still alive ok claim to it is one that adds the parallel pipeline limitation there is no dispute that discloses and figure for a pipeline system where it moves from left to right from the various stages of  going from the address handler to the cell rather to the cell police or there is no debate that that's a pipeline system the only question below is whether that was operating in parallel the board did not find that it was not operating in parallel the board simply said we don't see the words in parallel or anything that effect we don't see an explicit disclosure which doesn't answer the question the question is whether one skilled in the art reading do we as a whole would understand that that pipeline system was operating i when packet one moved from stage one the stage to that the system was operating on packet one in stage two at the same time as the system was operating on packet two in stage one that's the question and that real time meaning those packets are flowing through not going through one packet and then waiting until full processing and then sending the other packet but they are flowing in real time and that question is also  recall in three selling the tell you that there's a stream of cells going through at the cell input rick and that answers the question as to whether in fact those cells are progressing through that pipeline and being operated on in parallel if they're an expert interpretation of one skilled in the art of how something is operating in real time meaning those things are flowing through beyond that if you think twenty four of twenty four or four is where we sighted at the testimony itself as a seven hundred eighty eight eighty nine beyond that we cited the prior long reference called kogi k o g g e which is at thirty two ninety eight that was in one nine hundred eighty one treatise establishing that was well recognized in the art long before this time that fact the flow through those stages in a pipeline system would as cokie said just be limited to the rate at which is fed into the input so it's flowing through operating on stage two at the same time they're operating on a different packet in stage one that is in parallel so the boards refusal to find that huey satisfied the parallel limitation simply because it didn't use the words was it failure of the board to recognize the import of the child testimony and the code you reference the gobi reference for not using as a combination really using it to show how one skilled in the art would understood the operation of detailed in the record this is is not that i think anything turns on whether or not this is just a normal employment assignment because i think this court's case was very clear that that is sufficient i suppose it could be characterized this way but i think that there was more going on there but i think again i think that if you look at the points of the record that we've articulated you'll see that they were very compensated by cisco for the inventions that they assign to cisco and then they went off and found it a risk to an of the in response to limitation as merely requiring a sequential rather than a causal relationship second the board's failure to require that the alleged access control patterns actually be used for access control and third it you won't see us asking for one under the heading of claim construction please construe this term the following way but i think this is exactly like with this keep this court recently addressed in h t c vs selling your cellular communications it's seventy seven f third at thirteen sixty seven which came down in december and it's just like the issue that was in busy zero versus i t c which is where you have the board engaging in an implied construction yes they may have been set up in the context of arguing non infringement and that's exactly what was an issue in visit you and the majority there over the dissent said no this still presents an issue of claim instruction and to be clear there's no doubt that this issue was teed up and that the board understood that the issue went to absolutely so for fundamental reasons chief judge approached because if you agree that it requires causation there is no causation here between what the board is treating as the v c twenty excuse me appendix twenty six and appendix twenty seven it is where the board is addressing this issue and the alleged the the the the address is used to make a match are not required to also generate the access result now what that mean in this this is important the receiving p addresses are what are being treated as the access control it is then this is happening is that packets with the exact same v c v p headers that is whether they have that they have the exact same match those packets will be treated differently in the cell police or some being discarded and some not based on a traffic contract that has nothing to do with whether or not there is a v c v p three match to put it differently what's happening here just to give an example it's as if i go to a movie theater i buy a ticket they look at the ticket they see it's a match for the theater i go into the theater halfway through the theater i start talking they ask me to leave the reason i'm being asked to leave is is that kind of what the order is kind of this that i think that is the way that the board is approaching this and to be sure buying the ticket and being admitted to the theater necessarily precedes the decision but the decision that is then being made it does not turn on and yes i wouldn't be there if i hadn't bought the ticket but the decision being made to to kick me out of the theatre is just like with the  making a decision that in no way shape or form turns on the match and again the best way to understand that is that you can have packets that would have an absolutely identical match and they are being treated differently for reasons that have nothing to do with the match and that is entirely what the decision is and what that feeds into my second argument which is that the the at the alleged access control pattern here the v c v p heading it's not being used for access control it in and in fact aristos response on appeal isn't to isn't to defend the board's rationale other than to say that the term access control pattern encompasses quote any string of bits stored in the  page twenty seven of the yellow brick that makes up to that limitation absolutely meaningless and that is exactly what we argued below it could not be appendix fifteen sixty nine so it's a fifteen seventy that's like reading the thumb out of thumbs which in  what decides of the packets being filtered out and that's the problem that what the patent contemplates and what's very clear is that it is the situation and if you look at column two one thirty three thirty five the match is from the information in the packet header that's what's used to enforce access control if there's a match and it could be set up either way a match could be to include a match to executed but let's just use that for for inclusion for a moment if there is a match then you should be admitted you shouldn't be discarded end of decision but that's not what happens in that if the assert in the asserted prior art you have a match and then there is a separate discard decision that is in no way shape or form related to and doesn't turn on what the er isn't the type of thing that's being used for access control is literally just being used for a traditional type of routing decision and if the header if there is an inconsistency is the header it doesn't know where to go back going well only in the sense that the system if you don't match the v c v p having the system doesn't know what to do with you it doesn't know how to route you and so therefore it gets before gets discarded because you're not on the virtual path that you're supposed to be on that's that's what's going on but that's not what they are relying on for the access decision the access decision they rely on the cell police or the self police relies on a traffic contract i have you exceeded your bandwidth and you sent too much data and if so you exact same match it's treated differently so for that reason for that for those reasons the court should absolutely reverse and and remain in this this issue which was squarely teed up before the board again if you look at appendix thirty seven twenty two now our final argument on this is that the board's failure to require the relevant steps of the five seven seven patent to be conducted in hardware cannot be reconciled with the pan itself this is analogous to the decision this court had before inverness you have the title of the abstract you have every environment that requires hardware processing of a c l and hardware enforcement of access control and you have repeated disparagement of any use of software for these features and those are the exactly the kind of him to see that this court and his well i've actually that there's an important point there judge chen the argument that arista made below was that the only thing that had to be done in hardware was the maintaining not even the matching and the board relied on that as well that's it appendix twenty five you can see that in a wrist of the wrist as argument below was at twenty three ninety five now on appeal they've conceded that while the to the matching in hardware any more than any of the the other stuff yet they recognized implicitly that it would make no sense in the invention wouldn't work if the matching wasn't being done in the in the hardware but that was a point that they contested below and that the board went when a different way on below and that alone should get give give you remain i think the other point here is that the patent specifically and repeatedly disparages any use of software and that's both for the processing and the enforcement and if you look at column two in particular if you look at that there are three different passages one in line three one in line fourteen and one in line forty seven and each one of those talks about the prior art still having the drawback of using software or requiring at least some software enforcement and that the invention permits are denies access without the need for software processing and these kinds of repeated distinctions and disparagement are exactly what this court in pacing technologies at appendix thirty two to thirty three rejecting the argument that column eight discloses parallel actions given that i'm in to my rebuttal time and given that the issues that i am arguing would would supersede and address claim to as well i think i'd rather save the rest of my time for rebuttal thank i'd like to begin with the hardware issue for me the hardware issue is their position now is that all steps of the method and all parts of the apparatus must be performed in hardware that was not their position below is also what the claim sets the claim specifically says that one part has to be done in hardware that's that maintaining and matching step that's the cam that's where the a c l this look up and matches are done that is in hardware in the claim nowhere does the claim say anything else has to be in hardware and that omission i q's i propose should be dispositive where the claim says x is in hardware if it is silent that's never the end of the plane construction and it never is the end of the exercise it ought to be the point when you look at every step where they're criticizing software and if you look at the sites columns three fourteen and forty seven lines three fourteen and forty seven call into every single one of those is talking about the a c l look up matching process l process and that's the pan so there is no question at all that the central focus of this invention was on doing that step in harder because the cam allows you to match up thousands of entries quickly were software does not but a step of taking the output of that and making a go no go decision that's not the same thing as is this very complicated nature that a cam is required for and the specification nowhere says and so special special occasions claim or argument a was not able oh let's be very clear about that the board in fact said so it was not made below now they're trying to make it here it has a very very high burden if you allow them to make it here the question is say does the question of this is just a cation read as a whole amount to such a disclaimer every time the criticizing software it's about the a c l matching step the seal processing step that's the part the criticizing and that's the part they put in the claim so those those are consistent they do not support the broader disclaimer that other steps also have to be done in hardware and that and if there's any question about this what they're trying to say is there are portions of the specification of say we can eliminate the need for software processing undeniably true software processing of those apples in step two which is matching now if there's any question that they're wrong that that means that that amounts to a disclaimer about all and the bottom of column for says it's some cases you may want to have additional software process on and it says the higher level processor specifies whether the packet one thirty after processing by the higher level processor is forwarded to a selected out response to and happy to do so in response to the issue really then comes down to does in response to require that it be specifically specifically generating the result and that's not what the claim sets the claim has and the board nailed this one and with really specific reason they made exactly the same argument below that they're making here that it had to be that or what is sent is quote an indicator so it's not the address there telling exactly the same thing but you are sending something that is the result of the math but not the magic stuff the argument that is being made to you here is that huey doesn't satisfy the claim because the v p v c i address does not then be forwarded to the police or who uses that address to make a decision based on the content of that address that's the argument is being made forwarded or the packet is dropped or the packet is forward to the processor for for the process that's it doesn't send the address of their argument to you here was that address has to be used as you are they made to the board and that that huey is very consistent with calling for is the address itself is not sent and in response to is clearly true there is in response to the fact of the match if and the boys reasoning here i think is perfect if that match had not been made that decision would not be made it is clearly relevant in a but for sense but it's also not just a random but for sense of it's purposeful architecture is that match determines whether it's sent to the police or not that's the purpose of sending that match is to allow the police or them to make the decision which is exactly the same purpose in the clay factories you decide which in huey it's the basis of what information is sent in that in its indicator if you will ut i don't know but i don't think that is relevant to the question the question is does it make that decision in response to the fact that it's sent to the whole point it's not just it's not a random effect it's  not accidental effect it's a designed architected effect the purpose of that matching step is to send it to ship to the huey cell police are for the purpose of making that decision that is its purpose so it's not as i say accidental and it's not unconnected that's the structural design and i think that's important to understand because that takes it away from their argument that it's just a happenstance it has no connection to it that's clearly false over here so with regard to i do want to make one additional point that there is substantial evidence to support the board's finding even under cisco's new construction and that's because there's no dispute that she teaches the case that a camper forms maintaining a matching steps or that were done with that so the question is really the self police are and the quote and the question is is the self police or hardware or not so this is the ghost of the hardware issue is part of the court that's hardware both experts say we can't tell whether it would be hard on hardware software from huey itself it could be either both experts knowledge that and there were specific teachings in timely prior i triple the articles that we cited to the board saying you would want to do hardware because it's fast cheap and simple exactly the reasons was that it wasn't done in the camp they were arguing that the police or had to be done as part of hard work separate that's a new argument here the argument there was quite different so it's not one of these hidden kind construction i chief judge post under the last point that my colleague was making just just to be clear if you look at this court's decision and mentor graphics of fifty f third thirteen seventy six it rejects the notion that the assigner had to be involved in developing the allegedly infringing features in order for signer software to apply and there's no currency to so that argument now turning to the sort of the hardware arguments the first there are no alternative grounds for a firm and so that could be done here the issues that my colleague was talking about were disputed but appendix sixteen sixty seven to sixteen seventy our expert address that issue appendix twenty five eight now addressing the hardware issue the hardware issues that mr power started with first there's no wa iver here let's be clear in the reply below that they understood what our argument was if you look at appendix twenty three ninety five they argued quote contrary to cisco's contention not every step of the challenge claims must be performed in hardware rather than software that argument was clearly teed up and the border understood at appendix twenty four it said we argued that quote the claims are limited to forming access control in hardware vs software second the so much of the argument today t powers has made is about the matching step taking place in hardware well that's not what they argued below below they argued that the only thing that had to be in hardware was the maintaining stuff and i encourage you to look at appendix twenty three ninety five or they said quote the only hardware element required for any step is the associate of memory that is used for maintaining a set of access control patterns the board relied on this if you look at appendix twenty five the board didn't require that the matching take place in hardware but we're hearing today and rightly so that at least the matching has to take place in hardware and given that salute that it's a reason that a minimum to remain in terms of new arguments we heard a very new argument today based on column five of the pattern that's not an argument that the arista made in its brief the column five discloses the processing take place in software and that's not what's going on if you look at the passage at the top of column five this is talking about additional processing that could be done after clear after the elements of the claim are satisfied this is saying there are more things that you could potentially do that are being disclosed here nothing that's here at the top of column five goes to the claimed elements themselves fact that there has been a match and the that the fact there's many matches what tells you what to do that is not what you would sell police or does it doesn't take it's action based on the fact that there's been a match thank you thank you