good morning your honour's may please the court i'd like to begin today with our argument concerning that allocating limitation of claim thirteen and then move on to claim construction and the other issues addressed in our brief the other limitations why is that not enough if the substance of that material does the trick it's not enough because of the allocating limitation of claim thirteen it is not contained in clean one which limitations they refer to is also allocating because why in the world would you decide what's available without reserving it i think that a space you know if you're going to incorporate by reference in that fashion then i think you must explain why this separate limitation that it again is not included in claim one is either inherent in or perhaps rendered obvious by the assessing limitation or the representing limitation and that's what the petitions didn't do they didn't establish a link between what claim one says about assessing and representing and then what claim thirteen says about allocating because claim thirteen also talks about assessing and representing and so the natural inference would be that allocating is supposed to mean something different something beyond assessing and representing and if that's not true if e m c is position is that's not the presented for the st time in reply and our point is that's improper under the statute section three hundred and twelve a three requires that the arguments and the evidence be in the petition and then the p t o is implementing regulation question but our quarrel is not with the institution decision with the finding that e m c had shown that at least one claim was that it was a reasonable probability that it was on patent both our quarrel is with in the final written decision fine including thirteen unpatentable based on this ground that simply wasn't explained in the petition that and just to that such a little more on what was exactly in the patients in the carter petition this is that appendix eight hundred and twenty eight they simply refer back to their discussion of claim one which again does not believe of the assessing limitation but at the experts declaration this paragraph one hundred and thirty eight dollars is essentially a copy almost verbatim of what is said in the petition itself and just like in the petition the well how would you understand the substantive distinction between advocating limitation and then the assessing and representing limitations these are all a little bit vague these terms and i don't think they're pre specification i think we would agree with the definition of allocating that petitioners expurgated below which was essentially you walk down a certain amount of storage resources to so you know that those aren't going to be taken over by the local noda and you know that you can offer these resources to the system whereas assessing is it is sort of a more passive activity of simply seeing what's available it doesn't mean that just because you've available and that's separate from the rental cars that agents assessment of how many cars he or she has available and also separate from the further act of a you want this one car i will allocate this car for you and so you know it's going to be there when you show up well not as i was going to just ask out how do you think ocean store operates i mean doesn't operate by managing and making available and used storage space and all these different pull devices these nodes the description of the ocean store system in the reference itself is a very high level and so there are not a lot of details pool the vice where it's unused data storage space can be used by other devices because again it wouldn't necessarily be right if you if you take the fisher's experts definition of allocating as walking down storage resources so they're not available for the local know to use ocean store could make resources available without doing that because they could simply find oh we have these resources on nodes x y and z that just happen to not be in use even though they haven't been necessarily allocated for that purpose and we can store the system's information on those nos is there anything in ocean store that deals with the possibility that in the interval of time between i've got space available and the user sending the information the available space disappears and what to do there's no discussion in the reference of how that process works and that's sort of our point get given how high level the description of the ocean store system is we know that the goal is to make storage resources of these various nodes available but we don't know how the system does that we don't know how they decided to go  something perhaps but even if it does i would i would dispute the premise but even if if your view is that it does suggest this allocating function where you're locking down resources the point is c say well we didn't have to say any more than your own patent had to say in its specification for written descriptions of port it doesn't say anything about allocating it because it's perfectly evident in a system whose function is the function of this is them that you really want the storage that advertised to be available when somebody tries to put something in it i think that's incorrect that the petitioner's burden is somehow lessened by the fact that the according to them the specification doesn't say very much about allocating the what they are trying to do in effect is shift the burden to us and say oh your specification doesn't say much about allocating so therefore you have to explain why allocating women i guess by me partly maybe as a matter of precedent i tend to think of it and in the sometimes this comes out in enabled anticipation where it's i think a reasonably familiar point to be made that it's a little hard for the patent holder to say that th reference is not enabled if the amount of enabling is is at least as much as you find in the patent itself and why is that not a kind of a sound logical point about whether there's enough in the petitions here to support the allocating once you have a description of the assessing for this purpose well i think you are i'd go back to the point that if that was their argument that allocating it was so well known that it didn't need to be described in the specification and so it also didn't need to be described in particular much detail and their petition they needed to say that in the petition but they didn't these arguments about how the specification doesn't say much about allocating and therefore we didn't say much either those were arguments that came up and were ply it didn't you challenge their reply as containing new i don't think so your honor because what the board said was these arguments are fine because they are responsive to what was said in the patent owner response they were responsive in the sense that we said the petitions don't have an explanation for why the allocating limitation is satisfied it's not satisfied for all of these reasons and then they came back and they said no you're wrong the references do disclose allocating and they cited new disclosures and made new arguments that's responsive in a sense but it's not responsive in a sense that makes that reply proper because if that were permitted than a petition could simply say ocean store and to supply its claims one through ten the patent owner could come back and say no it doesn't and here's why and then the petition could just introduce all their evidence in reply so responsiveness is necessary it's not sufficient that's a more extreme example of the right but it's a much more extreme what we have perhaps a little more extreme but but the fact remains that there is a limitation that was essentially ignored they were incorporated by reference an argument from a claim that does not contain that limitation we're relying on the same evidence but a safe again there needs to be a link even if i'm not saying it necessarily has to be an extensive link but there has to be some connection articulated i think i would answer that in two parts my my st answer would be this should be did no vote because our contention is that the board violated section three hundred and twelve a three and its implementing regulation by relying on arguments not in the petition to find claims on that bill in the final written decision however even if you were to look at it through abuse of discretion prison then an error of the law which here are finding claims on patentable based on arguments outside of the petition that is by definition of an abuse of discretion and so i think whichever way you approach it you kind of end up at the point where there's been a legal error committed here and reversal is appropriate when it comes at allocating and d pools and form in the ocean appeared to be mimicked nat's devices and then it does by making available and providing those access data storage resources to other network connected devices storage wise and that you know fit within that allocating limitation why doesn't that track the allocating limitation our position would be it doesn't track necessarily track the allocating limitation because there's there's no indication here that those resources have been walked down in the words of additional years expert so they don't get taken over by the local in those views but again i come back to the point it wasn't our burden to explain why ocean store doesn't disclose allocating it was their burden to explain why does disclose allocating and this our coyness is not enough this cross reference back to a paragraph discussing another limitation and then to expect us to just sort of infer oh this must be talking about allocating and that's what the argument is that's what we're saying is not sufficient  let me ask you this two questions that are currently in my mind one of them is assuming you're quite right about the individual clients with their associated nasty vices having themselves separately individually to represent hey i'm an asked about ace is right how do you get to a claim construction which is your claim construction under which that representation has to be made by an asked about race to the user carter and i must say i find carter more challenging but we have to face it because of claim seventeen that both of them show that even under your construction would start with the st link to the use device i think i can actually answer both of your letters questions and sort of the same the same theme if the claimer sites representing and so that raises the question representing to what were to  as dedicated now as devices and so that the the appearance is to the user or to the user device and later having cancer and you a quake represented appearing yes your honor i think that's the the most plausible way to read that making a representation or having the appearance of so a system in which you know one of a one thousand distributed  computers represent a clearing house i've got space available and that the clearing house is what the user checks with and then starts to use this device you say that is that would not satisfy that claim except for what you say i think you assert that once the user sends material for storage to the client device and the client device stores it that is automatically implicitly a representation i'm not sure i would characterize it exactly like that your honor but our point is that i think i think you say it like pages twenty four and twenty five of your blue brief and then later in here gray brief as part of your kind of construction argument that when the user makes direct contact with the storage device the storage device necessarily represents itself as asked of ice and i think you do that in order to try to have your claim construction cover the fabric that that's correct it does the coin construction does cover both the naz device fabric and the server assisted embodiments and the reason user devices and would direct the user devices to the distributed devices storing the requested data in other words the user device is directed to where physically on the system their data is located they're not oceans or correct yes so the that does not do that because what happens is the user communicates with node it's denoted in one in the reference the user communicates with and one and says do you have my data in one doesn't but it fin ds where the data is in the system then once the data is found on let's call it in x thereafter messages are sent directly from in one to an x not from the user device directly to an ex and the reason that we know this is because ocean store says and this is at the next one thousand five hundred and twenty three it says if replicas move around only the network not the users of the data correct this isn't the right call on the the partial paragraph that begins the column the last sentences if replica's move around only the network not the users of the data it needs to know which shows that if you replicas move around a replica is simply a copy of a persistent object which is how information is stored on ocean store so that's just saying if if replicas move around the users don't need to know that that doesn't necessarily answer the question of whether the user's device is directly communicating to the no that has the desired data well the ready the rebel and in particular so that the material  information they climb the tree until they run into a pointer after which they say that's a search or route directly to the object and i i took that to mean the same thing as the bottom of the left column question the were the replicas are the data the system duplicate data for security and sort of recoverability purposes but the replicas are what the user devices go to in order to access their data and the what the reference teaches is that when the replicas i e the data moves around the user devices don't need to know because they're in they're interacting with a layer of abstraction that's atop the ocean store system and they don't see where the data is physically located on the system carter works the same way as is clear from e m c zone petition describing the reference the underlying details of the shared storage space are concealed behind a layer of abstraction and what the user device sees is a virtual memory space that's divided into files that have no relation to the actual physical devices when it comes down to hard as you argue this argument about the abstract shared data storage space i mean i thought you argued more about you need to represent to the user device and then secondly you need  point is that the carter system because of this layer of abstraction that individual nodes on the system don't individually appear to the user device as and as a vice which is required under our construction and the layer of abstraction is why that represent but i doesn't happen it wasn't clear to me in your blue brief that you made that argument i thought the argument that you made was that the other side's theory was that all of the devices together act as a single device thank you then each node service itself within that device i think that it's sort of a different way of saying the same thing because our distributed devices each of which represents itself to the user device as its own separate naz device it describes only a shared memory that appears as a single large storage space and the reason that and then we cite certain admissions f mc's petitions that describe carter and precisely this way and so our point is that the representation that carter is making is i am one big naz device rather then all these individual nodes on the my counsel started with the allocating limitation and consistent with the court's questions i think the eight hundred and twenty seven patent is a critical starting point for this issue as i own expert assessing that the room isn't used and allocating the room that's how the patent treats the of the allocating staff that just simply says that the distributed devices are making their storage available to others and that's how our expert and i and the petitioners treated it in our petition and critically i b isn't challenging the substance of the board's conclusion on allocating and it couldn't because the board ultimately found that ocean store and carter both teach allocating and at least as much detail as the patent stealth instead they're focused on this purely procedural argument and they're trying to use it to impose a higher burden of disclosure on the prior art than is provided in the patent and as we've set out in our brief this procedural argument is legally defective for a number of reasons a review of some issues because it said of course we get to decide whether we're there what's the petition and what the board gets to do whether it's part of the final written decision under section three hundred and twelve and the same section that i be sites here is little more than a challenge the patent offices conclusion under section three hundred and fourteen a if the information presented in the petition warranted review and the supreme court found that that was barred under three hundred and fourteen dollars day so the argument that id has has brought to the court it's not only substantively wrong petitions treated the allocating step just like the elements doesn't say anything more so you've got to do better than that and then you do it all in reply and then you come up on appeal and say that's not good enough you would say sorry can't look at that the only question is what's the evidence in the record it's all well because i certainly realize there could there could be due process exceptions or shenanigan type exceptions but i the hasn't claimed that any of those apply here in fact they've not challenge the substance  representing limitation and last the court has any other questions on the allocating limitation so the on the representing limitation i'd like to focus in particular on a critical concession i'd be on appeal and our primary argument to the to the board below on the representing limitation was that whatever it mant it had to at least cover the nd and rd body mends because those were the only  direct oh to move communication between the user goes to this source where the information is or the space is that source is necessarily representing itself to the user that's described in the fabric limitation therefore they're not breathing kind of the fabric limited fabric of body i think that's there i would call that their reconstruction of their original construction on appeal mean they clearly ringback are trying to walk away from the argument they advocated below on a separate appearance and they're focused on the i think the idea of a user device and a distributed device communicating directly and if that's the case i mean if their new construction their new argument is right then the board was equally correct in concluding that under any construction including i d s construction the claims are met by ocean store and carter the end of the day a direct connection between the requestor and either space or information and the source of the space in the information that's correct here they also challenge the board's conclusions that ocean store and carter both certainly i mean i think that again the critical concession that they've made here is that the claims have that it would be absurd to exclude the nd and rd embodiments and that's what they tried to do below and that's why the court rejected their construction  the court felt that you had to consider the claims in that context of the embodiments and it rejected a construction that would have excluded doesn't body months and it also went on to conclude that even if it had accepted id's claim construction arguments then then ocean stored weirder where is the best version of what i think may be you say as a concession before the board from the other side that  tried to have their expert tell us his opinion on it and he refused to even offer an opinion he couldn't answer the question about whether there whether their construction would exclud single bit you're not going to have a one dollar to one dollar correspondence between the distributed devices and the appearance of the now as devices instead every every user is going to see some of the distributed devices as  communicating with different distributed devices across the fabric so so there is certainly going to be in the ocean store patric for example you will have direct communications between user devices and particular distributed devices but you're not going to have a situation of appearing as a dedicated nouns device as we think they meant by their separately appearing construction but i think ultimately what the board concluded and it's consistent with this court's accent pathogen case is that you can't look just at the word respectively in the abstract you can't pull a definition out of a dictionary you've got to look at what the word respectively means in the context of the claims and the context of the specification and in that context the court at the board below found that certainly there has to be a corresponden which the st thing was something other than a reference to the individual devices and i could not do it well certainly one could say ok in context the text cannot govern it will look columns it's quite clear that it's not over writing because aside from everything else nothing in those two embodiments excludes and at least one of them both their complaint construction and the conclusion that ocean store and carter don't meet it and that's a separate question i guess lists are talking about that question ok we can store  there are different amounts of material in the two pieces of prior art to support that is there are these couple of passages in ocean store that might support that they say it doesn't i'm not sure i find anything in carter that tells me that at the end of the day there is a user device to resource direct connection ok i'd like to come back to ocean star because i think it has more than that happen on this but i'll start with carter and what the harder figure a l nasty vice by making storage available and you can see that and figure aladdin where you have one on the left and the other on the right and you can also see in the description they operate as discussed above and then down to line twenty nine the specification discusses the directives directory pages being distributed distributed lee stored across memories saying that duplicates can exist and it talks about data moving between the memories on the different notes so what you have a situation ids new argument is that if you have two devices  that are communicating directly with each other then you have the one device appearing to the other as one of these nasty vices it's showing carter the board found that figure eleven in this description shows multiple commercially available p c s for a six a or a six week each mimic mean nasty vices by making their storage available to each other and the board found the excuse me and it's the last sentence of the complete st complete paragraph we find that carter discloses a shared memory subsystem on  each other which i think if the issue is direct connection this doesn't say that right these words would work for one  computers make their storage available to anybody but well all through a you know a clearing house without any direct connection and i don't see the board making a finding about well the i mean the acting as a distributed device so when a user device in a distributed device or i should say when two of these carter knows are communicating back and forth with each other you have the situation where the user device is is seen the other another note appearing as a distributed device and i think that's why the board concluded what it did on carter and why it focused on figure eleven because when you have these nodes exchanging information with sections says and even if i be is right the prior teaches that and then as far as i can tell the board doesn't in either case actually do that application when it's later  summary description of how ocean schools works which is not part of the application of the represented claim limited right and then i end i think importantly there they recast their entire construction on appeal but i think the what the board found was that ocean store works exactly the way that i now says on appeal it requires on page thirty three and a ocean store multiple storage resources are provided by an aggregation of pools each of which can serve data to the user devices each pool device makes it storage available for use by others as e mail example and the directory example which is discussed on appendix thirty three and they're talking about the application discussion in ocean store at appendix  at this part of the ocean stores giving some particular examples of the communications between the devices and the e mail example which the board cites they cite you can yet the second paragraph from the bottom left column talking about this email feature in something called introspection introspection permits a user's email to migrate is doing exactly what fabrics do i mean that's exactly how the fabric in the patent the twenty seven patent works in the nd phase of the process the messages route directly to their destination that direct communication between the user disclosure is clear that in the nd phase of this process that you have a direct connection between the user device and the distributed device it says this in the  distributed data structure until a destination is discovered so that's how it begins st phase the process is just like the fabric in the patterns at that point once the destination is discovered they were out directly to the destination so oceans ocean story tells us that there's a direct communications in this paragraph and they tell this in the next paragraph that there's direct communications three lines from the bottom quote nd messages route directly to their destination of boyd in the multiple round trips that a separate data location and routing process would incur so it tells us that twice and then it gives us examples and the example that the board focused on was the e mail example which is one page over on one thousand five hundred and twenty two you can see under applications the rd paragraph there is the e mail example and if you go to the end of that paragraph about six lines up it says quote this introspection feature of the mail permits a user's email to migrate closer to his client reducing the roundtrip time to fetch messages from a remote server and so what this is talking about again is this nd phase of the process once the destination is identified then there are these direct communications between the user device and the distributed device so as the board found in its opinion appendix thirty three ocean store is doing exactly what i was the claims require there's a  after the the location the distributed device with the information is identified and there's direct communications between the user device and the distributed device so we believe that the construction was correct i mean the board correctly found that it needed to consider not only the meaning of respectively in the abstract it needed to consider the meaning and the context of the cla construction that the board ultimately i dop did where there had to be a correspondence but not necessarily a one dollar to one dollar correspondence it's consistent with the accent packaging case it's also consistent with judge bryson's decision in trover the eastern district of texas case in both trover and in accent packaging the courts rejected the argument that there had to be a one  has to be a correspondence between the items in each plurality so we think that there are two reasons to affirm the board's decision here the st being that the board's construction was correct i e now agree that it would be a embodying that and secondly we think there is more than substantial evidence to support the board's findings fit ocean store and carter both disclose the limitation even under the board's construction and again we've looked at the disclosures and in ocean store and carter but the board also relied on the testimony of the experts and in reaching to usage in swedish it was i think they were making this distinction between respectively as an adverb respectively as and at tributed adjective and they concluded that in the context of right now i just want to know what this document is i i thank you your honors i'd like to make just a few quick points kind of taking them and will st order from opposing counsel's argument e m c has not explained how their construction doesn't read the word respectively out of the claims instead their argument has been you can't let respectively have operative effect because it would read out the nd rd in body minutes disclosed in the specification it does where'd to the board did you directly access the distributed devices storing requested data and as we've been discussing our position is that in order to have this direct access there must be a representation that the individual distributed device is functioning as an little bit about the you clearly do here say this that in any of the architectures patent describes using devices directly accessing the distributed devices story the data where don't think that that explicit argument is in the record and one reason is because those this issue as to whether our construction excluded those two embodiments it didn't really it didn't come up at all until  mc's reply and even then the mc's reply was quite vague they said that our construction was wrong quote to the extent it would include the the fabric and the server assisted embodiments this issue wasn't discuss hearing and that the st time that it really came out and for relief that o ibs construction is wrong because it would exclude these two embodiments that was in the final written decision the argument had never been clearly made by  said below which was that respectively is a recognized synonym of consequently again their construction reads the word out of the claims entirely they've cited the accident packaging case and that case the court did not require a one dollar to one dollar correspondence precisely because it would exclude preferred embodiments that's not the case here in the trover opinion judge bryson's opinion the court didn't adopt the construction requiring a one to one correspondence because  defendant didn't ask for that they were fine with a many to one correspondence and so the court declined to go further than the parties had asked it to but the court did say that the word respectively connotes more than a loose association of two groups of things and that's what we're saying here it needs each distributed device respectively represents itself as a nasty vise tented just just to close the loop on so a page thirteen of the board's opinion where it has blocked and indented quote about how patent owner construction intentionally reached out the embodiments covering a fabric and a server system implementation the quote is from page four  dollars which is your hand on a response where what you are saying is that the claim doesn't cover the you know deal with it as a single now ask advice that doesn't or does it  using the board has misinterpreted this this quote could correct there's a little bit of confusion here because there is a passing reference in the specification this is at the bottom of column forty t and eighty there's a passing reference in the specification to a nasa component that brings its resources to the network with the appearance of a dedicated naz device or as part of an integrated system that appears as a single or dedicated ask advice that description to the extent you call that an embodiment our position is that is excluded because of the word respectively and we pointed out in our papers that the giving the word respectively effect would exclude that description of an integrated system that appears as a single or dedicated naz device i think what's described here is a separate e think this is not the naz fabric and i think that's what the board thought that this that our statement that this was not covered by construction was an admission that the fabric embodiment was not covered by the instruction but these two things are not equivalent and so i think that was you today this is the at the bottom of column forty two i would say this is something like carter or ocean store where the user device sees a single shared memory and then underlying the shared memory underneath a layer of abstraction there are these individual distributed devices mimicking naz devices and i know that i'm out of time but if i could say one thing about that point  is the nodes are making their storage available to other nodes that's true there mimicking naz devices and that's all the board found but in order to satisfy that representing limitation there's a further step that's require the nodes have to also represent to the user devices which in carter might be to each other that hey i am an as device with an available amount of storage but that's not what the user devices see and carter if you turn to f on the left side and then a c n n and then that's the virtual shared memory space and then underlying that virtual shared space are all the individual knows that together are contributing notices see each other in the kind in the context that we're talking about that's what they're seeing they're seeing this shared storage space they're not communicating they're making storage available and that's what joe's way if you look at that that a direct connection between two nodes over which a request there can be a memory transaction i  believe in that and figure eleven those those two boxes on the top of the top left and top right are the global address spaces and so this isn't a in the f the nodes are directly accessing storage on each other instead they're accessing when these nodes need storage they look into the st wall address that's how the nodes find great but that's why it appears to be the interesting that there is two hundred and fifty four direct connection that doesn't run through the thing in the center i don't think that's that but i understand what you're saying but i i don't believe it's three thousand four hundred and sixteen just close to fifty for the network right i don't think that the best interpretation of this figure as you said the the discussion in the reference itself is not particularly illuminating and i don't think that info when it comes to addressable shared memory space discussion in this reference isn't that just an abstraction that's made up of the individual memories of the different nodes that's current you're not going to some separate physical location where there is some data warehouse it's really more your dipping and do each respective nodes own hard disk that's right but the user device isn't seeing what's going on there locating their their information and say that a drive letter shared memory and that doesn't necessarily have to go i mean if if node a the data is in the hard disk of node be it's going to go to no deed to get that that data in carter though there's no disclosure that no date goes directly to node be as opposed to some internal disputes that but it doesn't follow from that that the nodes directly connect to each other and see each other as individual and as an advisor mischance question how else would it work because that the connection does not have to be direct it could be routed through other nodes sort of how it's described and ocean store for example so that if the if if the resource you want is in a particular location that resource  moved to a different location and fetched there that's correct and they then the corner and that is that ace correct and the nose and carter would not know or care that this that the information has been physically moved to a you can you to read it or write it and and the connection can be indirect and either in either scenario and i would just i would note though again that this is precisely how the mc described carter in their that's how the system works and it's different from how the they to seven am to rest but i did interrupt you said you had one little thing you helpless little ok i know that with all this discussion that we just had was to essentially  that the board the board didn't find that carter and ocean store nodes represent themselves to the user devices now as devices and found that the nodes mimic as devices which is not enough under our construction