because i have a motion to make i'm going to have to turn the gavel over to the judge while this morning for the first part of the morning please proceed i have the privilege of moving the admission of glen and he's a member of the bar and is in good standing with his new york and new jersey i have knowledge of his credentials and i'm satisfied that he possesses the necessary qualifications  in fact i have intimate knowledge of his credentials because he has been my law clerk for the last year he has almost too many degrees but but that was a pretty that was a benefit to me he  graduate of the college of new jersey honors college where he had a b s in biology he has an m d from rocker's new jersey medical school and a law degree from brooker's school of law he did all of those with great distinction and he has served me with great distinction after having fit both a practicing doctor and a practicing lawyer so i've had the privilege of getting to know him and getting to know his beautiful family his wife jew and daughter gloria are here with us today too i'm sure gloria will never forget this moment but at least i hope glenn will never forget this moment so with all of those credentials i moved his admission and i have a few questions you're most in this group but i should say that despite the fact that he's now being sworn into the to the bar that he actually had his first appearance before the court yesterday because we had a pro se applicant who could not speak english and and two submitted cases the first of the arcade cases is docket number one five one seven one nine net app inc versus electronics and telecom it is an appeal from the my name is peter khan and i represent that are in this case your honors there are three independent reasons why the board's decision in this case should be reversed first the board committed legal error in construing the claim term raid to require a system which for big still wrecked access between the host computers on one hand and the disks of the raid on the other and where that limitation does nowhere here and has no support in the intrinsic evidence as no and the only have single logical union yes right then on the application side not a claim construction site pretty sure this is the way it was presented by dr conti in evidence standard would apply so i'm not quite sure you're right and say that the direct access was a piece of the kind construction as this court ruled in the restaurant execution which just issued last week an application of the claim construction which adds a further limitation to the construction in other words of construction of the construction is it something clean construction and that's exactly what happened here or why why is that what what happened i mean the claim construction was done  as i understand it on the theory that the in the intrinsic evidence doesn't tell us a whole lot so you have to look to what people in the are in the extra patent world would understand the term to mean we think the board said it means a single logical unit and then in applying it said you don't have a single logical unit the way an expert would testify at a trial at the application stage after kind construction as there is none to say as long as the host is able to get separate disk access and he use your separate as a form as a word like direct then it's not a single logical file there's nothing in the phrase single logical unit which implies or talks about that direct or separate access that's what that's when experts do in testifying about the application of a term that has been construed they say you know if i direct access that's nowhere in there in the testimonial record that's why the board simply cited two attorneys argument in support of this construction but it was again i mean i have to agree with just trying to that there is a distinction between that that that given a single logical unit construction and what that must mean that this doesn't anticipate because of that indirect person's direct analysis so no runner up to that point there is no evidence in indirectly through the controllers in the middle and so half were does forbidden exactly the kind of direct access that the board said has to be forbidden in the system and so the board's decision on that on that issue doesn't stand up to substantial evidence but the gets separate access to each disk drive and there may be a door in front of it quality disk pacific controller but it's the one that gets to decide if that is entitle to decide that the host wants to send something to a disk and that's one of the problems with this application of this construction in that the patent itself the three four six patent has that structure has that has exactly that the patent itself requires in the claim direct access between the hosts and the controllers and so what the board has done is come up with an inconsistent logically fallacious atlas kishen of its construction to where the claim in the patent and so is that structure where it's no weight so are you arguing that access between the hosts and the desks and the board found that happen does not for bid that read access if the direct access means it can go via or through the controllers to get to the host the host has no weight of address which separate or individual disk it may want to even if it try it's up to the controller in the middle to make that determination i thought that i guess what i'm remembering you just correct me if i'm wrong you rely heavily on into either it can direct its information to that disk that particular disk again by way of the disk specific controller who or if it can direct its information to its primary controller the primary controller can do the selection and i took it your position on half the morning was that as long as that first option was available then it is teaching a raid whose point even under the claim construction adopted by by the board is is that the host isn't doing the selecting of the disk and it was the option of the primary host controller themselves which distance q in half or they have to go through the network controllers in the middle and that's why there's no individual access to disks on the disk side of half work and that's where the board's decision either doesn't stand up to substantial evidence for them or going to the point the intrinsic record here for the three four six patent does is completely ignored by the board the board should not have on the order to export evidence ignore the internet cafe and you know you say that that repeatedly that acronym as is explained her defined but it happens twice one of which was in the abstract which we know doesn't mean very much so it's out twice vacation at home or in one's eighteen says a raid is a storage system based on a large capacity and a high performance i despite my problems with that is that that expression is is sometimes definitional and sometimes not if i said a rectangle is a four sided polygon i would not be defining the rectangle i would be describing a feature of it right yes so why is this something other than that there is nothing in the three four six specification which talks about single logical you know there is nothing in this definitional language you know this is really about the point that the point is this that the only thing of informational value in the intrinsic evidence and here i mean in egypt evidence is basically that sentence and there's a version of it in the in the abstract but the board it seemed to me was perfectly entitled to say we don't know whether that's a definitional or not in order to tell whether it's definitional i'm asking myself the same question as if it said a rectangle is a four sided poly god and i need to go and find out whether outcast extra patent in the extra patent world people use persuasive at times but it's never improperly mr overspoke the extrinsic evidence in this case on this record is certainly ambiguous there is extremes of evidence that predates the prairie date of this patent which says that which has no such single logical unit limitation but why get references expressly relied on where the board says raids can be configured in many ways and only use a single unit language as an alternative and does not require it there is no d tolerance the extrinsic evidence is not only consistent with the additional limitation of single logical unit that in fact the phrase single logical unit does not appear in any of the more explicit but i mean just assume with me that i think the variants are are everywhere with the possible exception of waiting and and there is certainly evidence from dr conti the board i think was signaling some uncertainty about what the heck to make of and the board's language it's ok if you have one point and said we can't indicates this and then the second time on page nine of the opinion it said that the term might extend to certain not single logical units and ultimately why couldn't the board say we're just not really sure what to make of weight and it's the odd man out here and a skilled artist and would really quite genuinely understand that when you refer to a raid you're referring to something that is acting as a single logical unit in the particular sense that allocations inside it are something that the host is blind to so first  say in fact that we're not sure why it's talking about alternatives they just they mention it but it's council's argument that they have some uncertainty there the actual construction that is adopted says single logical unit without exception doesn't yes yes and i think that's what he other side defends it's only in i think two sentences that don't get incorporated into the formal claim construction that says well we're not so sure about whether you need to have a single logical unit if you have a combination no twice in the specification the patent expands the acronym it says that a radio is an acronym for redundant array of independent does that is not presented as a definition of the term raid and it calling out the acronyms like ram or dram i mean they tell you what they are right sometimes they do it's case by case your honor some acronyms when expanded may fully and completely indicate the meaning of that acronym to those skilled in the are and sometimes they do not in this case the acronym re does not in fact it's even misleading the words are of the word redundant from the letter r is actually optional because raid level zero is a non redundant form afraid the word independent very inexpensive is actually not correct because those of skill in the art of understand that the array can't or the us may be independent or inexpensive and in fact the de it just for disks is imprecise it actually means just drives to those skilled in the art not this so in that's true for many acronyms there are catchy there  shorthand they can be pronounced that's why they were chosen not because they present a precise definition of the term as understood by one skilled in the are can you address what you think the word and whether to be arrayed there needs to be a it needs to be a single logical unit full stop without exception or and basically as  nine it seemed to me that the board would say wait again i think one term was indicates that maybe that's not always true but that the board didn't come to a firm conclusion about that and the actual claim construction the docs at the end of the that little section of its opinion doesn't have any limitations in it and and i'm trying to figure out what to make of what the that in some sense there may be a raid that is not a single logical unit but the board credited the testimony of dr khan to the expert in this case who said i can't make sense of what that means or didn't  interface to the host it's like a black box so the host computer is look at this black box as if it were just another storage device and in fact the host computers don't know that they're that the storage device is a raid or a simple  d that is the nature of a black box and that is the nature of the rate that it presents itself as a single logical unit and that is why the board was correct to conclude that a raid is a it's a firm requirement for a raid to be a single logical unit and that is their construction and even if there were some evidence to the contrary in the record below your honour's can and should affirm under the substantial evidence standard because these are factual findings we're talking about so what do you make of column seven of how far in which sad is that storage controller can do the allocating why isn't the first way of doing it something that amounts to a rate if that were the only way to do it then perhaps that would be arra but the mere existence of the capability to directly access that second this drive a constituent disk drive of the alleged raid means that the pair of the stripes is not a single logical unit they are forty five and seven hundred forty six that's a rate is something that you can just refer to this a moment ago swap out for a single single large expensive disk is a sled without changing the interface why would if you started in a system with a single large desk and some interface between the host and the sled and you then created the hotline system why would the interface he says the idea of a raid is that if you have a single this is the sled and you get rid of it sticking to relieve the interface doesn't have to change the interface between the host and the memory system call it right  so the interface to a raid is that it's raid controller and there may be multiple raid controllers for the same array each of which presents an interface that the host computer can go through a door through which the host computer can go through there different raid controllers for the same rate it's not what the key distinction between a raid and separate logical to us is that when you have separate logical dis access the constituent just drives whereas in a raid the controllers simply access a earth that can host computer simply abscess the entirety of the single logical you know whether it's from raid controller a or raid controller b for the same way it doesn't matter and dr content is this point that you can substitute raid for a sled means that electronically the host computer just writes to or reads from one of so i thought i believe the board meant there is that the details of striving for miri are the same it's if we have not been shown evidence that the rate of this pattern of the three four six is configured in six patent that would confirm if you think it does that stripping and mirroring are pretty clearly from the intrinsic evidence not something that this patent is about well i believe what the board was saying is that what  weygand when it refers to a situation where there is not a single logical unit has in mind some combination of striking and mirroring the experts aren't sure what that combination is but some combination of striking a mirror in th things would still qualify as a rain like rate once last year exactly i believe and the board looked at the three four six patent and realized that the three four six patent talks about  rate at a high level does not distinguish between particular levels of rape does not attempt to call out specifically that particular combination of raid frayed ones last year odds are certainly doesn't exclude it i mean that's one of the shorte to analyze was an interesting point because i know you'd rather be here on appeal from that decision because it was much more fulsome but isn't the mere fact that that decision is more fulsome doesn't that present a problem for you in this case in other words we can look at that we could say oh well this is the way the board really should do its analysis but it didn't necessarily do that here no i think the second decision by the board simply underscores the fact that he reached the ri that would look allow you to draft an opinion that's perhaps tighter and more complete but that in no you know hey we had it right the first time every time i don't think we rule thirty six you always get it right the first time and that's just natural i mean that's the way things  happen if you look at the same issues the second time the important point is they reach the same conclusion on the same issue presented by two different challengers and so the word is really confident in its conclusion ok that definition of the acronym ever heard or definition of the words that defined the acronym at that point in the transcript he agreed that the expansion of the acronym is a correct definition he agreed with it later in the transcript he agreed that the portion construction as to pull out all the words i don't need to argue that every time there's an acronym that's the correct construction in this case it is the correct construction especially where it's supplemented by that further definitional or descriptive language or column one the when he says he agrees with the definitions he doesn't say anything more than that the letters are in the having accepted meaning and that's progress but he doesn't want as i said later in the transcript at twenty the issue here is counsel argued that somebody ordinary school would not understand read to have the meaning as set forth in the specification dr can't he himself certainly didn't deny that those were appropriate and so that's it that argument counsel is decision that supports a finding that that disclosure somehow avoids the claim language even as construed in other words you're o