[00:00:01] Speaker 01: We have four arguments here this morning, of which the first is number 231427, WSOU Investments Against F5. [00:00:16] Speaker 01: Mr. Ramsey. [00:00:21] Speaker 03: Good morning, Your Honors. [00:00:27] Speaker 03: Are you ready? [00:00:27] Speaker 01: Yes. [00:00:28] Speaker 03: May it please the Court [00:00:30] Speaker 03: Your honor, this appeal turns on whether the district court erred in reconstruing the term master device to require interchangeability when granting F5's motion for summary judgment. [00:00:41] Speaker 03: Razza respectfully contends that it did. [00:00:44] Speaker 03: Claim construction always starts with the claims. [00:00:47] Speaker 01: Well, can you start somewhere else, which at least in my current thinking is the biggest hurdle you have to overcome, which is what you said at various stages about this question. [00:01:04] Speaker 01: in your claim construction submissions, at least one slide, the briefs, you used language that the district court in its claim construction order seemed to be adopting as an understanding that you had suggested not only that the master device need not [00:01:33] Speaker 01: start and remain statically one of the cluster devices, not only that it, as you said, or your position now is it can change, but that in fact it can change to any of the devices in the cluster. [00:01:52] Speaker 01: And you get several bits of language indicating that you would say that it could change to any of the devices in the cluster. [00:02:02] Speaker 01: And why is that not a problem? [00:02:05] Speaker 03: Yes, Your Honor. [00:02:06] Speaker 03: To be certain, that is a defense and the core of F5's argument. [00:02:11] Speaker 03: Judicial estoppel, Your Honors, respectfully should not apply here. [00:02:14] Speaker 03: Brazos has not taken a clearly inconsistent position. [00:02:18] Speaker 03: First of all, it never urged the court to adopt a construction that required interchangeability solely in response to F5's. [00:02:29] Speaker 03: proposed construction in which it limited a master device to a single device. [00:02:34] Speaker 03: Browse was pointed to the patent's disclosure of an embodiment in which any node can generally function as the master node. [00:02:43] Speaker 03: In its summary judgment order, however, the court adopted a patent-wide interchangeability requirement, something Brazos never urged. [00:02:53] Speaker 03: And that's clear from the briefing. [00:02:55] Speaker 03: Further. [00:02:55] Speaker 01: Now you're stating general conclusions. [00:03:00] Speaker 01: Maybe it's best if you just not look at your notes. [00:03:03] Speaker 01: You said several times to the district court [00:03:07] Speaker 01: For example, the patent contemplates that any device can serve as the master. [00:03:12] Speaker 01: That's, I think, your opening claim construction brief, your responsive brief. [00:03:17] Speaker 01: The patent contemplates that a master device can be any device and can change. [00:03:22] Speaker 01: Those are two distinct things, but you said both of them. [00:03:26] Speaker 03: Yes, Your Honor. [00:03:27] Speaker 01: Can change is one thing. [00:03:29] Speaker 01: Can change to any device is another thing. [00:03:31] Speaker 01: And I think you meant, I think, I'm not sure, only it can change not to any device. [00:03:39] Speaker 01: But you said any device. [00:03:40] Speaker 01: That's the problem I want you to confront squarely. [00:03:44] Speaker 03: Yes, your honor. [00:03:46] Speaker 03: First of all, to any device may not have been the most artful language. [00:03:51] Speaker 03: Certainly, it's clear to me on the record that what was meant is whether or not the master device can change. [00:04:00] Speaker 03: Indeed, that's consistent with the patents disclosure, even in an embodiment in which interchangeability is disclosed. [00:04:07] Speaker 03: Which is at a PPX 107 line 40 it says all nodes in a cluster would typically be functionally equivalent process was solely attempting to respond to F5 inclusion of the word single now It may be helpful to explain what actually happened at the hearing at the claim construction hearing what happened is that Brazos made it clear that the [00:04:32] Speaker 03: that, in fact, the invention included multiple objectives. [00:04:38] Speaker 03: And when asked what the big deal of the patent was, Brazos did not say that the big deal was interchangeability. [00:04:44] Speaker 03: What Brazos said is that there are several advantages. [00:04:48] Speaker 03: One of the advantages is that the master device can change. [00:04:52] Speaker 03: But another advantage is that the master device considers the status of underlying devices and intelligently assigns work to them. [00:05:02] Speaker 04: I don't understand what distinction you're trying to make. [00:05:05] Speaker 04: You just said yourself right here that one of the advantages is that the master device can change. [00:05:11] Speaker 04: I mean, given that, along with everything else you told the district court, I don't understand why she wasn't actually correct in her claim construction based on what you were telling her. [00:05:22] Speaker 03: Well, there's a difference, Your Honor, between saying that the patent allows for [00:05:28] Speaker 03: a master device to change and saying that it's a claim requirement. [00:05:33] Speaker 03: And during the claim construction hearing, which I was just talking about, in fact, the F5 agreed that the party's constructions weren't so different. [00:05:43] Speaker 03: And this was not a hotly contested topic, in fact. [00:05:47] Speaker 03: The court didn't really see the difference between their usage of the term a single device [00:05:52] Speaker 03: in our usage of the term a device. [00:05:54] Speaker 04: And the court... Well, except it sounds like their usage was it's only a single device that never changes and yours is it's a device that can change between the different devices in the group. [00:06:06] Speaker 03: Well, actually during the claim construction hearing, Your Honor, what they said is [00:06:11] Speaker 03: They said it really doesn't make any difference to us whether it's a single device or device so long as there's so long as their Brazos is agreeing that there's not more than one at a time that today ppx 9905 9 to 13 they weren't arguing I'm sorry I don't understand did they also Say it can change or it couldn't change they said that it could change [00:06:35] Speaker 03: What the point they were making during the client. [00:06:37] Speaker 03: They're going to disagree with you on that. [00:06:39] Speaker 03: Do you have a site for that? [00:06:40] Speaker 03: I do. [00:06:40] Speaker 03: A P P X 99 0 5 9 to 13. [00:06:46] Speaker 03: What does it say? [00:06:47] Speaker 03: What it says is that when asked why the constructions were different, the court said, I'm having a hard time seeing what difference it really makes, this issue. [00:07:00] Speaker 03: And F5 argued that the master could change from time to time, but at any time, there was only one master. [00:07:06] Speaker 03: That's at APPX 9903, 17 to 9904, 7, and then [00:07:16] Speaker 03: When the court asked what difference there was between the party's positions in that regard, F5's counsel conceded that it really didn't make any difference to them, so long as they're agreeing there's not more than one at a time. [00:07:29] Speaker 03: In other words, and that's at APPX 9905, 9 to 13. [00:07:35] Speaker 03: So they weren't arguing that there isn't any interchangeability. [00:07:40] Speaker 03: And we didn't argue that it's not permitted. [00:07:45] Speaker 03: They were just arguing that there couldn't be more than one at a time. [00:07:50] Speaker 01: Can I try to clarify something? [00:07:51] Speaker 01: Because I think we may not be quite on the same page, and maybe I've misunderstood. [00:07:58] Speaker 01: There is, as a logical matter, a difference between saying the master device can change [00:08:04] Speaker 01: maybe change to only one of the other devices in the cluster and saying it can change to any of the devices in the cluster. [00:08:12] Speaker 01: Now, the term interchangeability is the label that was given in the footnote of the district court's opinion, footnote three or five or something like that, saying what I mean by interchangeability, and I think maybe what the parties meant, I'm not sure, is that the master can change to any of the devices [00:08:32] Speaker 01: Does it make a difference to the summary judgment determination whether what we're talking about is whether the master device can change at all or has to be changeable to all of the devices in the cluster? [00:08:55] Speaker 01: You don't understand my point. [00:08:57] Speaker 01: There are seven devices in the cluster. [00:09:00] Speaker 03: Yes. [00:09:00] Speaker 01: You start. [00:09:01] Speaker 01: Number one is the master. [00:09:04] Speaker 01: Master can change only to device number two or master can change to two, three, four, five, six, and seven. [00:09:11] Speaker 03: Yes. [00:09:11] Speaker 01: Those are two different possibilities. [00:09:15] Speaker 01: What's in dispute here? [00:09:18] Speaker 03: Your Honor, Brazos is not taking the position that interchangeability is required for every device in a cluster, even for claims that explicitly require it. [00:09:28] Speaker 03: If you look at dependent claims 511 and 17, what they say is that masternode responsibility can be transferred to a device, not that it can be transferred to any device. [00:09:40] Speaker 03: That's in the claim language itself. [00:09:43] Speaker 03: said in the claim construction briefing that the patent contemplated that the master device could change. [00:09:50] Speaker 01: But also- When it came time for summary judgment, was the non-infringement determination that in the accused product, the master can't change to anything, or that it merely can't change to the full panoply of other devices? [00:10:08] Speaker 03: You're asking what their non-infringement position is? [00:10:10] Speaker 01: Well, I'm asking what the non-infringement determination as a summary judgment matter by the district court was. [00:10:17] Speaker 03: The non-infringement determination by the district court [00:10:21] Speaker 03: by the district court was that interchangeability was required where a device must be able to change to any device in the cluster. [00:10:31] Speaker 03: That's what the summary judgment held. [00:10:34] Speaker 03: And that would appear to mean that it would be able to change to every [00:10:40] Speaker 03: other device in the cluster. [00:10:42] Speaker 01: Well, more than a peer. [00:10:43] Speaker 01: That's how the court defined interchangeability. [00:10:47] Speaker 01: Suppose the question were whether it can change at all to a particular one of the other devices. [00:10:59] Speaker 01: Would the summary judgment question of infringement be any different? [00:11:05] Speaker 01: I don't believe so, Your Honor, because- That question was not decided, but I'm asking now whether [00:11:10] Speaker 01: we would be engaged in a pointless distinction. [00:11:14] Speaker 03: I don't believe so, Your Honor, because Brazos cited evidence showing that the accused big IP DNS was, in fact, interchangeable with other devices in the cluster. [00:11:26] Speaker 03: With some other devices. [00:11:27] Speaker 03: Well, the court didn't really specify, but it found that Brazos' argument on that point [00:11:36] Speaker 03: were insufficient and did not agree with us. [00:11:38] Speaker 03: So it rolled out interchangeability alone. [00:11:40] Speaker 03: I didn't see that the court specified whether that was with respect to some or all of the devices. [00:11:47] Speaker 03: But it didn't appear to find that there was any interchangeability whatsoever, meaning that- The language is really getting in the way here. [00:11:58] Speaker 01: Interchangeability was defined here to mean any other device can be swapped in. [00:12:06] Speaker 01: The word, as an English language matter, could refer to something much, much lesser. [00:12:12] Speaker 01: Namely, the master can go to at least one other device. [00:12:18] Speaker 01: You could call that interchangeable. [00:12:19] Speaker 01: And every time you use the term interchangeability, I keep trying to figure out which you're talking about. [00:12:24] Speaker 03: Yes, Your Honor. [00:12:27] Speaker 03: The court used the word any. [00:12:30] Speaker 03: And when it used the word any, it appeared to use it to mean all. [00:12:35] Speaker 04: uh... and so i i think that that's so is there a dispute of fact as to whether their device can change to one other unit or less than all uh... [00:12:51] Speaker 03: We did not appeal the court's determination that Brazos had not presented evidence that the master could change to any other device in the cluster. [00:13:05] Speaker 04: Let me restate that to make sure I understand what you're saying. [00:13:08] Speaker 04: So before us, it's not disputed that their device can't change at all. [00:13:15] Speaker 03: That issue is not on appeal. [00:13:17] Speaker 03: We did not appeal the issue. [00:13:18] Speaker 04: Well, it's before us. [00:13:19] Speaker 04: Is it disputed or not? [00:13:22] Speaker 03: Did you dispute it below? [00:13:23] Speaker 03: We provided evidence. [00:13:26] Speaker 03: We provided evidence of it, but we didn't appeal that finding. [00:13:35] Speaker 02: You are into your rebuttal time. [00:13:38] Speaker 03: Pardon? [00:13:39] Speaker 02: You're into your rebuttal time. [00:13:41] Speaker 03: Yes, Your Honor. [00:13:42] Speaker 03: The other thing that I would quickly say if I can just use a minute of my rebuttal time is that the claims here are very clear about specifically what's required of a master device. [00:13:55] Speaker 03: The summary of the invention describes two primary objectives. [00:13:58] Speaker 03: The primary objective is one where the [00:14:00] Speaker 03: The status of underlying devices is considered when work is assigned to those devices. [00:14:08] Speaker 03: That disclosure is embodied in the independent claims, which were asserted. [00:14:13] Speaker 03: At the end of that summary, an alternative embodiment is described in which [00:14:20] Speaker 03: any node may function as the master. [00:14:22] Speaker 03: And that's the intention that the dependent claims, the unasserted dependent claims 511 and 17 are directed towards. [00:14:31] Speaker 03: Thank you, Your Honors. [00:14:39] Speaker 02: Mr. Weiber. [00:14:39] Speaker 00: Good morning, Your Honors. [00:14:41] Speaker 00: Jonathan Weiber for FLE, F5. [00:14:43] Speaker 00: May it please the court. [00:14:44] Speaker 00: Your Honor, I understand exactly what you're referring to. [00:14:46] Speaker 00: And that's really the crux of the issue. [00:14:48] Speaker 00: There's actually three different possibilities, not just the two that you mentioned. [00:14:52] Speaker 00: And it turns on how many of the host devices can provide DNS functionality. [00:14:57] Speaker 00: The choices are 0, 1, 2, or all. [00:15:04] Speaker 00: When they talk about interchangeability, they're talking about complete interchangeability. [00:15:07] Speaker 01: And when you say provide DNS functionalities, is that the word you use? [00:15:13] Speaker 01: Yeah. [00:15:13] Speaker 01: You mean serve as the master. [00:15:16] Speaker 00: The master is the node that provides DNS functionality. [00:15:20] Speaker 00: The prior art described two different kinds of nodes in these clusters is the content host that provides the web page or whatnot. [00:15:28] Speaker 00: That does not provide DNS services. [00:15:30] Speaker 00: Instead, a separate device has to provide DNS services. [00:15:33] Speaker 00: The patent says, you know what? [00:15:34] Speaker 00: Let's have one of these hosts double duty and do provide DNS services. [00:15:39] Speaker 00: And the question that you're asking, do they all have to be able to? [00:15:43] Speaker 00: just two so you can interchange them, and I'm adding just one. [00:15:48] Speaker 00: Because in the accused product, the answer is zero. [00:15:51] Speaker 00: That's our non-infringent position. [00:15:53] Speaker 00: We practice only the prior art. [00:15:55] Speaker 00: So as far as the partial interchangeability, where you have only two. [00:16:00] Speaker 01: OK, just to be clear, the district court did not find that you were zero. [00:16:05] Speaker 00: I think that it did. [00:16:06] Speaker 00: The district court found, at the very least, that there was no interchangeability. [00:16:11] Speaker 01: But by interchangeability, she meant all. [00:16:16] Speaker 01: The district court meant all. [00:16:18] Speaker 00: I'm not sure about that. [00:16:20] Speaker 00: The district court had maybe two different definitions of interchangeability. [00:16:24] Speaker 00: At some point, she said all. [00:16:25] Speaker 00: At some point, she said just one, just the ability to change. [00:16:30] Speaker 00: But when she found no interchangeability, what she was talking about was there was no ability of our master, our DNS server, to change at all. [00:16:40] Speaker 00: It does not change. [00:16:42] Speaker 04: Can I see if I understand what you're trying to say? [00:16:44] Speaker 04: And again, this technology is a little, it's not super complex, but I might be getting it wrong. [00:16:50] Speaker 04: The prior art seems like there's the, the master node and then there's all the other servers and they're separate things. [00:16:59] Speaker 04: And the patent has a cluster of a bunch of different nodes and the master can switch between the cluster. [00:17:05] Speaker 04: You're saying you're. [00:17:08] Speaker 04: know that operates as a master is not part of the cluster, like the prior art. [00:17:13] Speaker 04: When we say part of the cluster, I want to make sure that what we're referring to is accurate. [00:17:16] Speaker 04: But that's what I think is the fuzziness here. [00:17:18] Speaker 04: And I'm not sure it really matters, because your view is yours never changes. [00:17:25] Speaker 00: The prior art operates like your chambers, your honor. [00:17:27] Speaker 00: You have a judge, and you have some clerks. [00:17:31] Speaker 00: The clerk is not a judge, the judge is not a clerk. [00:17:33] Speaker 00: Why? [00:17:33] Speaker 00: Because they have different roles. [00:17:35] Speaker 00: So the prior art has a DNS server, and it's got a cluster of devices that provide service. [00:17:39] Speaker 00: They're separate. [00:17:40] Speaker 00: They don't have the same functionality. [00:17:42] Speaker 00: It doesn't matter if they're in the same chambers or not. [00:17:44] Speaker 00: They're just different roles. [00:17:46] Speaker 00: So that's how the admitted prior art operates, and that's how the accused product operates. [00:17:52] Speaker 00: And what we submit is that this is exactly what the district court found. [00:17:56] Speaker 00: And therefore, since none of our nodes could serve as the master device, it doesn't even matter if it's two or all. [00:18:04] Speaker 00: But if you disagree- Yours can't transfer at all. [00:18:07] Speaker 00: It doesn't transfer at all. [00:18:08] Speaker 00: And I'm happy to point to the findings there. [00:18:11] Speaker 00: And there's no dispute of fact about that. [00:18:14] Speaker 00: Well, the district court found this as a matter of fact. [00:18:18] Speaker 00: It's not appealed. [00:18:20] Speaker 00: There's no dispute about that. [00:18:22] Speaker 00: So that's waived on appeal. [00:18:25] Speaker 00: In Appendix 63, it says, big IP DNS, that's our DNS server, cannot function interchangeably with other devices in the cluster. [00:18:33] Speaker 00: There's no evidence that it changes at all. [00:18:35] Speaker 01: But it just depends what's meant by interchangeably. [00:18:39] Speaker 01: Right? [00:18:40] Speaker 01: Footnote. [00:18:45] Speaker 01: Where was it? [00:18:46] Speaker 01: Five. [00:18:47] Speaker 01: For simplicity, this court often refers to this capability as interchangeability. [00:18:52] Speaker 01: The footnote hangs off a sentence that says that any device in a cluster can serve as the master device at any given time. [00:19:01] Speaker 01: In other words, any maybe can mean even a single one. [00:19:06] Speaker 01: I think it means here, every. [00:19:08] Speaker 00: I agree with your honor that that footnote seems to imply every. [00:19:12] Speaker 00: The summary judgment order also says that this requires flexibility and interchangeability. [00:19:18] Speaker 00: And specifically, the court quote, referred to that as the ability of the master device to change as needed. [00:19:24] Speaker 00: So it's not clear if she means complete or not. [00:19:28] Speaker 00: But what we're saying, it doesn't even matter. [00:19:30] Speaker 01: But how do we know that it doesn't matter? [00:19:33] Speaker 01: The district court did not. [00:19:34] Speaker 01: make a finding of fact that it wouldn't matter whether one was talking about switching over to every one of the members of the cluster or switching over to even one other one. [00:19:50] Speaker 00: Let me step back to the actual fact findings and what they say. [00:19:54] Speaker 00: The fact-finders say that our LTMs, the notes, the host devices, quote, they are not capable of responding to DNS queries. [00:20:07] Speaker 01: What are you pointing to? [00:20:08] Speaker 00: This is Appendix 61. [00:20:12] Speaker 00: What page? [00:20:14] Speaker 00: Appendix 61. [00:20:17] Speaker 00: And on that same page. [00:20:18] Speaker 01: Where is that? [00:20:23] Speaker 00: Which line of 61? [00:20:25] Speaker 01: Yeah, we're kind of on a trust and verify basis. [00:20:29] Speaker 00: It's the third category of evidence. [00:20:32] Speaker 00: And it's line 19, I believe, is what the third category is. [00:20:36] Speaker 00: And it's line 25. [00:20:37] Speaker 00: He does not opine that the other devices in the cluster, big IP LTM, are also capable of responding to DNS queries and selecting other devices. [00:20:46] Speaker 00: And in the second category, just before it, she says, [00:20:50] Speaker 00: The big IP DNS, the evidence doesn't show that the big IP DNS could perform the same functions performed with the LTMs. [00:20:57] Speaker 00: Nor that the LTMs could perform the same load balancing functions. [00:21:00] Speaker 00: This is in the previous page. [00:21:02] Speaker 00: So what she's saying is that we have a separate, these fact findings say we have a separate DNS. [00:21:07] Speaker 00: Which means zero of the nodes in the cluster could perform DNS. [00:21:12] Speaker 00: So whether claims require one, [00:21:14] Speaker 00: or two, or all, none of it really matters, because we don't infringe into any of those circumstances. [00:21:22] Speaker 00: At the very least, as I said before, I think that the finding of no interchangeability at all means that it has to be at least two, and we're at zero. [00:21:35] Speaker 00: I'd like to explain why it is that we got to this point. [00:21:38] Speaker 00: It's been F5's position throughout this, that we have a separate device that's a node. [00:21:44] Speaker 04: Can you explain to me, because I thought I was a little confused by the different claim constructions below, because it seemed the one you put forward was against your interest, because you initially argued it all had to be one. [00:21:55] Speaker 04: But is it because your proposed claim was it still had to be one of the servers [00:22:04] Speaker 04: the type of servers, whatever you're talking about, not the one that does the DNS servers. [00:22:09] Speaker 00: Yeah. [00:22:10] Speaker 00: So the position we took below is it has to be at least one, and ours has zero. [00:22:15] Speaker 00: So they stood up after that and said, at least one, it's got to be all of them. [00:22:20] Speaker 00: So we said, OK. [00:22:21] Speaker 00: And the district court adopted that. [00:22:23] Speaker 00: And so we said, all right. [00:22:23] Speaker 00: Well, we said we don't have any. [00:22:25] Speaker 00: And whether it's one or all of them, it doesn't matter. [00:22:27] Speaker 00: That's the argument we made at summary judgment. [00:22:29] Speaker 00: We said, we have zero. [00:22:30] Speaker 00: You claim construction required all. [00:22:33] Speaker 00: So they're up here saying, [00:22:34] Speaker 00: The tank construction of all is wrong. [00:22:37] Speaker 00: But OK, even if it's wrong, it requires at least two, it requires at least one. [00:22:42] Speaker 00: We're still at zero. [00:22:43] Speaker 00: And there's undisputed fact findings, unappealed fact findings, that it has to be at least two or maybe at least one. [00:22:50] Speaker 00: It's not even disputed that it has to be at least one, right? [00:22:54] Speaker 00: That's what the invention is. [00:22:56] Speaker 00: And so those are the facts I'm trying to point to. [00:23:01] Speaker 01: What was the sequence of the Clint construction order and discovery? [00:23:14] Speaker 00: Which part of discovery are you referring to, Your Honor? [00:23:17] Speaker 01: So you make a judicial estoppel argument. [00:23:20] Speaker 01: This is the background to the question. [00:23:24] Speaker 01: near universal, maybe even universal requirement before judicial estoppel can apply, is that the party against whom it is asserted obtained something, an advantage, actually obtained an advantage by the earlier assertion. [00:23:43] Speaker 01: I'm not sure what that advantage was here. [00:23:47] Speaker 00: I think you have a good point, Your Honor. [00:23:49] Speaker 00: We think that this is at least [00:23:54] Speaker 00: disfavored under the case law of this court? [00:23:57] Speaker 01: There's a separate point about you can't come up on appeal and fault the district court for adopting the claim construction you proposed. [00:24:08] Speaker 01: But this isn't that. [00:24:09] Speaker 01: The other side proposed a claim construction that didn't talk about all or any or anything like that. [00:24:18] Speaker 01: Well, the things that you're relying on and that the district court relied on are things that they asserted in briefing or otherwise in support of a claim construction that was not the interchangeability point. [00:24:36] Speaker 00: I think what they were trying to do was bolster them. [00:24:39] Speaker 01: I'm not sure what they were trying to do matters. [00:24:42] Speaker ?: OK. [00:24:43] Speaker 01: So I'm not sure what the doctrine is that says these statements that the other side made are binding on them. [00:24:53] Speaker 01: Wasn't quite their claim construction. [00:24:55] Speaker 01: It doesn't look like judicial estoppel applies. [00:24:58] Speaker 01: So why not get directly to whether this claim construction is right or not? [00:25:04] Speaker 00: I'm very happy to talk about that. [00:25:05] Speaker 00: I don't mean get to it here. [00:25:09] Speaker 01: And you have some problems, I think. [00:25:12] Speaker 01: Figure 6, I think, is a real problem for you. [00:25:14] Speaker 00: Figure 6? [00:25:15] Speaker 01: Do I have the wrong case? [00:25:17] Speaker 01: Maybe I have the wrong case. [00:25:19] Speaker 00: Figure 1 is the one that they point to as a separate embodiment, and I'm happy to talk about that. [00:25:24] Speaker 00: As far as which judicial doctrine to apply to their statements, this court hasn't been very clear about which one applies. [00:25:30] Speaker 00: So Key Pharmacies says it's something that could be [00:25:35] Speaker 00: It could be a waiver. [00:25:36] Speaker 00: It could be a judicial estoppel. [00:25:37] Speaker 00: It could be invited error. [00:25:40] Speaker 00: But you know what? [00:25:40] Speaker 00: We're just going to say it's extremely disfavored. [00:25:42] Speaker 00: And it's never been really settled exactly what you do in this kind of situation. [00:25:46] Speaker 00: Right. [00:25:46] Speaker 01: I guess I was thinking of your own case. [00:25:49] Speaker 01: I apologize for that. [00:25:50] Speaker 01: So the spec and the claim differentiation points and the language, the particular language, at least if what we're talking about is changeable to every other one [00:26:00] Speaker 01: That seems to be a real stretch as a claim construction argument. [00:26:06] Speaker 00: I agree. [00:26:07] Speaker 00: It's not our construction. [00:26:08] Speaker 00: We never proposed it in the district court. [00:26:11] Speaker 00: You don't have to adopt it in order to confirm here, because we have no interchangeability. [00:26:15] Speaker 00: So even just two would be enough, or even just one would be enough. [00:26:18] Speaker 00: Remember, the total interchangeability is not a position that we advocated at any point. [00:26:25] Speaker 00: This is their position. [00:26:27] Speaker 00: We say it has to be at least one. [00:26:30] Speaker 00: at the very least of these two. [00:26:32] Speaker 00: We wanted to defend those. [00:26:35] Speaker 00: To go as far as all, possibly, I think that's a real waste of this court's time to go that far when the undisputed facts findings would show non-infringement under a much broader construction. [00:26:51] Speaker 00: If the court decided complete interchangeability is not required and remanded it, let's have the same argument again below. [00:26:58] Speaker 01: OK, so let me I guess get back to where I kind of started. [00:27:01] Speaker 01: I guess the thing I was thinking about in concrete terms [00:27:04] Speaker 01: Was the claim construction in place when the various expert reports were done, which would have presumably had the claim construction in mind, as opposed to were the experts already done before the claim construction came about? [00:27:25] Speaker 00: The experts provided some declarations for the claim construction. [00:27:28] Speaker 00: No, I mean on the summary judgment. [00:27:31] Speaker 00: Yeah, the claim construction was done. [00:27:32] Speaker 00: The experts applied that claim construction summary judgment. [00:27:36] Speaker 00: What they said and what our experts said [00:27:39] Speaker 00: was because zero of the devices could be the master and the accused product, it does not meet the court's construction, which requires all of them, or at least two. [00:27:49] Speaker 00: That was our non-imprisonment position. [00:27:51] Speaker 00: I'm happy to read it into the record if you can. [00:27:55] Speaker 00: And so that's why we don't know that the court doesn't need to reach this full interchangeability issue. [00:28:03] Speaker 00: At the very, very least, [00:28:05] Speaker 00: the partial interchangeability issue is decided at summary judgment. [00:28:08] Speaker 00: She said there is no interchangeability, none. [00:28:12] Speaker 00: So if that's the case, the court only has to find a claim construction that there is at least two notes have to be interchangeable. [00:28:22] Speaker 00: But we submit that even if the court finds that at least one needs to be interchangeable, then we still don't infringe because of the fact findings that I just read you about how [00:28:34] Speaker 00: Accused DNS is separate from the accused's hosts, which are the LTMs, and vice versa. [00:28:41] Speaker 00: So there's enough here, enough fact findings undisputed for this court to affirm under either one of those constructions. [00:28:50] Speaker 00: Any other questions? [00:28:51] Speaker 02: No. [00:28:53] Speaker 02: OK. [00:28:54] Speaker 00: I've got one more minute, and I'll just make sure that I have said everything that I need. [00:28:58] Speaker 00: Thank you so much. [00:29:03] Speaker 02: Thank you. [00:29:08] Speaker 03: Your Honor, a few points. [00:29:10] Speaker 03: Your Honor stated that you didn't think that judicial estoppel applied. [00:29:15] Speaker 04: Can you just jump right to, if we get rid of the complete interchangeability, but think that at least it has to be interchangeable with one other device. [00:29:24] Speaker 04: Is there a disputed question of fact on that? [00:29:27] Speaker 04: Uh, your honor, or do you, does the record show that undisputedly that their device has one separate DNS server and a bunch of different host servers and that the DNS can't be interchanged with any of those search servers? [00:29:44] Speaker 03: Your Honor, the court wasn't 100% clear on that. [00:29:47] Speaker 03: We cited evidence showing that the device could be, that the master device, the Acute Big IP DNS, was indeed interchangeable. [00:29:54] Speaker 04: With the host servers. [00:29:56] Speaker 03: What evidence did you cite? [00:29:57] Speaker 03: Yeah. [00:29:59] Speaker 04: In the summary judgment motion. [00:30:00] Speaker 03: You'll see in the summary judgment order that the court spends several pages addressing that very evidence. [00:30:09] Speaker 03: That is at 6060. [00:30:16] Speaker 03: Yeah, that is at pages 9, or APPX 59 through 63. [00:30:25] Speaker 03: And the court didn't agree with our [00:30:29] Speaker 03: argument that the big IP DNS which serves as a master or a authoritative domain name server was interchangeable. [00:30:38] Speaker 04: Wait, quit saying interchangeable. [00:30:41] Speaker 04: Respond to the specific question. [00:30:43] Speaker 04: Is it, because I can't tell when you say she didn't think it was interchangeable whether she meant it was interchangeable with everything or just one. [00:30:51] Speaker 04: Did she find that it wasn't interchangeable at all? [00:30:55] Speaker 04: And that there is no dispute a fact of that, or that it wasn't interchangeable with all of them. [00:31:01] Speaker 03: I'd love to give you a clear answer. [00:31:03] Speaker 03: The problem is that the court wasn't clear and said. [00:31:05] Speaker 04: Well, what did you assert in your summary judgment motion? [00:31:09] Speaker 03: We asserted that the device could be, that the big IP DNS was interchangeable. [00:31:16] Speaker 03: I don't know that we were specific. [00:31:18] Speaker 04: What did you point to to show that it was interchangeable? [00:31:20] Speaker 03: We pointed to evidence showing that the big IP DNS could function within a cluster and could be grouped in that cluster with it being served as a master. [00:31:32] Speaker 03: We pointed to evidence showing that when it's configured in a cluster it [00:31:42] Speaker 03: It can indeed be switched out. [00:31:45] Speaker 03: What do you mean switched out? [00:31:46] Speaker 03: Changed to another device, but we weren't... I don't see... To a host server or just another DNS server? [00:31:55] Speaker 03: To what would be considered a host server, meaning another server in the cluster. [00:32:02] Speaker 03: Where's that evidence? [00:32:08] Speaker 03: Your Honor, it's... [00:32:10] Speaker 03: That evidence is in our opposition to F5s. [00:32:17] Speaker 03: Hold on one moment, please. [00:32:41] Speaker 03: Right. [00:32:41] Speaker 03: That evidence is cited at APPX 59, where we provided arguments. [00:32:48] Speaker 03: This is a recitation from our brief opposing summary judgment. [00:32:53] Speaker 03: And we pointed out that the Big IP appliance includes all the F5 modules. [00:33:00] Speaker 03: We pointed out that the Big IP LTM can be any of those appliances, and any could become the master. [00:33:07] Speaker 03: And we cited evidence for that. [00:33:09] Speaker 03: We also cited evidence saying that in a sync group each can be the master and we also pointed to evidence showing that that f5 allows its customer to define objects in the cluster the court didn't find any of that to be sufficient to demonstrate interchangeability and and to me it appears that when when it said I'm sorry for using the term interchangeability it appeared to not find evidence that the big IP DNS could change to any and [00:33:38] Speaker 03: server. [00:33:39] Speaker 03: I don't know that it was all right. [00:33:42] Speaker 04: So if that's the case that she found there's no just disputed fact about whether it can change to to one. [00:33:49] Speaker 04: Then even if we agree with you that it doesn't have to be all it can just there still has to be at least interchangeability to one. [00:33:58] Speaker 04: Then I mean, I know we review this de novo. [00:34:00] Speaker 04: But if she's right that there's no genuine issue, that theirs doesn't change at all, then you lose under whatever construction, right? [00:34:08] Speaker 03: Your honor, I would respectfully disagree. [00:34:10] Speaker 03: And that's because the independent asserted claims simply don't require the capability for the master device to change. [00:34:17] Speaker 03: It's not until we get to the dependent claims, 511 and 17, that we see that requirement. [00:34:24] Speaker 03: The applicant was very clear about specifically what was required by the independent claims. [00:34:28] Speaker 03: Additionally, I'd note that the district court did point to evidence showing that the master device could indeed serve within a cluster. [00:34:37] Speaker 03: And the district court cites that at APP Act 61 and 62. [00:34:43] Speaker 03: So if your honors agree with me that the independent claims do not, in fact, require that any interchangeability, meaning the master device responsibility can be transferred to even one other device in a cluster. [00:35:01] Speaker 03: If that's not a requirement, then we can prove infringement. [00:35:05] Speaker 03: And that evidence is cited by the district court at APPX 61 and 62. [00:35:09] Speaker 03: And that's an open fact issue. [00:35:11] Speaker 01: OK. [00:35:13] Speaker 01: Thank you. [00:35:14] Speaker 03: Thank you, Your Honor. [00:35:15] Speaker 01: Thanks to both sides. [00:35:17] Speaker 01: The case is submitted.