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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT AND TRIAL APPEAL BOARD
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`- - - - - - - - - - - - - - - X
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`ARISTA NETWORKS, INC., :
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` Petitioner, : Case IPR2016-00308
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`vs. : Case IPR2016-00309
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`CISCO SYSTEMS, INC., :
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` Patent Owner. :
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`- - - - - - - - - - - - - - - X
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` Telephonic Hearing Held Before
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` The U.S. Patent And Trademark Office
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` Patent And Trial Appeal Board
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` Administrative Law Judge Bryan F. Moore
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` Administrative Law Judge Miriam L. Quinn
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` Administrative Law Judge Matthew R. Clements
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` Administrative Law Judge Peter P. Chen
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` Tuesday, February 7, 2017
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` 2:01 p.m.
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`Reported by: Dana C. Ryan, RPR, CRR
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`U.S. LEGAL SUPPORT
`(877) 479-2484
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` 1
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`ARISTA 1028
`Arista v. Cisco
`IPR2016-00309
`
`
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` ------------------------------------------
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` BEFORE THE PATENT AND TRIAL APPEAL BOARD
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` ------------------------------------------
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`- - - - - - - - - - - - - - - X
`
`ARISTA NETWORKS, INC., :
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` Petitioner, : Case IPR2016-00308
`
`vs. : Case IPR2016-00309
`
`CISCO SYSTEMS, INC., :
`
` Patent Owner. :
`
`- - - - - - - - - - - - - - - X
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` Telephonic Hearing Held Before
`
` The U.S. Patent And Trademark Office
`
` Patent And Trial Appeal Board
`
` Administrative Law Judge Bryan F. Moore
`
` Administrative Law Judge Miriam L. Quinn
`
` Administrative Law Judge Matthew R. Clements
`
` Administrative Law Judge Peter P. Chen
`
` Tuesday, February 7, 2017
`
` 2:01 p.m.
`
`Reported by: Dana C. Ryan, RPR, CRR
`
`U.S. LEGAL SUPPORT
`(877) 479-2484
`
` 1
`
`ARISTA 1028
`Arista v. Cisco
`IPR2016-00309
`
`
`
`Page 2
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` Telephonic hearing held before the U.S.
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`Patent and Trademark Office Patent and Trial
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`Appeal Board, on Tuesday, February 7, 2017,
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`commencing at approximately 2:00 p.m., taken by
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`Dana C. Ryan, Registered Professional Reporter and
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`Certified Realtime Reporter.
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` A P P E A R A N C E S
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` ON BEHALF OF THE PETITIONER:
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` RALPH A. PHILLIPS, ESQ.
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` LINHONG ZHANG, ESQ.
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` LAUREN A. DEGNAN, ESQ.
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` ADAM SHARTZER, ESQ.
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` Fish & Richardson
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` 1425 K Street, Northwest
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` 11th Floor
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` Washington, D.C. 20005
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` A P P E A R A N C E S C O N T I N U E D
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` ON BEHALF OF THE PATENT OWNER:
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` LORI A. GORDON, ESQ.
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` DANIEL BLOCK, ESQ.
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` Sterne, Kessler, Goldstein & Fox P.L.L.C.
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` 1100 New York Avenue, Northwest
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` Suite 600
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` Washington, D.C. 20005
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` P R O C E E D I N G S
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` JUDGE MOORE: I'll remind the parties
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`that with the court reporter on the call you need
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`to identify yourself before you speak so that she
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`can correctly record our call today.
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` This is a conference call in
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`IPR2016-308 and 309. On the call with me are
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`Judges Chen, Clements and Quinn.
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` If we can have a roll call of who is on
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`the call, and there's several issues so I'll just
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`start with Patent Owner.
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` MS. GORDON: Good afternoon, Your
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`Honor. This is Lori Gordon with Sterne Kessler.
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`I'm here today with Dan Block.
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` JUDGE MOORE: Okay. And for
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`Petitioner.
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` MR. PHILLIPS: Hello, Your Honor. Here
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`for Petitioner from Fish & Richardson is Ralph
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`Phillips as well as Lauren Degnan, Linhong Zhang
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`and Adam Shartzer.
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` JUDGE MOORE: Okay. There's a number
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`of issues that we need to cover in this call all
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`resulting from emails to the board. I'd like to
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`start with an issue that is from a -- on a
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`February 3rd email. This is an email from -- from
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`Petitioner, I believe. Let me get to the right
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`spot here. Yes. This email from Petitioner in
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`which there's a follow-up on an issue, and I'll --
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`I'll just read it so we're all on the same place.
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`This is from Ralph Phillips: Since the last
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`email, we've continued to meet and confer with
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`counsel of Patent Owner regarding the issue and
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`have reached an agreement. Patent Owner has
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`agreed to narrow its objection -- Petitioner has
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`agreed to narrow its objection and Patent Owner
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`did not object to our correcting filing provided
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`the record reflects a narrower scope of
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`objections.
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` Just so that we have it since we have
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`it on the record, could we -- starting with
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`Petitioner -- just expand a little bit and explain
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`to me what's going on with that issue?
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` MR. PHILLIPS: Sure.
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` This again is Ralph Phillips. So as
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`was laid out in that email as well as the one
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`prior, we had an issue with the filing and service
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`of Paper 22. Again, that was Petitioner's
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`objections to the evidence cited in the Patent
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`Owner's response. Through the meet-and-confer
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`process, as you just -- as stated in the email you
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`just read, we reached an agreement whereby
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`Petitioner agreed to reduce its number of
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`objections. And that, again, provided we're able
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`to reflect that in some way in what gets filed,
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`Patent Owner was okay with us correcting the
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`filing with regard to Paper 22.
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` So really we were just -- again, I have
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`never had this come up before, and we're really
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`looking to the board for some guidance as to how
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`they'd like us to proceed. We could, of course,
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`just file what we intended to file with some
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`addendum. We could potentially file an additional
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`paper that -- or a new paper in its place that
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`just lists the remaining exhibits.
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` Again, we are really just sort of
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`looking for some guidance from the board in terms
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`of how best to go forward.
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` JUDGE MOORE: Okay. And before I go on
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`just -- Patent Owner, do you have anything to add?
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` MS. GORDON: No, Your Honor. I think
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`Patent Owner agreed with the modifications that
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`Petitioners [sic] were making to their objections,
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`but we seek to have the record clear on what
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`objections are currently pending in the record.
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` JUDGE MOORE: Okay. Well, I'm going to
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`suggest -- what we're going to do here is
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`Petitioner should refile the objections and file
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`them with only the currently existing objections.
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`And also on the record there will be a follow-up
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`summary of this call, and it will reflect, you
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`know, the reasons why the objection is there. So
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`between the new objections and the summary of the
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`call, the record should be clear. Okay.
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` MR. PHILLIPS: Sounds good. Thank you,
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`Your Honor.
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` JUDGE MOORE: Sure.
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` So the next issue in that same email is
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`regarding a motion to strike claim charts and
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`other exhibits. So once again, if the Petitioner
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`could fill me in on the issue.
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` MR. PHILLIPS: Certainly. Thank you
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`again. This is Ralph Phillips, Your Honor.
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` Again, we are still on the 309 case.
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`In the 309 case, Petitioner seeks leave to file a
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`motion to strike the claim charts at Exhibits 2015
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`and 2047, as well as other exhibits that are only
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`meaningfully cited in those charts including
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`Exhibits 2016 through 2023, as well as 2027, on
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`the grounds that they contain additional argument
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`beyond what is contained in the Patent Owner's
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`response and as such violate the word count
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`prescribed for Patent Owner's response in 37 CFR
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`Section 42.24.
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` The -- more particularly, the Patent
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`Owner's response relegates significant portions of
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`its arguments regarding secondary indicia of
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`non-obviousness and conception to charts attached
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`to the Patent Owner's response instead of properly
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`making the arguments in the body of the response
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`itself.
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` With regard to the secondary indicia,
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`attached at Exhibit 2015 is a claim chart that
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`purports to map the claims of the '668 patent to
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`certain Cisco and Arista products in the attempt
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`to demonstrate copying. The response itself
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`contains no such mapping, instead states only
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`that, quote, Arista's copying is well-documented
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`and evidences a deliberate effort to duplicate the
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`claim that's subject matter, close quote; and then
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`cites Exhibit 2015. You can see that in response
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`at page 61.
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` Again, this is not a summary of
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`analysis found elsewhere in response; rather, it's
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`a supplemental analysis that goes well beyond what
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`is contained in the Patent Owner's response.
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` And then similarly at Exhibit 2047
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`there's a claim chart that purports to map claims
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`of the '668 patent to a Cisco specification in an
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`attempt to demonstrate prefiling inception.
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`Again, the response contains no such mapping and
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`instead simply cites the chart and represents that
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`it maps the disclosure from the spec to the
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`language of the claims. You can see that in the
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`response at page 36.
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` Moreover, Exhibit 2047 includes
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`citations to other exhibits that are only
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`cursorily cited in the Patent Owner's response
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`often in mass cites with no pincites. For
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`example, if you look at page 56 of Patent Owner's
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`response, you'll see one cite to Exhibit 2016
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`through 2023, just like that; no point cites, no
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`further discussion.
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` Again, this is not a summary of
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`analysis found elsewhere in response, but it's a
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`supplemental analysis that goes well beyond what's
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`contained in the Patent Owner's response.
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` If you look at the certificate of
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`compliance, the Patent Owner's response contains
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`13,791 words, which is a little over 200 pages
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`beyond the -- below the 14,000-word limit imposed
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`by the CFR. By our count, Exhibit 2015 contains
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`3,994 words; Exhibit 2047 contains 2,390 words.
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`So you put them together and effectively they add
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`over 6,000 words to Patent Owner's response. We
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`feel this is a clear attempt at an end-around on
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`the word limits imposed by the CFR and shouldn't
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`be permitted, and for that reason Petitioner
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`respectfully requests leave to file a motion to
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`strike Exhibits 2015 and 2047 and the other
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`exhibits previously mentioned that are only
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`substantially cited therein.
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` JUDGE MOORE: Okay. Patent Owner, do
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`you have a response.
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` MS. GORDON: Yes, Your Honor. This
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`request by Petitioner is extremely untimely.
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`Patent Owner filed our Patent Owner reply in
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`September -- the end of September, over four
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`months ago; yet the first time we're hearing about
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`this proposed motion to strike or any issue with
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`our word count came really after Petitioners filed
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`their reply. And there's no excuse for
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`Petitioners sitting on this issue for four months
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`to the point where Patent Owner is highly
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`prejudiced because we're at a point in the
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`proceeding where if this was an issue, which we
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`believe it was not, we have no opportunity to take
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`leave from the board to modify our Patent Owner
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`response in any way. So we think -- we request
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`the board deny their request because it is
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`untimely and thus prejudicial for Patent Owner.
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` And the second point, Your Honor, is
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`that their request is actually moot. In
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`Petitioner's reply, they've actually asked the
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`board to not consider, I believe, Exhibit 2015,
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`because it exceeds the page limit or for the same
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`argument; yet they don't even mention any issue
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`with Exhibit 2047. So Petitioners have actually
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`made this request to strike or for the board to
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`disregard these exhibits in their Petitioner's
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`reply. Therefore, any motion to strike is moot
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`because they have had their opportunity to make
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`their case, and they chose to make it in their
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`reply, and they chose to only address one of these
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`exhibits, Exhibit 2015.
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` And, so, for these reasons, Your Honor,
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`we request the board deny it. In addition, of
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`course we disagree with Petitioner's
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`characterization that this is beyond the scope of
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`what was permitted.
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` JUDGE MOORE: Okay. Petitioner, do you
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`have a response?
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` MR. PHILLIPS: Yeah. I guess, first,
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`in regard to timeliness, I'm just not aware and I
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`didn't hear any rule cited that requires a
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`specific timing with respect to when a motion to
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`strike is brought. And, furthermore, I'd note
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`that this isn't a situation where -- for example,
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`in a motion to exclude, another declaration could
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`have been obtained or something else could have
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`been done to shore up something that appears to
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`be, you know, questionable for evidentiary ground,
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`authentication or otherwise. This is a 6,000 word
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`overage on a filing.
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` Respectfully, I don't really know what
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`the corrective measure would have been, you know,
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`had we said it back then or brought the motion
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`now. Again, it would be --
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` JUDGE MOORE: And remind me, when is
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`trial set for this case?
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` MS. GORDON: Oral argument is set for
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`March 7th, Your Honor. In about a month from now.
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` JUDGE MOORE: About a month. All
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`right. Thank you.
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` Go ahead. Sorry.
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` MR. PHILLIPS: Right. So again, I
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`mean, my point is just that, A, we're not aware of
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`any timing issues here with regard to the bringing
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`of this motion, first of all, you know, under the
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`rules. And secondly, again in terms of prejudice,
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`I don't really understand what the remedy would
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`have been for, again, trying to correct what
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`amounts to blowing the word count by over 6,000.
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` JUDGE MOORE: Okay. Is that all you
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`have?
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` MR. PHILLIPS: That's the thought from
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`Petitioner, Your Honor.
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` JUDGE MOORE: Yeah. Okay.
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` Patent Owner, any further response?
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` MS. GORDON: Yes, Your Honor. I think
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`in other cases the board has entertained and
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`allowed the patent owner or a party to file a
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`corrected paper cutting down overages, and that
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`would be -- would have been an option that would
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`have been, you know, available to us had we been
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`informed of this in a timely manner. So I
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`disagree with Petitioners that they could sit on
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`this until after the reply was filed because there
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`was no rule against it.
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` These proceedings are supposed to be
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`just and fair, and sitting on a motion to strike
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`for an overage of word count for four months after
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`their reply was filed is not just or fair to the
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`Patent Owner.
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` JUDGE MOORE: Okay. Anything else from
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`Petitioner?
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` MR. PHILLIPS: Yes, Your Honor. I
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`would just note that I think given -- again, given
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`the size of these charts and the clear guidance
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`provided by the CFR, I really don't think it can
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`be put on us -- you know, the onus can be put on
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`us to notify them as to what would be a pretty
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`apparent violation of the filing requirements of
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`PTAB.
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` MS. GORDON: Your Honor --
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` JUDGE MOORE: All right.
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` MS. GORDON: -- I'd like --
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` JUDGE MOORE: Yes, go ahead.
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` MS. GORDON: -- to reply on that. I
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`think Petitioner points that criticize are trying
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`to support their point, but Patent Owner, first,
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`does not believe that these charts exceed what was
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`permitted; we think they're corroborating
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`evidence. And to imply that all 6,000 words in
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`these charts should be counted, I think is
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`improper and intended to prejudice against further
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`patent owners.
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` JUDGE MOORE: Okay. And we've gone
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`back and forth here a few times, but I'm not sure
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`if I heard a specific argument that the material
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`in the reply -- in the response was proper and did
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`not violate page limits, and so maybe you could
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`specific specifically to that for a moment.
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` MS. GORDON: Yes, Your Honor. Dan
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`Block is going to address that for the Patent
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`Owner.
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` MR. BLOCK: Yes. Thank you, Your
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`Honor. So again as my colleague Ms. Gordon
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`pointed out, we believe, for example, starting
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`with the swear behind chart showing conception,
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`again we point in the Patent Owner response to the
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`document explaining that the underlying document
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`is evidence of conception. And all Dr. Almeroth
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`does in his declaration is go through and explain
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`in a little bit more detail about how certain
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`aspects of that document corroborate the fact that
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`our inventors said they conceived of the
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`invention, you know, at least as of the certain
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`date that they set forth in their declaration.
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` So again, the -- the chart is just
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`corroborating conception and is even -- and even
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`further, it's just explaining in a little bit more
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`detail, which we believe is proper to do in the
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`declaration, why the underlying document is
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`evidence of that conception.
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` THE ARBITRATOR: Okay. And what about
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`the issue of copy?
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` MR. BLOCK: Yeah, I apologize. Yeah,
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`so the same point goes for the copying as well.
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`Inside the Patent Owner response, we go into great
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`detail to explain why copying is present. And the
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`chart is just additional -- additional evidence of
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`that copying, additional corroborating evidence of
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`that -- of that copying.
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` JUDGE MOORE: Okay. Anything from
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`Petitioner in response?
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` MR. PHILLIPS: Yes. Yes, Your Honor.
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`Thank you.
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` The only point I'd make is that both
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`for conception and copying, there's a requirement
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`that patent owners show an element-by-element
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`analysis of how the specification or the alleged
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`copying device is practicing the claim. It's --
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`it's no different than what Petitioner has to do
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`when it's trying to invalidate the claims.
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` If we had -- if we had put in our
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`petition that these claims are anticipated, please
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`take a look at chart whatever in doctor
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`so-and-so's declaration, we would be having the
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`same call in the opposite direction and
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`justifiably so.
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` So I just think, you know, referring to
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`the pages that I mentioned earlier, you'll see
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`that in the response there are very cursory
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`references to these charts, and the charts do the
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`heavy lifting or purport to do the heavy lifting.
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`It's improper, and we think they should be -- they
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`should be struck.
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` JUDGE MOORE: Okay. Unless there's
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`anything further, I'm going to take just a moment
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`to confer with the panel, and then I'll be back on
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`this call in just a moment.
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` (Recess -- 2:20 p.m.)
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` (After recess -- 2:24 p.m.)
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` JUDGE MOORE: Okay. This is Judge
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`Moore back on the call. I think the final
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`issue -- to that previous issue, we're going to
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`take that issue under advisement, and following
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`this call there will be a summary of this call
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`which will include an order indicating how -- how
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`that issue will be handled.
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` Okay. So the final --
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` MS. GORDON: Thank you --
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` JUDGE MOORE: Was there something from
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`the parties?
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` MS. GORDON: Oh, no. Just saying
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`thanks, Your Honor.
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` MR. PHILLIPS: Thank you from
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`Petitioner as well.
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` JUDGE MOORE: I think the final issue
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`is an email from Patent Owner requesting
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`authorization to file a motion to strike in the
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`308 and the 309 cases. So we'll start with the
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`Patent Owner if she could explain the issue.
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` MR. BLOCK: Absolutely. Your Honor,
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`this is Dan Block for Patent Owner. So what I'll
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`do is start with the 308 case, and then do you
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`want me to move on to the 309 after that or --
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` JUDGE MOORE: Yeah, we can handle them
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`together. That's fine.
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` MR. BLOCK: Okay. Absolutely.
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` So at a high level for both cases, we
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`believe Petitioner has -- has included a number of
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`arguments in their replies that exceed the scope
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`as forbidden under Rule 42.23.
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` Starting with -- starting with 308, the
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`first issue relates to an exhibit that was
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`included with the reply, and its cited on page 15.
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`And this is Exhibit 10 -- 1023. I'm sorry. You
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`know what? Your Honor, I was starting with the
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`309 -- 309 number. I apologize for the confusion.
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`I get confused myself often. So I'll start again
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`with 308, which is the '668 patent -- which is the
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`'537 patent. I did it again.
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` So with the '537 patent, again there is
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`a number of sections -- in fact, we believe almost
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`all the sections of the reply are outside the
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`scope. Not to belabor the point, I think I was
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`just going to start with one example unless Your
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`Honors want to hear all the areas we believe that
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`exceed the scope.
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` JUDGE MOORE: Well, that would be for a
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`motion so just if you'll give us enough that we
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`have an idea of what we're dealing with.
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` MR. BLOCK: That's what I figured. And
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`this is on pages 11 through 13. And here Arista
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`is arguing that the combination of Sandick and
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`AgentX and Mathney teach -- teach certain elements
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`under their proposed claim instruction. But in
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`the institution decision, the board declined to
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`institute the AgentX, Sandick and Mathney grounds;
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`nevertheless, in the Petitioner's reply, the
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`Petitioner is re-raising the Mathney ground. So
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`we believe that that's a clear example of
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`something that exceeds the scope permitted by the
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`reply.
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` JUDGE MOORE: All right. And do you
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`have another example or no?
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` MR. BLOCK: Absolutely we have another
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`example as well.
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` And, so, on pages 18 through 21, Arista
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`is again arguing for the (inaudible) that, one, a
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`person of ordinary skill in the art would
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`understand that you could use a CLI to figure this
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`AgentX process to generate registration requests,
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`and to do this they cite to some deposition
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`testimony of their expert Dr. Mohapatra. But just
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`a few questions later in that deposition -- and
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`that's Exhibit 2003 -- Dr. Mohapatra admits that,
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`number one, that's a new opinion of his and,
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`number two, it wasn't included in his declaration.
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`And the cite for that is on page 127, lines 8
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`through 13.
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` So again we believe that that is a new
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`argument and is impermissible in the Petitioner's
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`reply because Arista's own expert is admitting
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`that it's a new argument and that it wasn't
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`included in his declaration.
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` JUDGE MOORE: All right. Maybe we
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`should go to the other case and get a couple of
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`examples there before we give the Petitioner an
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`opportunity to discuss the issue.
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` MR. BLOCK: Absolutely. So moving on
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`to the 309 case which is the '668 patent. So on
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`page 15 of Petitioner's reply, Arista cites to a
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`new exhibit, Exhibit 1023, which is an Internet
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`archive printout, which purportedly shows that the
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`CoreBuilder exhibit is available for download.
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`This is a brand new exhibit cited -- cited in the
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`reply.
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` Now, in -- Patent Owner timely objected
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`to the evidence included in the petition including
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`the CoreBuilder exhibit as well as some
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`declarations that purportedly showed the public
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`availability of the CoreBuilder exhibit. And
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`Petitioner had the ability to respond with
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`supplemental evidence, and it could have included
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`this Exhibit 1023 Internet archive in that
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`supplemental evidence, but instead they chose to
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`include it in their reply for the first time where
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`we don't have the opportunity to address it, which
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`we could have done in our Patent Owner response
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`had they timely included it with their
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`supplemental evidence.
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` That's the first point. And --
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` JUDGE MOORE: Okay. And on that point
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`in your reply, do you make an argument that the
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`CoreBuilder or whatever it was called is not
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`publicly available? Do you make that argument in
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`your reply --
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` MR. BLOCK: Yes --
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` JUDGE MOORE: -- in --
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` MR. BLOCK: -- we do.
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` JUDGE MOORE: -- your response? Excuse
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`me.
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` MR. BLOCK: Yes, we do, Your Honor.
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` So in our Patent Owner response, we
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`raised that the CoreBuilder was not publicly
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`available and addressed some of the issues there.
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`And again, we could have addressed this 1023 had
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`it been presented to us, but now we don't have the
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`opportunity to do that.
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` JUDGE MOORE: Right. Right.
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` There's also the point, though, that
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`the purpose of the reply is -- is to respond to
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`your arguments and -- and respond. And certainly
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`because Petitioner has the burden, it's usually
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`the case that the Petitioner get the final go
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`on -- on putting arguments and possibly evidence
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`on the record at this time; correct?
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` MR. BLOCK: Well, I understand that
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`point, Your Honor. But, first of all, I think
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`that Arista was required to put forth all the
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`evidence in the petition. But, again, we objected
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`to the evidence they put forth and that would have
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`been the time in their supplemental evidence
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`response to be able to include this exhibit, and
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`had they done that -- had they done that we would
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`have had the ability to respond to that in our
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`Patent Owner response. And, so, this isn't a case
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`where they're responding to an argument. This is
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`evidence they should have either included in the
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`petition, and to the extent they didn't include it
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`in their Petitioner, they certainly should have
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`included it in their supplemental evidence to our
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`objections.
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` JUDGE MOORE: Okay. Maybe another
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`example.
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` MR. BLOCK: Yeah. Absolutely.
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` So there's another argument that Patent
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`Owner makes with respect to the -- with respect to
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`the court services element of the claims, and for
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`the first time Patent Owner is -- Patent Owner is
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`arguing -- is arguing that Amara's packet
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`classifiers -- and this begins on -- begins on
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`page 8 -- are the claims for its services.
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` But if you read the petition -- if you
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`read the petition in this case, it's clear as day
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`that -- that in the petition Arista is arguing
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`that the court services are disclosed by -- by
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`the -- by a different element of -- of Amara.
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`And -- and that's on page, I believe, 26 of the
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`petition. And, so, now they're changing positions
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`and arguing that -- and arguing that the packet
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`classifiers of Amara disclose -- disclose the
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`court services.
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` So again, we believe that's a new
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`argument that exceeds the scope permitted in the
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`Petitioner's reply.
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` JUDGE MOORE: Okay. All right. I
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`think we've got enough of a flavor of what's going
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`on.
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` Petitioner, your response.
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` MR. PHILLIPS: Good afternoon, Your
`
`Honor. This is Linhong Zhang for Petitioner.
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`I'll be addressing those arguments related to the
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`308 patent [sic].
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` And for the 308 patent, I believe
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`counsel raised two issues. One is the combination
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`of AgentX and Mathney and Sandick on pages 11
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`through 13 of our reply. And that goes -- just in
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`terms of what we can address in our reply, the CFR
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`specifically allows us to address arguments that
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`were raised by the Patent Owner as part of this
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`preliminary Patent Owner response as well as the
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`Patent Owner response. So the combination of
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`AgentX, Sandick and Mathney, that was addressed
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`in -- on page 40 of the Patent Owner's preliminary
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`reply, and our reply is just addressing the
`
`arguments that were raised there.
`
` With regard to the second point, which
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`is about the CLI, and the CLI being the router
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`configuration subsystem, that is an argument that
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`was raised by Patent Owner -- Patent Owner
`
`response. And that could be found on page 29
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`through 30 of the Patent Owner response which
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`specifically says that Petitioner has not
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`identified a router configuration subsystem.
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` In our petition -- our original
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`petition on pages 27 through 29, we address this
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`issue, as well as Dr. Mohapatra's declaration on
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`page 90 to 94. And our reply on page 18 through
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`21 is to verify any confusion that might have been
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`raised by Patent Owner in their reply.
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` JUDGE MOORE: Okay. I need to circle
`
`back to the first issue. This -- if I heard you
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`correctly, you're replying to something that was
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`in the preliminary response but on a ground that
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`we didn't institute on. So help me out with why
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`that's relevant in this trial anymore.
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` MR. ZHANG: So it's our understanding
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`that the Fifth Circuit has said that the board is
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`not bound by any findings its made in an
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`institution decision, and we understand that the
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`board can change its mind with regard to claim
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`construction, and claim construction is the issue
`
`that continue -- continuing.
`
` So we argue the claim construction
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`issue as part of our reply, and we want to show
`
`the relevance of the claim construction to --
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`to -- to show that it's not an academic exercise
`
`and that it impacts the grounds that the board
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`would institute on.
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` And I think if the board were to change
`
`its mind and adopt our claim construction, the
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`rules specifically allow for the board to extend a
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`schedule by six months and account for the
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`grounds -- the rejected grounds and reconsider
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`them. So that's why we included that information.
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` JUDGE MOORE: Okay. And I'm going to
`
`assume that that -- what you've just said there is
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`not in any paper. There's no argument in any
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`paper that the consequence would be the claim
`
`would change; we would add a ground and then add
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`times. Is that what you argued in your paper, or
`
`is that something we're getting on this call?
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` MR. ZHANG: That's not something we
`
`said in our paper, but that's something that
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`specifically -- we believe is specifically
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`permitted by the rule.
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` JUDGE MOORE: Okay. Well, why don't
`
`you just hold on for just a moment, and I'll be
`
`back to the call in just a moment.
`
` (Recess -- 2:37 p.m.)
`
` (After recess -- 2:40 p.m.)
`
` JUDGE MOORE: Okay. This is Judge
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`Moore back on the call. I think you were -- we
`
`had gone back for further explanation on your
`
`argument about the Matheny reference again. I
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`think probably we should look at that, where the
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`argument is right now. I me
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