that the standard here for the board is broadest reasonable to patients cisco's interpretation is undeniably narrow it's narrowed because it had to as a requirement that those control plane packets get an additional type of service rather than merely having control plane services so that's narrower and the question then is that i disagree completely so n that it has to always have more ports or to supply column to line sixty three to sixty six squarely talks about a particular environment where a court has no configuration at all yet and says in that context your own if a there are no normal ports services that's the whole point it has been configured that's in the spec of column two and so that's a situation where control play packets coming through that one configured port described in the specification would have no normal port services would get control plane port services and that's clearly inconsistent was just goes construction third call in six lines twenty four thirty two talks about this administrator access during a denial of service and rather figure five i'm sorry figure five is what that's right and figure five says post for example and that's a column six is describing as you're going to allow that traffic regardless of whatever those ports services are that may limit the rate or anything else because it's for example an administrator who wants direct access during the house service attack which makes complete sense you wouldn't want the administrator subject to those port services was trying to access the control plane to fix it and that's exactly what that's talking about a column six column lines forty six to fifty six also inconsistent with cisco's construction because it's talking about in the context of figure five that the packets would go to the control plane quote without rate limits so the rate limits are the normal course services not applicable to those control plane packets because you want the administrator to be able to cook to reach the control plane but if there's any question about all of that it's removed by column six column six lines thirty six to forty two and i'll read it thus the user has afforded significant control over the flow of traffic destined to the control plane it's just as if the control plane were a hardware interface since control plane destine packets will invoke only control plane services transit traffic and system performance is minimally impacted since control plane destined traffic will invoke only control p services there is no way to reconcile that statement with their contention that the claim must require port normal port services in addition to control plane services being applied to those packets destined for the control plane impossible to reconcile and that's the specification it's also inconsistent with their own expert testimony in the i t c who read that plain language said i don't see it meaning that you have to apply a normal port services to control plane unreliable that's a poor service that's of course it was really applied to a court but you could have courts that are not configured and therefore none of that is happening because it has been configured to happen that's what two teaches us and called six  square telling us that is not that in many situations control plane packets will only only info control plane services cisco's evidence is primarily figures four and six especially creation is reasoning here in terms of its analysis of copying and of course we're here under a p a review and it's not enough for the board to just simply say i agree where i disagree is this court has made clear in a number of recent cases like icahn health of an recently google versus intellectual ventures word has to explain why it agrees and why this agrees and the point by the way that he points to on page twenty two for the board proportions to adopt their initial contentions were not of that goes to any of the issues of copying because none of the stuff about copying would have been part of aristos initial contentions the suggestion from arista that secondary considerations are just relevant to the issue of motivation to combine is unsupported by case law it obviously goes to the ultimate question of obviousness and what you have here is the boarding gauging any legally defective analysis they just did it did not even consider the inferences this court has has articulated what a party has would mean that you could never prevail on showing copying without direct evidence of copying the feature itself that the notion of circumstantial evidence would be gone here we're not dealing with amorphous evidence of copying we're talking about evidence of copying the very feature names the very coming on line expressions used by cisco to implement the features of this very hat and if the board of products applies a proper analysis to copying it will lead to a different analysis now coming back to the question of of claimed construct and mr powers makes a lot of arguments today none of which except for the last one are in his brief he does refer to the argument and we said that it is clear there's a misplaced modifier when you look at the second sentence it defines what's going on in the first sentence it says that is transit packets will not invoke control plane ports services but will continue to control plane destined packets don't get normal port services what inhance is the operation is that normal transit packets don't also get the control plane port services that's one of the things that the art was improving now in terms of some of the new arguments that we heard today the point about column six and figure five alternately they're all this is saying is that the administrator can apply different kinds of control plane port services consistent of course with everything else in the specification and there is no reason to then ignore by the way the plain meaning of element b which doesn't mater isn't modified to say some packets and there is no response to the fact that if you read it be that way you have to read d two that way and if you read d two that way that means some of the packets going to the brain to the control plane are not going to get control plane port services and that makes no sense these need to be read consistently thank you