correct ok all right mr fisher oh you have fifteen minutes ok so let's start with mr powers here please the court i'd like to begin if i may with the claim construction issue on the five three seven the crank destruction issue presented is whether the claim language that was added at the end of the very like the prosecution successfully in order to avoid prior art requires both the storage in the sample database of configuration data which the commission found and also the commands that produced that data which the commission did arista presented this question as the claim requires either configuration data or commands whatnot but that's false we specifically said that the claims elsewhere require the storage  configuration data so there's no dispute that configuration data is required to be stored in that central database the question is whether it was the language that we're funny to hear on appeal also requires the storage of the  that is the issue and so the commission i think in appropriately for it followed the framing that cisco adopted and said well look at all the evidence in the specification that require storage of the data that's what we're going to find is require support that is not the dispute at risk that is not disputed that the claims require storage of configuration data that's required by other claim like which explicitly what's not what the issue here is whether the commands also must be stored there are three sources of support for that position first is the claim language cisco argues that we require that we're relying on highly technical rules of grammar and but they don't dispute that the correct reading of the claims using appropriate rules of grammar supports our position they're wrong though in arguing that we're relying exclusively on what is the rule of grammar and the proximity of the exactly exactly and truckin white would say that argument is if we should be relying on the rules of grammar but they don't dispute that the op that the rules of grammar provide that they are reading of the claim is appropriate but it's we're not relying as cisco implies simply on the correct reading of the rules of the claims the specification of the file history also specifically support the position cisco's brief aggressively takes the position that the specification nowhere supports the idea that the commands are stored in the central database and they argue that the two places in the specification that we point to are merely discussing the prior art not true in the five three seven pattern itself a call into lines well it doesn't say that that database stores the commands it merely says it receives the commands to which they have no response though to the argument that that's exactly what a state of base does is store and there's no other purpose for it to be sent to that database other than for storage that's what databases do and so cisco's argument is then i think devolves down to something which is essentially were picking words but not nit picking the technology that that knowledge is that database receives those commands and that and that's what they debases do a store that's commands but not just five three seven a call into the seven five two patent which was a quarter for right by reference specifically for the functioning of the i think quite clear the prosecution history is if anything more clear so the prosecution history i'd like to walk through if i may in a little more detail than normal because it's a lost of and i think cisco's description of it is m so that's the argument that this part of the language was at and that was that argument made by cisco when the plain language was at the patent office then did not accept that argument they still maintain the rejection that is in appendix fifteen and thirty seven and specifically the patent office said at fifteen thirty nine quote it is noted that applicant has made no attempt to show why each and every amendment made to the claims have any sort of patentable novelty a debate about whether it taught the commands and a debate about whether it taught configuration data and a debate about whether what was either or not equivalent to a command was stored in the database these are all three arguments that were made the argument about the configuration data was not therefore i think it's obvious that conclusions at fifteen forty two could do that i'd p c find that system does not keep commands at all when it was stored on cisco on there was a debate about that question and the commission i don't think that far on that question is that what the debate was in the final history because we're not talking about that if we find that that is the case and that undermines your your argument to make it you know because they made both arguments making the argument about configuration data which is the argument they now claim won the day they said well the exam are partially addressed r r m n but by responding to the configuration data but not the whole thing and then says cisco one fails to disclose teach or otherwise suggest executing configuration commands before storing them in the database close call them so whatever seventeen if it doesn't teach commands and it doesn't matter which were not true but they had both argument they're making both arguments as well but but work with the argument that we're talking about is not whether scott really did or did not anticipate or make right or obvious what we're talking about is the understanding of the examiner and the applicant at the time about what the anyway other than an admission that storing commands as required by the claims because he said cisco on fails to disclose teacher otherwise suggest executing configuration commands before storing them in a database that i and here i think there is no room for ambiguity left in light of that statement by the exam or whatever sisko undisclosed because it was explicitly making the arguments of the commands needed to be stored and the second role the prosecution history can play which you don't need to reach here but his appeal is applicable here is disclaimer even if it didn't require it when you explicitly get around prior art successfully you are not allowed then to say that that limitation doesn't apply i don't want to want to let you don't believe the issues relevant at all obviously answer the question it's not really to claim destruction of the other questions there was a debate about where whether the importation of blank switches without the software was done for this purpose there was evidence on that from both sides i so i know that i didn't do the i g s acase below i know that was a disputed question i cannot point you to the evidence on the other side ok let's let's move on to some of the other issues what about the scope of the limited exclusion yes we think we can a component of thank you very much like to turn to that i think there's two questions that are very important for the court to address on that question the first is addressed to question and the second issue is it is a question of the proper role scop requirements for both contributory and inducement infringement allegations in the i t c and both of those i think require a decision by the court with regard to the jurisdiction question i really think there's only two issues here there's i don't think there's a meaningful debate that an act of infringement is required to invoke the the exclusionary power of the i t c that is clear from the statute and i think seriously dispute what is disputed i think here are two things commission made reversible error legal error was it had an exclusion order as two components which had not been found to in french it's pacifically did not make a finding of infringement that importation of the components our point is that those are two paths that that are no longer relevant or not part of this appeal but there were findings there that's the whole point as to the two p p p land patents the commission made explicit findings with regard to the components as to the components on this  patent five three seven the commission explicitly said it did not reach that question cisco tries to make a bootstrap argument that it's sort of made that it made a finding by saying it could reach the components based on the finding of infringement of the whole switch and the blanks the other cases no because the we've made a statement on the exclusion order we've had proceedings in the customs office and everything else we have a customs letter saying we can go ahead and import there's no restriction at all but the and border patrol decision was the removal that makes it a not infringing good that a result of a custom of ruling because after exactly in there and that that i think is not at issue here either but so so those can be important for those for those purposes so i don't so the first issue that cisco raises that there really was a sort of subsequent c e o finding that doesn't stand the second argument it relies on fiscal fan primarily and says that the i t c can has why as wide flexibility in there's a factory over in spain and they used to trade secrets we can't tell here whether the trace it was are being used or not so it's not like a patent claim we can assess it at the border and the side doesn't fringe or not and they said and they looked  there's extensive debate and the issue was expressly joined a biscuit fan that said week that the remedy for a principle violation is different from a remedy for patent the remedy for a trade secret violation is typically a complete ban on sale or in this case importation for a period that we decide within long enough for that we've taken you to develop that technology without using the traits of us ok let's move on to the next argument u  did they have any business reasoning for changing their importation practices the commission at appendix five eighteen found that they did not following the appendix six seventy six and that issue is directly relevant because it got alternately goes to the issue of remedy and in particular it's relevant to the issue of remedy because it's relevant to whether or not there's a circumvention of the itc's authority both in terms of when the case was being tried and potentially  which induce infringement i think when you look at the commission's opinion as a whole you look at its adoption at appendix five zero seven of the male j's findings and you look at the fact that it found that the exact same components induced infringement of the two incorporating the exact same reasoning by reference in terms of state of mind and inducement both with respect to the change in importation practices and with respect to the point of since there was no finding of that the components of french in fact found that there was a corporate culture of copying that there was induced infringement that was evidenced by the change in importation practices and the commission adopted that with respect to the patton they were talking about the five three seven patent and incorporated by reference that very same reasoning with respect to the two v land patents for which they have not appealed and also note that the commission in its opinion specifically distinguishes between capital b blank capital s switches and the switch switch hardware switch hardware being a term that was used by the ala j as referring to the individual components and you can see that appendix sixty two so i don't think you can fairly read the commission's opinion as not finding inducement with the components but even if you did then you would have before the court the question of the scope of the itc's remedial authority and the position that's being advocated by arista raises frankly some of the very same  identified in your dissent in the original panel decision in supremacy and i think that the on boxer perma decision ultimately addresses which is that it would turn the commission into a paper tiger if somebody can simply walk up to the border with a device break it into two ongoing foresman proceeding in front of the commission with respect to the five three whether or not this is a successful design around with respect to the five three seven patent that issue is being litigated before the commission but for the moment customs and border patrol have  issued an order that is allowing them to import not just components but assembled switches and that issue with respect to the five three seven it's not being contested on the deal and this is currently before the ail day in and force me proceeding now i'd like to turn back to the issue of the interpretation of the five three seven a judgment i think you asked the key question here because the issue is whether or not cisco on top commands at all and that is exactly what the entire back and forth with the examiner was all about and there's really a trilogy here in the prosecution history it's all in volume three it's a pages appendix fifteen twenty one fifteen thirty nine and fifteen sixty four to sixty five and when you walk through the back and forth between between cisco and the examiner you see that the entire issue is whether or not the data that cisco was claiming data derived from executed user supplied commands was the same as the data that was derived from the structures at cisco on and so if you look for example if fifteen or twenty one the argument that was made is  does not teach router configuration data this is again the router configuration data as stored in a database and further on fifteen twenty one the the argument was that the router configuration data is data that results from  router configuration module executing configuration commands issued by user that's fifteen twenty one of volume three this is the same time in which the the claim language that we're talking about is introduced and that claim language never changes there's no subsequent amendment to the claim language now the examiner does not appreciate cisco's argument and doesn't understand the distinction that's being drawn between data derived from user command this this gun doesn't teach wherein the router configuration is derived from configuration commands provided by the user and he says this con does disclose this limitation so that brings us to fifteen sixty four sixty five and the things that arista relies so heavily on and you have this prefatory paragraph on fifteen sixty four and yes it does have the language that arista quotes over and over that says suse conn fails to disclose teach or otherwise just executing figuration commands befor storing them in a database what is being said here is it's before storing the executed configuration commands and i realize it's not very artfully written but when you read the very next paragraph it then begins specifically and the prosecuting attorney then explains in the next three paragraphs of what exactly was meant by this statement and it's not at all about storing configuration commands he says  and then you look at fifteen sixty five it makes the point that the structures here referring to cisco on are not commands i e user supplied commands makes the point that this is not in the stone fifteen sixty five this is not equivalent to executing a command that configures a router and then the bottom paragraph sixteen fifteen sixty five finally there is no disclosure teaching or suggestion insist on that execution of a user supplied configuration commands result in configuration data that is stored in a database so it was always about whether or not the data derived from configuration commands was the same thing that the data was at issue at cis commission didn't reach and that is whether or not even under aristos construction there would still be infringement because the data is the executed configuration commands so the configuration commands are executed that result in data the data is the executed configuration commands and that is what is in fact stored and to try to take this one sentence in isolation as as a as a risk a does and says oh well that must necessarily mean that it is the commands as opposed to the date of it's being stored that's exam actually what this court recently said in mit vs shire that you can't do that you know you have to look at the squad selected sentence in the context of the entire response and as this court said  at eleven twenty eight thirty nine f third eleven twenty quote even if an isolated statement appears to disclaim subject matter the prosecution history as a whole may demonstrate that the pantie committed no clear and unmistakable disclaimer and this court made a similar point recently and tried vascular vs saniel c twelve f third at ten sixty five and that's what you have here when you look at this prosecution history there's no disclaimer this isn't there's no back and forth about command and this is alternately confirmed by the notice of allowance at fifty nine three where the examiner now understands that and this is what the whole issue was that you could now have a centralized database to extremely managed router configuration data derived from configuration commands supplied by user so it's all about those the data being derived from the commands and that that was distinguished from the prior art this is entirely consistent of course with the pat specification indeed if you look at the if you look at the title the abstract the summary of the invention all of the examples everything in this patent is about storing data not commands storing and then extremely managing the data and in fact if you look at the first clause of claim nineteen element c it talks about having a database that is that is configured to do what to stor reading aristos reading is the more now reading of this clang clang line which in context when you look at it in the overall context of the claim and you look at it in particular in the overall context of the specification i think it is  i think the court can take judicial notice of that but but certainly it's not a tool for how you read a document that has already been written and this court has made clear repeatedly whether it's all the way back in the  say that you look at claims against the best evidence and the best evidence is the specification and if you look at column we made this point our brief column eight lines forty six to fifty three the language that you find a column eight points about the five nine seven so that i have something to then say on rebuttal because that is of course is is our cross appeal and first let me be clear i think the issue before the court is a question of law there's no dispute about what the products do it's just an issue of applying the claim construction to the undisputed facts and the undisputed facts are that a recess arista has a an element of its software that will stop start and restart agents based on certain information being received the only question it's whether takes those actions based on detecting a change now its own documents says that it does if you look at appendix fourteen one seventy two when i walk you away from your there's really a dispute about how aristos systems operate i think the dispute is whether or not that that rises to the level of being detecting and in particular if you look at appendix fourteen one seventy two that's quoted at page seventy five of our read brief this is in the in the public record it says the process manager detects process exit and starts a new agent and there's a similar point at appendix fourteen  three seventy nine and it's part of the confidential record at page seventy four of our read brief but if you look at the sentence that's underlined there you see again a demonstration about what they say their own systems do there the whole argument that the that the administrative law judge went off on it which the commission then adopted was the idea that reasoning by inference was not on nuff and we submit it's certainly within the plain meaning of the tact to in something they're not synonyms and inferring is by detecting by inferring is a subset and we have some examples of how that works in our brief but i would encourage the court to look at the examples found in figures ten and eleven of the five nine seven patent because what you will see is that both examples show conclude that had both examples involve concluding that he device is untrustworthy based on what based on timing out of not receiving either a log report or a heartbeat and you can see that column fourteen line forty five with respect to figure ten fifteen line fifty with respect to figure eleven this is exactly what we're talking the arista system and i think that if you look at the way that the five nine seven patent gives examples about what it means to detect that certainly the limitation should be met here i see my time has expired and with the court thank you judge wright ok court i would first like to address the component issue arista is an educated infringer changed his importation practice with respect to its infringing switches to try to evade relief the commission found that the switches infringed the five three seven patent the commission found that the importation to customers regardless of the manner in which the switches are broken down for importation  are broken down for importation the commission has broad discretion in fashioning the scope form and extent of its remedies as long as a remedy has a reasonable relationship to the unlawful processes that have been found to exist discretion in determining the scope of that remedy here the components imported by arista are used to make the infringing switch so you're asking us to look at the i t c decision as a whole and five twenty eight i think it's income fest within the commission's analysis on this page the commission here talks about the switch hardware earlier and its opinion it also refers to the switch hardware a here switch hardware has been defined to include the components and so if you look at the context from five a letter a p p x five eleven there is a commission use of switch hardware it's clear that it refers to the components but regardless of whether or not the commission found that these specific components induce infringement the commission's remedial authority to stop the circumvention p x five twenty yeah yeah that was the pave you were just talking about about the commission's opinion makes explicit findings on components components are included within the contributory infringement explicit findings as to the components because krista had during the course of the investigation had a pattern of conduct of changing what it was importing and it leads to the question of if we adopt a wrist as approach every time they responded changes their importation practice whether they take off one component import it and then reassemble that we have to make the new finding says if the commission if arista attempts to circumvent commission remedy by importing only the components of the q s products for reassembly into complete functional switches it would still be in violation because it finds the blanks which is in the important importation practice the commission believes that the language of the claims is clear even if the court doesn't agree with that the case law is clear that you look to the context of the claims here that is the specification the other limitations the other claims as well as the prosecution history and nowhere does this specification teach storage of commands yes it as mr power stated its teaching it teaches configuration data that is stored the prosecutor turning to the prosecution history and the office action at issue i would like to walk the court through this office action just like mr power results in configuration of data that is stored in a database to arrive at this point is absent directly responded to the examiners rejection and used the term specifically as it addressed the columns and lines of the examiner relied on to reject these claims and the applicant at the top of fifteen sixty five explains that there are no commands and cisco on after that in the very next paragraph it explains that this and that of the data structures and then finally in that last paragraph the user talks about what is stored and just like the specification there's no real discussion of storage other than this paragraph in the one sentence taken out of context that arista relies on and in this sentence the apple can express lee says there is no disclosure chichen or suggestion insist on that the execution abuser supplied configuration resulting configuration data that is stored in a database that is talking about what is stored here and the them in the sentence at issue that a restore relies on must be the configuration data that's what the rest of this office action is talking about it's how that configuration data is derived in the storage of that data the commission smits at the claim specification and prosecution history are clear that what is stored in the database is a rather configuration data if there are no further questions an issue this issue i accept the conclusion here that is the case cisco asserts that the commission's findings actually supported position but this is not so this is the commission found that the first and second mechanisms most infer whether an agent is operated by relying on the testimony of dr duda in two other documents i'm not going to go into the evidence that the commission relied on because it's on the confidential record your honor but this evidence supports the commission's determination that this is not a changing configuration as defined as construed by the commission and turning to the other two mechanisms at issue i would like to point out most of this is also on the confidential record so i'm going to leave it to mr powers to  configuration but instead is detecting something else and the evidence that the commission relies on which is testimony that is found at a p p x one one two eight eight through page thousand as well as six zero six eight all demonstrates that this third mechanism at issue is not detecting a change in configuration of and the subsystem but instead is detecting the change in configuration of something else here cisco takes snippets of the document the commission relied upon out of context if you look at the entire context of this document which portions of it x fourteen three seven eight and the top of fourteen three seven nine describe exactly what is happening here and dr hollingsworth's testimony at eleven to eight through nine is in line with the commission's interpretation of this document on the issue of prosecution history or stoppel if the court has no questions on the infringement issue the commission adopted the a l j is finding that a stock to sign or stop will prevents arista from challenging whether or not the five nine seven patent is directed to patent eligible subject matter here the inventor of the five nine seven patent at cisco and later a founder of a risk stated in his assignment that he is quote he is the original first in so inventor of subject matter parent processing machine manufacturer composition of the matter or an improvement there of which is claimed in for which a patent is which is sorry and that can be found in a p p x one four two four nine this assignment didn't include a carve out for changes in the law this court and c e o s blankest said that one on one is not a threshold issue so here  i'd like to be able to thank you structure issue for the question before the court is whether the language that read naturally so requires storing of commands is sufficiently ambiguous not to require that the file history i think eliminates any possible ambiguity that statement we rely upon is simply not understandable in any other way than it then being consistent with the requirement that the commands themselves are still in the matter what system they said that they're stuck with it is not a question of disclaimer it's a question of understanding the meaning of the words they used and watching how they use those words in the file history counsel for cisco argues that well it may not have been artfully written well we think it's pretty clearly written and it's and the argument in the file history is quite clear and unmistakable counsel for cisco argues that fifty and sixty five it's all about the data fifty sixty five of the appendix the very next sentence that was fairly aggressive in saying after that snippet fifteen ninety three it says in addition we rely on applicants arguments which include the argument that ultimately won the day in addition to the rest of the plaintiff so the arguments that are made simply cannot be reconciled with the statements that the patent attorney made they then argue let's merely a snippet out of context again not so it's the culmination they tried to get the claims allowed by using the data limitation that wasn't enough xander said it's obvious then they made this argument and it wasn't it's not a step out of context it is the thing which got it allowed because that is the only new argument that was made down with regard to the i c c jurisdiction this is not a question about circumvention not and if they made a finding about that they have various ways of of voiding sort of vention of their of their orders the point is they did not make that fine they specifically said we don't need to reach it after that after going through great detail and finding in contributory to the requirement is that it actually induce infringement the fact that it may have induced p v less if it induces this inference that they're different inventions that he must prove it and find it that's necessary to their jurisdiction as to five nine seven process to start running but that is not a change of state of configuration or state under the under the plant construction the commission used which cisco has not challenged that commission finds the configuration changes or limits of those in the five vendors of about the legal question of whether that's eligible subject matter you can read that oath ten times and it will be there so the stock requires a representation and reliance neither is present here it's a legal question  and you have to remember thank you again joe duran i haven't answered any questions the court may have but otherwise i'll just address the five nine seven issues on rebuttal first just so it's clear to the court the commissions we in the commission are in one if you look at appendix five thirty seven the commission found that the change in state of certain things is equivalent to a change in configuration and there's no question there's really no dispute that there is a change in state with respect to recess systems operate and again you know if you look at the evidence at appendix ten three thirty six to three thirty eight there's a combination of certain features that work together to directly detect that an agent is no longer running that is a change in state similarly if you look at appendix fourteen one seventy two and some of this is confidential so i won't i won't discuss the details of that but it all confirm our position and indeed the whole argument that arista made to the male j which the l g did not adopt was that there was no change in configuration that a change in state was not the same as a change in configuration they'll say then for the first time  adopt this approach to detecting saying that detecting doesn't include inferring but of course you know the plain meaning of detecting does include the term inferring and six if there's any doubt about that and you heard what mr power s said about him about reasoning by inference or via assumptions not being enough that's been lied to by the examples that are found at a figure ten and figure eleven of the five nine seven patent and ultimately it's really no surprise shouldn't be a surprise that result a the switches would have these patented features given the i t c is finding that arista has a corporate culture of copying cisco as well as the fact that this technology