two thousand and seventeen twenty two twenty three my name is bill delaney in together with my partner andrew again for i represent cisco given the limits of time i would like to focus on two issues today but i'm happy to address any issues the court would like us to first i would like to focus on  type of information that you might consider to monitor the network is not sufficient to save it in fact it's very much like the information that was in the claims in this court's electric power decision and that information t record is clear the inventors here did not identify those categories of information they did not suggest there was anything novel about those categories they were not the first to suggest that those categories be monitored for the purposes of the event of filing suspicious activity they were simply categories you would consider in taking this abstract idea and applying it to in this context one of the really internet which is hyper clicking and basically going to a new website destroyed it claims here don't solve a problem that is unique to computers and in fact the argument that was made to the jury by a psoriasis the best example sri argued that this hierarchical monitoring is old has been applied before in computers and elsewhere and  gave a specific example which we've cited to i think a page thirty three of our brave but it seems sample of bank guards in different banks who might monitor assist suspicious activity who might then write reports they would go to a supervisor a supervisor would integrate them and provide them that is precisely what the claims described and you want to give you that the incorrect agency has twenty eight but this is the sample bit sri gave to the jury and demonstrates that it's not solving a problem you need to computers and that c d r though they were trying to explain sort of for the jury to understand what you're trying to do is look for suspicious activity and then added up but had the bank card to different locations and the bank cards watch for suspicious activity it could be new traffic coming to the bank you could people to take extreme while he was ski masks on standing to report to supervisors and sri made to the jury and what they said is i think best demonstration that these claims are very general and very generic they said what kind of software you did doesn't matter what kind of hardware you  need doesn't matter what does it have to do to collect the data doesn't matter they're right that is how general the claims are and i think your honor the second half of my answer would be that the end result of g d r what's up with a new web page basically address the problem of the hyperlink or clicking on one site and going to another there is no new web page or nothing analogous here so i think if i were to line the cases up as fast i can this case is much closer to electric power and fair warning it's very close select power and the claims are almost identical in terms of this additional information in the records you haven't needed that previously and that very data had been analyzed in order to detect suspicious networking yes and then your honor if you go down a little bit further on that page fifteen fifty three lines twenty information that doesn't have anything to do with whether they would whether they were the first to monitor in this fashion right now your honor but i think it goes to judge laurie's question at the outset which is that the categories of information which i understood judge sold to be referring to now are the same categories that george laurie referred to at the outset and those are the only categories that add any additional words  context of computers monitoring these cattle these categories of information were known and monitoring these categories of information in computers was known that is why your honor if you look at that  but they overlap to some degree i mean the second step of dallas which i'll turn to immediately clearly overlaps to some degree with the question of how the two are obviousness but that's not the question  again i would bring the court to as a panel decision electric power where like an electric car they specifically consider the categories of information the panel specifically said that those categories for information were known before were monitored on electrochemical bridge before there was nothing electric power was about collecting information and displaying at night making and now based on particular information using in a particular network you know you're right first it was a network it was the power grid network the second was the claims identified the specific categories of information and very much the same as it does here here and but the panel said it is merely identifying those categories of information collecting data based upon them and analyzing them and reporting them is an abstract idea but i two i think the way the cases break down is that if you believe the claims are generic in general and describe electing analyzing reporting data it's an abstract idea that's what they do step two we're not skipping over to it because the answer on step two is in figure six and in column fourteen where the patent itself says that the implementation requires only customary and common computer components so there's nothing in step to the the real question i think when you good folks question is it's there does this fall into the category of collecting analyzing reporting data the claim is very close to electric power is very much like this court's decision and fair warning if you contrast it with cases like and fish singe in d d r and every single one of those circumstances there was a new data structure a new memory device a new web page there's not anything like that here and there's nothing that specific let me in each of these i mean sit down i want to talk about welcome so i know that presupposes i might be disagreeing with you i want to one but the answer is i don't the technology but esther i decided not to disclose the technology at that time and the words that were used by the witnesses if we clammed up so we wouldn't tell them anything about the technology right and there was no there was no disclosure  therefore willfulness dating all the way back and being waited on the way back to two thousand would have been inappropriate yes we did your honor and i will find this out find a reference for you before i call them a bottle ok ok office as there is to just reports of there is the question is the scope of this claim or and the way i would do it in the time i have left is i can tear it up for you best this way the disclaimer says no in direct examination is sufficient say if the information has its source if it's lineage if its origin is the data packets that's sufficient that abrogated entirely the disclaime make you good morning made pleas for i'll deal with the issues in the same order councils it affects ok first on the want to one of the this is this is not at all like the sort of garden variety one of one computer one instrument now with these and they changed he went on simply different software it is a improvement to the system itself the software and system itself in the selection of these network traffic categories i mean that's really the the core issue that cuts across i think several arguments that cisco is making were the categories no one per say yes had anyone selected these specific categories for this specific purpose you have to the insight was to recognize that looking at this particular kind of data in this particular way solved a problem that had not been solved before ok other cases and cisco consistently doesn't do that in fact that the formulation you heard today is the fourth different formulation by cisco of what it's the what the invention is today it's collecting analyzing and reporting data well that that doesn't do justice to these claims no it's not it's looking in a computer network security with a specific hierarchical arrangement of software and hardware you're looking at specific data you're creating reports based on the dat you're looking at if you were then integrating and correlating those reports these are very specific claims and you describe a technical problem that is solved by the claimed mention it is it is being able to detect intrusion in large scale computer networks in a practical way which had not been done before it simply have not been people had tried in some of the prior art they cite other than as our eyes on prior art that did system was another attempt to try to do it purely academic system never adopted in the real world never worked this this research these patents grew out of research funded by darpa the defense department to solve this very problem and they did  analogy that you did to yuri that certainly sounded pretty simple well of course we're not arguing on a one to the jury right i mean it's an analogy to help them understand by reference to something in their own experience what we're talking about to get in the ballpark as it were but that was there was a lot more said to the jury than simply that high level lead him we focused indeed on the on the network traffic categories in particular that argument was made not to the jury not in the context of emeril ninety seven because sisko dropped that argument before the jury trial but in the context of the other reference the ditz reference there was a lot of discussion about that that reference monitor network traffic data at all for any purpose if it did look at the specific kinds of network traffic data that are were cited in the claims because that is the key that is the key to these claims and if i can just comment on the other cases counsel has as analogize to electric power very different case in that case somebody took looked at the real world how do how does somebody run a power grid a person who's overseeing a power grid sitting at a centralized location what do they do they look at search kinds of data and they collect them and they put them on the screen and then they try to figure out what to do the patent in that case said ok let's take that and computerized so so that was a classic case of taking something that had been done  district court found i mean you know candidly the district court said i think this picks up judge laurie on your point she said look at some level if you state it abstractly enough every patent that touches software could be described as involving abstract ideas that's what we all can sort of recognize that but that can't be the analysis and step one it has to be more than that there has to be a looking at the claim and to see if there is something in the claim that pairs it down and in this case the court said yes there was just like d d r where you had an improvement to the actual functioning of the computer in the computer network itself ok so if i could go on to oh i'm sorry suggest if you look at the actual citations and let me provide them please the meeting was set up because of cisco's request to see the technology that's at eight five zero two seven ok and what was what was not to show into them was advanced high level correlation a very specific flavor of correlation the the integration of correlation step because sri had decided they were going to carve that out and save it for a start up company was showing a demonstration of the basic operation of the system how do you deal with the fact that they're too conceited it turns out that they didn't copy then copy the patent claims that was that was that concession again was very careful the patent did not exist formally at the time of the meeting right true and so the first point at which you could be an evidence that they were aware of happened this is that they don't do the soonest we know that they knew was when we told them in two thousand and twelve so then how the technology and use the technology that's still relevant to willfulness even though the patent formally issues later so this is really this is one of those cases but the other part of the willfulness equation of course is why did you need to do even have a patent a thousand we did and did you tell them that i don't believe the record reflects one way or the other to be honest your honor whether whether it was whether there was a communication directly to cisco that patents were not going to been a pretty important point to print record with if it was accurate i believe i don't disagree with you i just don't know whether the evidence existed one way or the other we do know sri published excuse me published  publicly articles on their work as it was happening that's actually how emerald ninety seven came to be is because you know sri had to to had to report to the government here's what we're doing here's how we're spending your money here's where we are and indeed it was  reading that information that caused them to say wow this looks interesting let's have a meeting about it but the former white house well it is that as far as that goes it isn't what you have but we know how the story played content i got sued by sri i assumed s or i didn't know what they were talking about he was contemptuous of the patents i mean that it's hard to capture on a whole record how that testimony hit the jury but this man showed up and said i don't think these guys have any idea what they're talking about mean and he was very dismissive of the patents you couple that with the fact that they're there infringement case was exceptionally weak they went to trial on two arguments one of which was contradicted the court's claim construction flat out there they don't even challenge that on appeal the other contradicted their argument there are their documents on correlation there were dozens of cisco documents that talked about how critical this correlation feature was to their system and their second marquee trial the fence was what we don't do we don't correlate and the district court saw all this and said in essence that's kind of ridiculous that you would put on those two defenses and they don't appeal to either of those two  so that so much for infringement on the validity side they gave up seventeen of nineteen of their validity theories on the eve of trial no obviousness defense they go to trial on anticipation defense on a reference that was litigated repeatedly in earlier litigation they had no new argument it was rejected in all of the re exams they have no new argument and they don't appeal any of that to you either have georgetown rail is one case georgetown rail priest city all components so at least those two cases explicitly reaffirmed the viability of the read factors the only case they cite to the contrary is spectral linux that case actually reaffirms the read factors as well in the page prior to the one that cisco cites and says yes read is alive and is alive and well these are the factors we use the only thing said was you might not weigh litigation mix conduct as heavily in the enhancement scenario or context as you would for fees but there's i don't think there's any question on this record that that reads alive and well what cisco contends and in fact with they're contending they use this phrase in direct examination you're not going to find that phrase in the prosecution history etc i never said any such thing and in fact even  examiner fundamentally they're trying to rely on what the examiner said which of course under this court's case well you can't do doesn't i won't say it doesn't matter what the examiner said but certainly that doesn't create a clear and unmistakable disclaimer by by the patentee but even the examiner never said gee if what you do is you take the actual network traffic packet and you take it apart so you can under so you figure out what you're going to actually look at you out you get the to the just the data then you reorder the data you so it makes sense so it's in the right order and if you analyze that oh that's not what this patents about that is that was never discussed during prosecution or  now yes yes fair enough but then he goes on and this is really where the rubber meets the road then he goes on the same page to say even including direct examination of data gleaned from network packets and so the examiner takes that those in a completely different direction says even if what you're doing is looking at the data that's in the packets in some way that in no one even knows i think how this could be done that doesn't involve taking the packets apart first and organizing them first in a way that a computer can even process them well even that's not covered and so that's that's really what the i think where it's it's not at all clear that there was a disclaimer and and again at the end of the day  i know one running out of time here the patent examiner was distinguishing this intrusive activity article this was over to the next page intrusive activity this is all this discussion is about that reference ok that reference had nothing to do with pre processing network traffic data it was about analyzing higher level complex abstract objects that were inferred so examiners word infer from what was going on with the network packets so very different process very different approach to the problem and that's something actually cisco even claims that it does  is flawed it said it four times so it four times characterized it said to exam or said it would cover in direct examination and they four times the logic is flawed and that's why when i tried to do it quickly the idea that it wouldn't the claims don't cover it in direct examination don't cover generator going don't cover proxying cannot be reconciled with the clarification or  the intrusive article covers more than logs and in fact covers their forms and it's described specifically of those pages so their interpretation at least in the brief to you the disclaimer as limited to claim one to the claims of electric power and fair warning those claims have more information than this claimed and facts you take disclaimed and you eliminate the categories of information the judge laurie began the argument with what you're left with is a computer automated method that's how it begins that collects information generates information and integrates it reports it with nothing else under this court's decision that is not pet eligible s