thank you your honor may be pleased to court the parallel patents claim a method for dealing with the website congestion by spreading the processing of requests for web pages among multiple servers because others had already come up with that solution parallel tried to distinguish its claims by focusing on the term dynamic web page generation requests to a web server and arguing that it's system required that there be only one such request while the prior art systems in particular th system process that same request so before the board parallel argued bad things like the router request takes the package it sand how it's process can support suppose i disagree with you about you characterization of what was being built in to the board's view of where one request stops and another one starts so that all the board said well when the client a client computer that is house do re initiate a message for whatever it is seeking there is a new request we don't care what the sensible and i guess we have to say in the philips sense the most reasonable construction of what his patent uses the boundaries that request here is w your honor two to reach the conclusion that the fact that the client computer was involved again makes it a new request the board must have must have been thinking either that a request has to go directly from the web server to the page server or that somehow the client computer if it doesn't and it does touch other things one of those things cannot be the client computer but none of that is in the claims or in the patents what did you did you ye we did not ask for a clarification because it didn't seem like we needed one that the construction was a message that asked for a web page and of course the board didn't given the fact that there's there was no clarification why isn't it i mean this is sort of like hewlett packard where we have instructed the jury and there's an effort later on to come up with a new claim construction it seems to me that's a bit what you're doing here that if you accept the board's claim construction it's reasonable to think that under these circumstances that there is a second request here no i don't think that that's correct your honor and here's why because the patent makes clear that none of this routing or packaging or anything makes any difference of and we know that because the in column for for example the patent says that a web client makes a u r l request this you seems to me that under their claim construction it's reasonable to think that the computers second request is a second request no i don't think so and we did argue before the board that the subsequent involvement of the client computer didn't make any difference and we did argue that the routing doesn't make any difference the packaging doesn't make any difference so so it certainly in that sense we made the argument and the the point is that can  semantic content of it if i had a bank of a million computers and i set them each one simultaneously to send to the web server give me the stock price of microsoft right now is that a million requests or one request because they all say exactly the same thing i think if they are all going to the and and this raises another important point at the point where the board wan if they're all going to the web server i think they're separate requests to the point that the where the board got confused i think and all of this is a i think appendix like what i said it that they all say exactly the same thing they do but they're separate initiations and they're going to the web server and this is the point i was tired was getting into the way that they use the invention supposedly reduces website congestion and now that the now if now if you're distinguishing identical substan content at the address why is that not equally true of the i guess that the rerouted s one in swim it's going in different addressee well it's going to the page search or it's not going to the web server and what you're trying to avoid is congestion at the web server that's the whole point of this and that's that's why the that was one of the reasons the board said well the redirected request has to be a new request because it's creating the congestion that the patents were designed to avoid but it's not doing exactly the same thing as the patents you have one request going to the web server and then the web server is distributing that request to the appropriate page server in the invention in the patents it does it through request forwarding in the sweat it does it through you are already direction so it bounces it back off the client computer but it never goes to that web server again it's going to the appropriate page server and that's one of the that's a fundamental misunderstanding that the board had what you're describing is more like the other place where they want to stray which was thinking that hitting a refresh you know refreshing a request is the same thing that's web is doing but it's not it's making a new request to a web server and that's our expert explain that but they they just dismissed that distinction but that distinction is at the heart of what did the supposed innovation of these past is it reducing congestion at the web server can can i just switch topics on  i guess my question is except as to one or maybe a few of the dependent claims i did not see your expert relying on that as a motivation to modify swabbed on the assumption that swabbed wasn't anticipatory it it was not the that that you know the calculation they go through that comes up with that millisecond it's the earlier statements where where it talks about you are already direction has certain disadvantages the additional pass requests cycle and all of that it's talking about the extra work basically that the client complained about but just putting aside the magnitude of that i don't think your expert said that computation that they were doing and swabbed was not a comparison between u r l direction and requests forwarding it was between their system and a system that doesn't use that distributed servers so i think it's not that there are two different respects in which there's a a disadvantage and you're right there at the time the processing difference that they've calculated is miniscule there but what they're talking about earlier on which is what our expert was talking about was the additional and it's your position that there can be a motivation to modify even if it isn't shown to be better absolutely and i think that's what k s r says these are there are known t that there are more than two but in this case two different alternatives for accomplishing the same thing moving a request from one server to another its web use you are already direction but requests for and it's understood it was known in the ark was within the your expert identify as the advantage because i read the board to say he just never mind whether was better but you just haven't said why somebody would do it maybe it's an alternative but why would somebody well valse web explain some of them that you don't have the additional need so when you do your expert didn't we lie on that excess overhead i think he did your honor he pointed to that passage in swabbed where i think it's in paragraph two fourteen of  mean he talks about how request forwarding was not on the right looks about advantages a request for right and then on eleven for fifty he talks about and this is about two thirds of the way down the page person born or skill would have been motivated to a place like such a technique and scheme of sweat which is expressly concerned with efficient use and then it quotes from so web about the risk resource constraints on network latency and that sort of thing and it goes on on to the next page arcus or whatever right right he well i think what he is saying may be fine by referring to sweat in the resource constraints that's web is talking about i think that he's saying th requests forwarding is a potentially a better way of dealing with those resource constraints but entirely apart from that even if it's not even if the board's right about that i think under k enablement obviously as a legal question requires factual finding support in the dress it so i think just by raising enablement i think that shows that it needs to go back so the board can look at that and they're clearly their expert on what their expert said they cite their expert their expert only said police court counsel i think i'll start where mr troll started with regards to the claim construction issue on request and i think it's very clear when you look at what the board did as if he applied the agreed construction of the pardons he took into consideration both microsoft's arguments and arguments by he you mean the three member of the panel yes yes you're on and came to the conclusion that based upon the  client computer having to perform a nother action that was exactly the same as what started the entire process there was a second request and i think that the key piece of evidence that he cited to and that he considered was the most important i think was the admission of microsoft's expert mr mitchell mocker who at his deposition testified that there was two distinct initiation actions and s web ninety five that took place that the second request that is generated took it outside of the scope of the three three five and five five four patent claims now there's arguments that were made by microsoft regarding these additions that the panel added allegedly matter of describing the process was a generally familiar with the two micro yes not that so in in district court world sometimes what happens is as a proceeding goes along in your past claim construction it turns out that the parties have a dispute let's call it the scope of the claim and there is some law of growing out of i quote to micro that says sometimes when a party says judge we need a new claim construction there is clearly a dispute about this and sometimes the judge has is required to do that did anything like that happen could it have happened in the oral hearing before that board because what we're in this part of your dispute is did the board really do a claim construction and in this precourt land sometimes we resolve that by looking at the opportunity to say do this as a claim construction rather than as an application yes rather i think sports certainly had an opportunity and did do a claim destruction that the way the case was postured was that when microsoft filed its reconstruction the result of this microsoft's petition did not request as it could out construction of request all did it did request construction of other terms when the patent owner filed its response a brief after institution we dispute your honor as far as what the construction of requests what you are saying the parties effectively and greed to the construction that had been adopted in the district court proceedings yes are up can i ask you to turn if it's leave that paragraph which i guess a two page paragraph and saying not just that there are advantages to splitting up into multiple servers to service  of tasks but that there are reasons to do so by forwarding as opposed to sending it back to the client to getting the client to do another it and i  think to answer your question if i understand what you want your honor a is asking it is i read paragraph two fourteen which is on appendix one one four four nine and crossing all the way to appendix one one four five one what i read marker saying there is there is a generic benefit noted in the art to request forty what do you understand or what do you think he meant by request think what he meant by requests for doing this as well as this or just this i think the intent was that something comes to a computer if it gets sent on to another computer but that's all i think that without regard to whether that sending on is direct or back through the client that's how i am usually read this but i think the argument is that that is  and that's one of the reasons maybe that because the sweat of overhead material is not cited here and the freeing up of c p u cycles and memory resources is independent of how it gets to the  second server i sort of read this in a way that this was not really addressing the dispute between the you know back up to the apex of the of the triangle that not enough either to come within k s r which may not quite require a motivation to choose among certain kinds of known all known substitutes or in any event nothing of a motivation to meet to tend to be the standard well and the board simply said he has not identified the motivation right and i think the reason why it's not enough as to what's said in this paragraph to fourteen from his declaration is that he doesn't engage as cats are instructed on why a person of skill in the are being put in the position that he or she would be here why is a change going to be made microsoft in the either better or there is some other advantage that's given to the system by taking your helmet redirection away and putting in requests for tink and i wouldn't go so far as to say it's it's absolutely mandatory that it be strictly better th are redirection but there's there's got to be some reason why a person and maybe because it's better or but there may be some other reason a person skill in the outlook in that this problem look at this particular reference was said you know what if i would rather do this or this  i think there's lots of cases you know which there's instruction that you have to provide you have to find a reason for whether or not the person skilled we are going to make the modification or make the change their pri agree with your daughter in that respect but if you look at the the train of thought and what k s r taught us i think kids are taught us that you have to there has to be this common sense that's that's looked at to see you don't just do it to do it that's where hindsight is going to come in you don't just make that change because well there is it's out there but it seems to me kind of hot on the way that you're saying that he has to show that patent makes a claim that it that it's inherently better i think part of the invention and part of the novelty of the claims is just that it's different it's not better i think in architecture it known or accepted or elite i think that still had to be played out in the art i know it's a long time it was a long time ago so it's hard to put ourselves in the place of a person skill in the art back in that point of time but i don't think it was just accepted that in that particular architecture one would be better than the other could we talk for a minute about the unix thing and do you agree that the only issue here is a navel i don't agree with that your honor i mean i as i read the experts here neither one of them really addressed enablement this is that fair i don't think that's fair i think that what dr jones parallel networks expert said and what itself says is that it would be difficult for a person of skill in the art to change the unix kernel which was which according to the authors of us web was something can be enabled to be difficult at the same time can i think by the way that it's phrased that way of it's referred to is that they're basically saying look this is something that a person of skill in the art may know how to do but we don't know and they certainly in the reference did not describe anything about it beyond just saying it would be difficult you have to change the kernel and why so the board didn't address this in a question right well i think they they did not address in the end to space and section of the br i agree with that in the obviousness section i'm so i part about it the panel did not address it in the anticipation section of the final written decision however in the obvious the section of the final written decision they in that case i think the statement by the or that the difficulty with that i'm sorry to say that's at page twenty two in all that his is a description of your contention it's not a finding but make sure we're on the same parallel this signifies that the modification was non trivial and beyond ordinary skilled artisan but that's as i take it just the description of your argument that's correct but if you look at the next sentence panel states that although we believe parallels arguments have merit referring to the listing of what those arguments were proceeding it's different than saying it's correct well i think that the senate goes on to say it's relying not on that but on the motivation primarily on the fact that it then discusses iraq so why don't we have to send it back well soon with its correction properly raised because i believe that that that section that we've just read in court provide sufficient really two minutes think it's clear that he's talking about he's not talking about requests forwarding and in the u r l every direction sense i think he's talking about what you are all you are of redirection to one side requests forwarding is another way that has advantages of doing this i think it's clear from the context because the paragraph before that he's talking about your own redirection that also paragraph forty two of his reply directly declaration which is at appendix one five nine four six he makes a very good explicit that what he was talking about into fourteen and one of three six which we have i guess a piece of yes to the things that he said and pfister and those are were those are traditional requests forwarding not you are all redirection or so i think the context ok makes it clear and i think it's which is a new action by a user sends a new request to the web server the bank has to go through the whole process again of being of having the dispatcher decide which page server is best to handle it and all of that so it's a completely different situation than you are on redirection and it doesn't use the term requests forwarding it just says sent from dispatch from the web server to a page server doesn't doesn't talk about how and so we say we say it doesn't exclude your already direction it just says get it from one to the other somehow  just keep it why would that not come within the claims why would that not come within the going to the claims actually requires sending it to a different place they don't actually they don't require sending it to a different machine because  constructions of web server and page server both refer to software so i think it ought it actually could be two units of software on the same machine and it just you know the the receiving piece of software says ok this machine can handle it and hands it off to the processing you know the paid server software so in theory it could all be on the same machine we've been talking about it is a different machines but it could all be on the same machine thank you ok thank you mr i don't think both council cases submitted