Date: June 15, 2015
`
`Case: Certain Network Devices, Related Software and Components
`Thereof (II)
`
`Ace-Federal Reporters, Inc.
`Phone: 202-347-3700
`Fax: 202-737-3638
`Email: info@acefederal.com
`Internet: www.acefederal.com
`
`Exhibit Cisco-2010
`IPR2015-01050
`
`
`
`Case: Certain Network Devices, Related Software and Components
`Thereof (II)
`
`Ace-Federal Reporters, Inc.
`Phone: 202-347-3700
`Fax: 202-737-3638
`Email: info@acefederal.com
`Internet: www.acefederal.com
`
`Exhibit Cisco-2010
`IPR2015-01050
`
`
`
`
`
` UNITED STATES OF AMERICA
` BEFORE THE
` INTERNATIONAL TRADE COMMISSION
`
`Page 1
`
`- - - - - - - - - - - - - - - - - - - -x
`IN THE MATTER OF: : Investigation No.
`CERTAIN NETWORK DEVICES, RELATED : 337-TA-945
`SOFTWARE AND COMPONENTS THEREOF (II) :
`- - - - - - - - - - - - - - - - - - - -x
`
` TUTORIAL/MARKMAN HEARING
`
` Monday, June 15, 2015
` Courtroom B
` U.S. International Trade
` Commission
` 500 E Street SW
` Washington, DC
`
`The Tutorial/Markman hearing commenced, pursuant to notice
`of the Judge, at 8:35 a.m., before the Honorable Thomas B.
`Pender, Administrative Law Judge for the United States
`International Trade Commission.
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`APPEARANCES:
`
`For Complainant:
` STEVEN CHERNY, ESQ.
` Kirkland & Ellis
` 601 Lexington Avenue
` New York, New York 10022
` 212.446.4965
` steven.cherny@kirkland.com
`
` ERIC CHENG, ESQ.
` Kirkland & Ellis
` 3330 Hillview Avenue
` Palo Alto, California 94304
` 650.859.7046
` eric.cheng@kirkland.com
`
` ADAM R. ALPER, ESQ.
` Kirkland & Ellis
` 555 California Street
` San Francisco, California 94104
` 415.439.1876
` adam.alper@kirkland.com
`
` -- continued --
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`APPEARANCES (Continued):
`
`Page 3
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` NIMALKA R. WICKRAMASEKERA, ESQ.
` MICHAEL W. DE VRIES, ESQ.
` Kirkland & Ellis
` 333 South Hope Street
` Los Angeles, California 90071
` 213.680.8246
` nimalka.wickramasekera@kirkland.com
` michael.devries@kirkland.com
`
`For Respondent:
` MICHAEL J. MC KEON, ESQ.
` RUFFIN B. CORDELL, ESQ.
` LAUREN A. DEGNAN, ESQ.
` RALPH A. PHILLIPS, ESQ.
` Fish & Richardson
` 1425 K Street, NW
` Washington, DC 20005
` 202.783.5070
` mckeon@fr.com
` cordell@fr.com
` degnan@fr.com
`
` -- continued --
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`APPEARANCES (Continued):
`
` SETH M. SPROUL, ESQ.
` Fish & Richardson
` 12390 El Camino Real
` San Diego, California 92130
` 858.678.4343
` sproul@fr.com
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`On Behalf of ITC Staff:
` MONICA BHATTACHARYYA, ESQ.
` ANNE GOALWIN, ESQ.
` MARGARET MAC DONALD, ESQ.
` International Trade Commission
` Office of Unfair Import Investigations
` 500 E Street, SW
` Washington, DC 20436
` monica.bhattacharyya@usitc.gov
` anne.goalwin@usitc.gov
` margaret.macdonald@usitc.gov
` 202.205.1848
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` P R O C E E D I N G S
` JUDGE PENDER: Good morning.
` Today is June 15, 2015, and we are here for the
`tutorial and Markman hearing in Investigation Number
`337-TA-945, Certain Network Devices, Related Software and
`Components Thereof.
` Some fairly normal rules. Hearing hours today
`are -- we started at 8:35, but anyway, we're going to end
`around 4:30. That's not how I normally did it, but as some
`of you know, things got in the way here unfortunately, and
`our sympathies are all with Ms. Zimmerman, who is not able
`to be here, but will be answering the questions on this
`case as we go along.
` And if there's another judge appointed, which
`there should have been a couple of months ago, but somehow
`that got slowed up too.
` Anyway, I'll break for lunch at approximately --
`somewhere between 11:30 and 11:45 and we won't reconvene
`until 1:00 and we'll take a morning and afternoon break.
` Most of you know my rules about beverages in the
`courtroom, and that is I don't care what you drink, as long
`as it's indestructible container or bottle with a
`tight-fitting lid or cap. And of course water bottles are
`fine. No Starbucks-like cups, et cetera.
` The official rule is no food, but the only thing
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`that really gets everybody upset is gum. I don't need to
`explain why.
` Before we go any further, like I did before I
`came in here, please take this opportunity to turn off or
`set to silent your cell phones, tablets and pagers so that
`they will not interrupt these proceedings.
` I'll take appearances for Cisco Systems, Inc.
`And they are represented by?
` MR. CHERNY: Your Honor, good morning. I'm
`Steve Cherny from Kirkland & Ellis on behalf of Cisco. And
`at counsel table, I'll introduce the people who are
`speaking. Mr. Adam Alper from Kirkland & Ellis, Mike
`DeVries, Eric Cheng. Behind is Nimalka Wickramasekera.
` And I would also like to introduce our client,
`Ms. Shaw Chang, senior counsel at Cisco.
` Thank you, your Honor.
` JUDGE PENDER: And Respondent, Fish &
`Richardson?
` MR. MC KEON: Good morning, your Honor. I'm
`Mike McKeon for Respondent Arista Networks. With me today,
`Ruffin Cordell, Lauren Degnan, Seth Sproul, Ralph Phillips.
`And those will be the speakers.
` And I should say, your Honor, we also brought
`today summer associates that are working at our firm, and I
`promised them that a hearing with Judge Pender is always
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`entertaining and thoughtful and provoking, so I'm hoping
`they will learn something today.
` JUDGE PENDER: Well, you all have to keep in
`mind that as much as I normally spend time on this case,
`and I was able to spend some time on this case, I've got a
`major hearing starting next Monday, so I'm a little bit
`divided more than I normally would be.
` Anyway, for the Staff please.
` MS. BHATTACHARYYA: Good morning, your Honor.
`My name is Monica Bhattacharyya from the Office of Unfair
`Import Investigations, and with me is Margaret McDonald,
`director of our office, and Clay Etsminger, who is a summer
`intern with our office.
` JUDGE PENDER: Thank you.
` Are there any preliminary matters that I'm
`unaware of before we get going?
` MR. CHERNY: Actually, in light of what you said
`about Ms. Zimmerman -- I can sit at the table if you'd
`like.
` JUDGE PENDER: I don't mind if you're sitting
`down and talking to me if we can get a good record. That
`doesn't bother me in the slightest.
` MR. CHERNY: Your Honor, on Friday, we jointly
`sent a letter to Ms. Zimmerman regarding procedure, asking
`for your guidance regarding a procedural point, which was
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`how to conduct the tutorial in light of the fact that we
`have a number of distinct patent families.
` And the parties actually presented different
`options to the Court. One was that we are prepared to go
`forward and essentially have a general tutorial about
`networking at the beginning, and then before each patent
`family, do something specific to those patents, because
`although they're all in the general area of networking,
`they are different patent families and are unrelated.
` So we were concerned perhaps that the Court
`would find it more helpful to hear the tutorial relating to
`the particular patents immediately proximate.
` But, of course, the Court may want to proceed
`having the tutorial up front entirely, and we submitted a
`letter, Staff, Arista and us.
` So I guess we didn't realize that Ms. Zimmerman
`was out and so --
` JUDGE PENDER: No, I'm not sure that you would
`have realized.
` Off the record for a second.
` (Discussion off the record.)
` JUDGE PENDER: Back on the record.
` I appreciate Mr. Cherny's discussion off the
`record on how we're going to do this. And yes, we'll do a
`general and then we'll do a specific before each bank of
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`patent families.
` MR. CHERNY: With that, your Honor, if you would
`like to proceed, we can proceed with our general tutorial
`as Complainant if you would like to do it that way.
` JUDGE PENDER: Yes, I'm very fine with that. I
`should have told Ms. Morad to get a microphone too, but
`since we don't have a witness, it's amazing --
` MR. CHERNY: Let me introduce Mr. Will Thomas
`who is our trial tech, who is, I guess, attempting to fix
`it.
` JUDGE PENDER: There's another one at the
`witness table. Are we going to need witnesses?
` MR. CHERNY: I don't think so. I don't think
`either side is planning to call witnesses, so obviously --
` JUDGE PENDER: All right, that's great. Let's
`go.
` MR. CHERNY: Your Honor, so we've chosen to
`break up the series of tutorials and Markman presentation
`today. Mr. DeVries is going to do the general patent
`tutorial. After that, I believe in connection to the
`ordering of the briefs, we will proceed with what we call
`the ACL patents, which are the '853 and '577 patents. Then
`the loop guard patents '492 and '875, then the COPP
`patents, '668, and then the MLAG patent, which is '211.
` Our understanding was -- and again, this also
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`was in the letter to Ms. Zimmerman, that the proposal that
`1
`we and the Staff had made, that we would start with in each
`term, the Complainant offering its position on the
`construction, Arista responding, Staff responding, and then
`rebuttals, whoever would want to have rebuttals with the
`Court's permission.
` Arista did have a different position that it
`presented in the letter. Unfortunately, since I don't have
`the letter before me, I don't recall the exact position
`that they advanced. But that's the position that we have
`advised.
` JUDGE PENDER: Mr. McKeon is not shy and
`retiring. He's going to tell us what it is.
` MR. MC KEON: Your Honor, first of all, it was
`an e-mail, not a letter. And it was agreed-upon e-mail in
`terms of the process. And I think we -- it was agreed
`upon, there was no differing positions. It was at the
`leisure of the Court, whatever is most helpful to the
`Court.
` JUDGE PENDER: That's fine, that sounds good.
`I'm not guaranteeing rebuttals. Give it your best shot.
` MR. CHERNY: With that, Mr. DeVries, please.
` MR. DE VRIES: Your Honor, we have slides. May
`we approach with the slides?
` JUDGE PENDER: Yes, of course. And you don't
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`need to ask permission to do that. Let's move along.
`Please proceed.
` MR. DE VRIES: Thank you, your Honor. My name
`is Mike DeVries, I'm counsel for Complainant Sisco Systems,
`Inc. I'm going to present Complainants' technical tutorial
`this morning, and I'm going to essentially do two things.
` One, I'd like to briefly introduce the Cisco
`technology that's at issue in this investigation, and then
`second, I'm going to talk about certain networking
`technology concepts that apply to all of the patents that
`are in this proceeding.
` Cisco is the leading networking technology
`company in the world, as your Honor likely is aware. Cisco
`was founded in 1984 by some visionaries who left Stanford
`at that time to start Cisco.
` Cisco is currently headquartered in San Jose,
`California, where it goes thousands and thousands of
`engineers to develop the next generation of networking
`technologies.
` Cisco pioneered networking technologies --
` JUDGE PENDER: You raise a great point there.
`You employ thousands and thousands of engineers. So are
`you going to hit me or anybody with a motion for summary
`determination on the issue of domestic industry?
` MR. DE VRIES: Yes, your Honor. We have asked,
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`in fact, Respondent to stipulate that the economic domestic
`1
`industry requirement is satisfied here. That's something
`that we brought up several weeks ago.
` My understanding is that they have refused to
`provide that stipulation. And so now we're proceeding
`through expert proceedings that we think are -- shouldn't
`be necessary, but they are because there's no stipulation.
` We intend to at the end of that present a motion
`for summary determination to your Honor that the economic
`domestic industry requirement is met.
` JUDGE PENDER: Well, one thing that sometimes
`works is maybe they may not be delighted with your version
`of the facts, of the undisputed facts. And what I had work
`well, particularly well, in one case, it may have even been
`Mr. McKeon who responded, was you or the Complainant
`provided a set of allegedly undisputed facts, and the
`Respondent said, well, we don't agree with this fact, but,
`in fact, we think it should be, and whatever. And it
`didn't affect the outcome and we ended up doing summary
`determination on it.
` But my thought is that's something that you can
`discuss.
` Also, for information, most of us -- I can't
`speak for every judge positively -- we prefer to -- if
`you're going to have to put economic testimony -- well, not
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`economic, accounting testimony on, it's perfectly
`legitimate, perfectly acceptable, to put the accountants
`from the company on to prove the money and dollars and all
`that stuff. You don't need PhDs and experts from the
`outside to talk about what went on in the company.
` If you have an accountant, one of the big guys
`who does it routinely for the company, that's fine, you can
`put them on.
` But I think an expert on domestic industry would
`be more valuable to explain the -- whether or not you have
`qualitative and quantitative, speaking generally, domestic
`industry. If you follow my recent decisions and some of
`the recent decisions by the Commission, the Commission has
`a certain comfort zone.
` Also, I don't know whether Cisco licenses or
`doesn't. I haven't a clue.
` If you're going to make that part of your case,
`then that's a little more difficult, okay.
` But there's two schools -- there's two divergent
`schools of thought now on that. Well, not schools of
`thought, but ways you can prove it. One of them is with a
`694 line of cases and the other is the old interdigital way
`of proving up domestic industry, which is withstanding the
`test of time, I think, and Judge Essex talks about that all
`the time.
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` So just keep that in mind. I mean, obviously A
`1
`and B is a lot easier than C anyway; right?
` And excuse my interruption, but that's
`something -- you know where it's really great? Because I
`always limit you to 150 pages, if I have this case, if it
`doesn't go to another judge, for prehearing brief.
` Well, if you take the domestic industry out of
`there, those 150 pages are a whole lot more useful, aren't
`they.
` MR. DE VRIES: Yes, your Honor. Thank you very
`much. We will definitely keep in mind your Honor's
`comments as we present our domestic industry to your Honor,
`and we will take your suggestion to work with Mr. McKeon in
`an effort to put together a set of stipulated facts. And
`it may be that that ends up resolving the issue for
`everyone.
` JUDGE PENDER: Right. And he doesn't want to
`spend money on that either if he doesn't have to. So
`whatever works is great with me, all right?
` MR. DE VRIES: Understood, your Honor.
` JUDGE PENDER: Thank you.
` MR. DE VRIES: Thank you.
` Cisco, as I mentioned, was founded in the
`mid-1980s, and it developed -- it was a pioneer in the
`space of developing the networking devices that power
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`computer networks and ultimately the Internet.
` There's a slide, slide 2 that I'm showing, and
`on the far left is a -- towards the top, your Honor, is a
`picture of the original Cisco device, the networking
`device, that was used to help transmit information around
`computer networks.
` And on the right-hand side are pictures of the
`modern-day versions of those network devices. Obviously,
`over the last 30 years, a large number of technologies have
`gone into these devices to make them faster, more reliable,
`more secure.
` But this shows a little bit about the history of
`Cisco's innovation. And really, these types of devices are
`the ones that led to what's really a worldwide
`transformation in society with the rise of the Internet,
`fundamental changes in how people communicate and how
`information is disseminated throughout the world.
` Cisco's products are used in many, many
`different environments. This is a selection of them. They
`are at the backbone of many important, critical systems, in
`government, in healthcare, in the military, certainly in
`corporations, and also for service providers. Those are
`the companies that are providing the backbone of the
`Internet and also providing that type of service to -- to
`subscribers.
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` Cisco invests a substantial sum in research and
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`development annually. In their most recent 10-K, which is
`what I'm showing your Honor on slide 4, you'll see that it
`indicates that Cisco in their fiscal year ending 2014,
`which is the most recent, they spent more than $6 billion
`in research and development.
` And that investment goes towards really
`developing all of the new technologies that are continuing
`to make networking better and better at a real fast -- very
`fast clip.
` Cisco's innovations are in many circumstances
`protected by United States patents. Cisco has one of the
`largest patent portfolios in the world.
` This is from 2013, this particular posting that
`I'm showing your Honor, when Cisco was awarded its 10,000th
`patent.
` And amongst Cisco's patents are really some of
`the most fundamental networking patents in the world,
`protecting some of the most fundamental, important
`networking technology developments that exist.
` As Mr. Cherny mentioned to your Honor, there are
`six patents here. They really fall into four categories.
`And the reason for that is, as your Honor knows, two of the
`patents are related, meaning virtually the same
`specification. Those are the two access control list
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`patents, the '853 and the '577. And then the two patents
`relating to what's called loop guard, your Honor. Those
`are '492 and '875. Those again have substantially the same
`specifications.
` So we really have effectively four different
`patent specifications.
` As Mr. Cherny said, I'm not going to get into
`the specifics of each of the patents, but there are a
`number of networking technology concepts that underlie all
`of them and that you will see come up in connection with
`each of the patents.
` And so now I'd like to move to the part of my
`presentation where I talk about some of these -- some of
`the fundamental networking technology concepts that
`underlie the patents.
` First, I'd like to talk about computer networks
`in general. The second is I'd like to talk about data
`packets, which are really the fundamental block that is
`used in modern networks and that allow modern networks to
`function the way that they do.
` I'd like to then talk about networking devices,
`those are the types of devices that Cisco provides and that
`Arista imports into the United States, and all of the
`technologies that we're talking about in these patents in
`some way can be rolled up to technologies that enable fast,
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`reliable transfer of packets around computer networks.
`1
` Computer networks are a phenomenon that has been
`developed over the last several decades, and computer
`networks are now ubiquitous, of course.
` And the fundamental purpose of a computer
`network is quite simple. It is to get information from one
`point to another point.
` The technology that enables that transfer of
`information, though, is complex. It was very difficult to
`develop, and it was the result of a lot of effort that we
`are able to now have computer networks work the way that
`they do.
` As I mentioned, the fundamental unit of
`information in most computer networks today is the data
`packet. Packetized networks are a very important
`development, and Cisco network technologies are at the
`heart of providing the devices that enable data packets to
`be transferred throughout a computer network, including the
`Internet.
` And as I've depicted on this slide 9, your
`Honor, in a very simple example, a data packet is sent from
`the computer on the lower right-hand screen, through a
`networking device, and the networking devices are these
`gray boxes that have some ports on them and then an
`indication that they both receive packets into them. And
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`then forward packets out. That's what those arrows
`represent.
` And the packet that is intended to be received
`by the computer in the upper right is sent out from the
`computer to the first networking device that I'm
`highlighting. It gets sent to another networking device,
`and then to another and to another, and finally to its
`destination.
` And there are two things that are illustrated
`here that are very fundamental. The first is this notion
`of a data packet, which allows you to take information,
`break it up into very small parts and then transmit it out
`over the network, across multiple different paths.
` There's not one path from this computer to this
`other computer. There are multiple different paths.
` That allows for a distributed network, the
`network of the kind that the Internet is, and that makes
`for a very resilient type of network.
` In fact, in early studying of these types of
`networks, the United States Air Force was particularly
`interested in this kind of networking technology, with a
`brief that it would be resilient in the event of a nuclear
`attack, because there was not one central place where all
`data needed to be sent through.
` Rather, the data in the packet form could be
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`sent through a number of different paths to reach its
`1
`intended destination.
` And the paths are made up of these networking
`devices.
` I'd like to briefly talk about data packets. So
`data packets are small, as I mentioned, units of data. If
`we look at slide 11, we've included a representation of
`what's in a packet, of some of the things that are in a
`packet.
` Primarily, the packet consists of data. So the
`actual information that you want to transmit. But it also
`contains a header. And the header can contain different
`types of information. It will often, if not always,
`contain information about the address of the intended
`recipient of the packet.
` So when the computer on the left wants to
`transmit a packet to the computer on the right, it -- the
`packet can contain this address, this IP address associated
`with the computer on the right. And that address tells the
`networking devices that receive the packet where the packet
`is intended to go.
` This is an example of what -- of how data
`packets can be used to transmit a larger piece of
`information. So on slide 12, we have a picture of a
`sunflower in the lower left-hand corner.
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` Before it's transmitted out over the computer
`network, it's broken up into smaller packets. And so
`although in reality, there are a very -- you know, there's
`a much larger number of packets than the nine that
`represented here, packets are transferred at the tens of
`millions to hundreds of millions per second, it's that kind
`of data flow.
` But I've represented here that the picture has
`been divided into nine different segments. Each of those
`segments is separately sent out as a packet over the
`computer network.
` And crucially, each of the packets does not need
`to take the same path. And so if we look at the right side
`of slide 12, you'll see that some parts of the sunflower
`picture take this path down through the bottom right
`network device, some take the path through the top, to the
`top network device.
` And in any event, all of the packets are
`received at the destination. And because of information in
`the packet, the destination device is able to take those
`different packets, even if they arrive at different points
`in time, reassemble them and, you know, the destination
`device is able to come up with the picture that was
`transmitted through packets by the first device.
` So I'd like to now talk about the networking
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`devices. As I mentioned, networking devices are the
`1
`devices that transmit packets throughout the network. On
`slide 13 I've highlighted a couple of examples of those.
` You've sometimes heard the term "switches" or
`"routers." And there are other names that are given to
`these network devices. As a practical matter, devices
`today frequently, if not always, contain switching, routing
`functionality, all of the functionalities that are -- that
`you may be familiar with, the networking devices are
`contained within these boxes, within these networking
`devices.
` And those network devices are connected in a
`physical way almost always, very frequently, through
`physical cabling. So twisted pair wiring can connect the
`two devices. I've illustrated in yellow one of the
`connections.
` As a physical matter, at the end of those
`cables, you'll have a plug that's inserted into a port in
`the device and at the other end a plug inserted into a port
`at the other end of the device. And that creates the
`physical connections between the devices.
` There are, of course, also -- there is the
`ability to connect devices wirelessly. Very frequently
`between these networking devices, a physical connection is
`used.
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` So tie it back to what I showed your Honor
`earlier, these networking devices include the Cisco device
`that I've shown on the right. As you can see, it's a very
`large device. It has -- the part that I'm highlighting for
`your Honor on slide 15, these include ports, where you plug
`in the cabling into the device, and those cables go out to
`the other networking devices or other devices.
` This is another example of a current Cisco
`product. You can see this one is a smaller example. These
`are often referred to as pizza box devices, because of the
`way in which they resemble the shape of a pizza box. They
`also -- devices like this also have ports in the back for
`interconnecting cabling.
` And this is the representation, your Honor, that
`we're using of the inside of one of these network devices.
`And what we've represented here on the left at the numbers
`1, 2 and 3, those are the ports where you'd plug in the
`cabling. And on the right are more ports where you'd plug
`in more cabling.
` And what happens inside the device, your Honor,
`is that the device takes in packets over the cable, and the
`fundamental -- a fundamental purpose of these devices is to
`decide what port to output the packet to.
` So to give just one example, this pink packet is
`sent from the computer on the lower left, and I'm talking
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`about slide 18, through one networking device and into the
`1
`networking device that we're taking a look inside.
` It comes in on port 3, and the networking device
`must figure out where to transmit that pink packet. It
`makes a determination that that pink packet should be sent
`out of port 4, and that's because the pink packet is
`destined for the computer at the end of the physical
`connection at the end of port 4.
` The way that these networking devices figure
`that out is by using tables. Routing tables are an example
`of this.
` The network device that takes in this pink
`packet can look at the address in the packet and -- in the
`header of the packet and see where the -- where it should
`transmit that packet.
` So in this example, the address 1.2.3.3 is
`supposed to be sent to port 4, and so the networking device
`sends it to port 4 and sends it out.
` There's one more important aspect of networking
`devices that I wanted to mention, and that is that there
`are really conceptually two parts of a network device.
`There's what's called the data plane, that's at the bottom
`of the network device, and then the control plane at the
`top.
` And the data plane is the part of the device
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`that does the work of transmitting packets to the output
`ports. So the packets come into the data plane, and the
`data plane figures out where to send them. And they're
`sent out to the output ports.
` This control plane effectively sits on top of
`the data plane, and it manages the device. It sets up the
`routing tables, in this example, it controls the device, it
`configures the device. It really plays, as the name
`implies, a control function.
` And so finally, I'd like to very briefly
`introduce the pr
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