Finance against blue art cooperation is to powers. Thank you, Your Honor. May I please the court? I would like to begin, if I may, with a discussion of the validity issues relating to the 918 pact. There are two issues on this appeal. The first is a question of claim construction, and the second is a question of what may be inferred via the doctrine of the inherently in order to find anticipation. The ground for invalidation below was anticipation by a single reference, the Sandberg reference. The Sandberg reference, the portion relied upon, constituted exactly six sentences. It's a very sparse discussion, and most importantly, I think for this appeal. The Sandberg reference, as is evidenced by blue arcs or evens on appeal, is really quite similar to the prior art described in figure one of the 918 pact itself. In our view, it is no more powerful than the prior art described in figure one of the 918 pact itself. Indeed, blue arc argues on this appeal, as it did below, that the prior art described in the 918 pact in figure one invalidates the 918 pact itself, on very much the same grounds as the Sandberg reference relied upon below. It is our view that that argument reflects a misunderstanding of the 918 pact, which should not be invalidated based on the prior art described in its own patterns in figure one. The claim construction issues specifically is, well, how should what is the proper construction of a file system control module? The argument from blue arc, and ultimately the basis for invalidation based on Sandberg, was that that module may be any general purpose processor, as long as that general purpose processor performs file control functions. In our view, that fundamental misunderstands the purpose and essence of this invention. This invention describes, throughout specification, repeatedly, as one of its fundamental tense, the idea of taking away processing power for specific functions, taking that away from the general purpose processor, which has several over functions they have to perform, and distributing that functionality, that software processor functionality, to other places in the system, so that you have specialized modules, if you will, specialized modules that are not burdened by the overhead of running an entire operating system, which would be present in a general purpose processor, such as that president Sandberg, such as that present in figure one of the 918 pact in the prior art
. That is the fundamental claim construction issue. The district courts claim construction, when they performed a mark in process, which there were two, did not construe this claim limitation. It construed the term module, the parties already give up what a module was, but not the composite term, file system control module. That was construed for the first time as part of the summary judgment process, and in that process, in our view, the district court bird. The specific issue then, there is no dispute that Sandberg is a general purpose processor, not the type of specialized processor described in that. It is a VAC 750, there is no debate about that fact. So the claim construction issue presented to the court in this case is a square one. In our view, a fair reading of the specification does not commit a claim construction, which holds that the file system control module may be any general purpose processor, as long as it performs filing functions. So, in effect, are you saying that in the claim, when the claim talks about the two specific modules that those modules are restricted to performing only one function? No, you are not. In fact, as both sides pointed out, in the specialized modules, in the preferred body, those specialized modules may perform other functions, but they are specialized primarily to perform the function. Either the network control functions or the file system control functions. The distinction that is drawn in the specification that is important for our purposes is not that it is 100% dedicated. In fact, the specification as both sides are, it makes clear that's not true. The point of this invention is to take away the functions that are necessary for our file system away from the general purpose process, which has all of the overhead of, for example, as the patent talks about, the Unix operating system
. And the patent goes at great length to say that the Unix, that they picked the Unix system, not because that is the only environment in which this invention is intended to operate, but because that was at the time one of the places where the greatest bottlenecks occurred. And in column two, it is expressly only the example, and it explains why they picked the Unix operating system as an example, but the concept of the invention. When you read the specification clearly, and I believe column two is to that effect, column four, column eight, line 25. Each of those makes clear that what this invention is about is taking away the primary functions, and they're several, from of this type of system, taking that away from the general operating system, and distributing them so that the processors, which perform those functions, are not burdened with all the overhead associated with the normal operating system. And that does not mean it has to be 100% dedicated, indeed the specification is not so dedicated. It does mean that it's specialized, and the primary point from this specification is that you have one processor with this associated software that is specialized in one area, maybe doing other things as well. Another processor specialized in another area, but neither one burdened by the overhead of the operating system. Well, I guess it's the last thing you mentioned, that is the thing that's troubling me a little bit, is that neither one is burdened by any other overall operating functionality. It's not, I believe you're honor that it's not burdened by other functionality. The point is that an overall operating system such as Unix has a great deal of overhead associated with it. That isn't related to discrete bits of functionality that are necessary to run a particular implementation of a program underneath it. And the idea of this invention is to take out pieces of functionality away from that level over there. It's not that those specialized processors make nothing else, is that they are not part of the main Unix operating system, Unix being the example here. And as I said, both parties recognized and stated in the Greeks that even in the preferred body, it is not 100% that it is true
. Let me directive one specific item that may or may not be a minor item, and I just, it was troubling me as I went through. And claim 8, a dependent claim, talks about the file system control module returns that specified retrieval data directly to said network control module. But the direct connection is also set forth in claim statement. It seemed to me that claim 8 didn't really add much of anything at all, and is of relatively insignificant. And the consequence is that right or am I glossing over something? If I actually your honest question correctly, the direct connection in claim 8, you believe is without a better direct connection in claim 7. It appears that way. The direct connection in claim 7 that is described is between the network control module and the file system control module. Correct. The direct connection in claim 8 is between the file system control module and the net 6th and the network system control module. It looks to me like it's pretty much the same. And so my question is, is it pretty much the same? Your argument in your briefs doesn't really emphasize that claim at all. It does not. Which seems to me consistent with the notion that the claim doesn't have any major significance, but I want to make sure I'm not glossing over something. We believe the direct connection is the president of both
. And we do not already be the claim 8 as of in materials at the time. Right. Thank you. Returning to the question of validity in the 9th way, it happened and Sandberg. Taking the core question of claim construction. The first place, obviously, to this course to your students, we look is the claims. And the claim doesn't merely say a processor or a general module. It describes these processor by its function. And you have a network control module. You have a file system control module. And so that if you're looking at the claims by themselves as a starting point, the starting point suggests a definition that is related to the function described in the claim itself. We do not suggest that that is entirely a dispositive. We do suggest however it is important. Because the claims were written in a particular way to describe those modules according to their function
. And that is what we were talking about. You then, of course, go to the specification. The specifications I've described says several times at the point of this is to allocate those specialized functions away from the host. So as to avoid burning them with the host's overhead. And the prior arc was expressly distinguished on this grounds. Column 3, column 7, elsewhere in the specification. Repeatedly discussing the prior arc, including figure 1 relied upon by BlueR. As saying, that's a general purpose processor. It's not specialized in the sense that we're talking about. So in our view, the specification makes that quite clear. Also in the summary of the invention, it describes that separation from the host as being important. In other words, optimized, dedicated, specialized, or used throughout the specification. Now the primary concern by the district court, and at least stated in the basis for decision, appeared to be a perception that the portions of the specification to which I just refer, were limited to the preferred and bottom. And not description of the invention as a whole
. And on that we just respectfully disagree with Judge Patel. The discussions, for example, in the summary of the invention, was not a discussion of a particular embodiment. The distinctions of the prior arc to which I refer, were not distinguishing merely the preferred embodiment. And the discussions of the importance of separating the process, specialized processing functions from the host, are not discussions merely to the preferred embodiment. Those are discussions of what these inventors believe was important to part of their invention. And what in the specification leads you to that conclusion? Because there is their language that suggests as much. The language that we're referring to, the answer of course, in the summary of the invention. These are the portions that we quoted in the brief. But if you look, for example, column four, there's a discussion of the operating portions of the operating systems that apply in 35, each being, quote, optimized to a particular type of work, which is dedicated. And optimized doesn't say, mean of course, only doing that work. It means stripped down from the overall system as the rest of that entire data makes clear to be primarily dedicated to those functions. So there are the forms of them more quickly. And the other descriptions that we provide, for example, column three lines 52, the 57, the 73, the 54, which the prior artist has repeatedly distinguished on that precise grant. Because it seems to me that there may be any number of ways to implement the invention to achieve the objectives that are set forth that are not necessarily limited to the particular examples that are described
. Precisely. And the specification goes to great lengths to say that. In, for example, column two, where it points out at lines 11 through 25 that these are particular, that the bottom is chosen, our particular bottom is for the Unix environment. And that that Unix environment was chosen for a particular reason, but that the invention goes beyond that. And its idea is this specialized nature of the processors, rather than having one overall processor that runs at all burdened by the operating system. But I think the owners captured exactly what these inventions say that are mentioned. I would want to go on a ordinary skill in the art of re-age. Re-added patents. I believe the language that you've been dwelling on. I believe you're on the one ordinary skill in the art would understand that the purpose of this invention is to take processing. Was there anything said by someone who was supposed to be a representative of someone's skill in the art at the trial? At the trial court? It was summary judgment, you're on a document. I know summary judgment at the trial court. Yes, you are. Dr
. Falace gave extensive declarations throughout this process. The district court had a rolling process in terms of both Mark and which was conducted as I said, at least two different hearings. And then also during summary judgment, there were extensive declarations by both sides of that course, both of skill and the art. And Dr. Falace said repeatedly that is the fact the purpose of this invention in his mind. And that was offered on summary judgment this year. So, Sandberg wasn't cited by the examiners, that right? I believe that's true. But you agree that Sandberg is the closest of the various references. I don't agree that Sandberg really provides anything more than figure one of the patent. At its core, we're really talking about six sentences of Sandberg, truly. We look at what's cited by the district court, what's cited by Blueark in its motions. We're limited to six sentences trying to make this something other than what was just a standard Blueark, a standard rather prior to that. One sentence could anticipate, are you saying that the complexity is such that six sentences could not have enabled that which it's supposed to be disclosing? I'm saying that six sentences, I certainly agree that six sentences, if they were very good sentences, could anticipate. I don't think these sentences come close
. And the reasons for pointed out, at great length by Dr. Falace, who pointed out that there's, and by the district court, the district court straightforwardly said, there are many parts, many aspects of these claims that are not shown at all on Sandberg, for example, a communication path. And that's where we go to a herancy. But the first question was the claim destruction issue. On that issue, I think it's important to note that Blueark does not dispute the portions that we sought. And of course, indeed, acknowledges the relevance of those portions of the specification to the question of claim destruction. Blueark's argument to this court is really a bit orthogonal to the portions that we've raised about the specification. It's argument is that the claim uses the term comprising. And that that term means that you can change by adding elements to the claim, which it's true that comprising is an open-ended claim, which permits you to add elements not present there. It does not permit you, though, as the spectrum cases and other cases of this court make clear, it does not permit you to expand an elementation that is limited on its face or by the specification. To make it broad, that specification limits what that particular claim limitation is. And you can't change that. And even the cases they cite, you know, the telecom case, the genetic case, those cases say that what comprising are to do is add elements to a system. Okay, Mr
. Paz, let's hear from the other side. We'll save your rebuttal time. Thank you. Mr. Farrell. If you support Brian Farrell, I'm going to have to send it to the blueark corporation. I'd like to talk about a couple of points that counsel for NetApp raised before I get into the claim construction argument. I think two points that are very important for the court to keep in mind. One, at the district court, NetApp applies never asked for construction of the term file system control monotural. Not only did they not ask for construction at Markman, but they moved for summary judgment of infringement. And in that motion for summary judgment of infringement, they never reduced any evidence that the blueark's file server actually complied with the claim construction it's asking the court to adopt today. In other words, the claim construction we're hearing from NetApp on this appeal is one that arose only after seeing a motion for summary judgment of in validity, at which point network compliance realized it needed to imbue these claims with further limitations in order to avoid in validity. Second point regarding Sandberg, which is clarified. Sandberg is a 10 or so page article. I don't have to precise page moments, but it is four more than six sentences. Russell Sandberg was one of the inventors of NFS, the network file system and son right for systems, and the article describes all the functionality of NFS. And indeed, blueark relies upon much of that functionality in order to explain how the functional requirements of the claims are anticipated by the Sandberg reference. Now, in respect to the claim construction argument, file system control module was properly interpreted by the district court for several reasons. One, the claim itself does not include the limitations that network compliance asked the court to adopt. Two, the specification, nowhere, has the definition that network compliance asked the court to adopt. And three other claims in the parent 366 patent do have those limitations. And yet the silence in the claims that issue here is, I think, compelling evidence that those limitations should not be read where the patent is chosen not to include them. So the claims are not construed in the abstract. And if you read the specification fairly, don't you come away with the clear sense that this invention is not a real thing. The invention is directed to exactly the subject matter that Mr. Powers was arguing that these are separate modules that are independent if you will of a general overall operating system. That's the whole point is to provide the server that's not burdened with the complexity of performing multiple overlapping tasks. So I guess the direct question is why is Mr
. I don't have to precise page moments, but it is four more than six sentences. Russell Sandberg was one of the inventors of NFS, the network file system and son right for systems, and the article describes all the functionality of NFS. And indeed, blueark relies upon much of that functionality in order to explain how the functional requirements of the claims are anticipated by the Sandberg reference. Now, in respect to the claim construction argument, file system control module was properly interpreted by the district court for several reasons. One, the claim itself does not include the limitations that network compliance asked the court to adopt. Two, the specification, nowhere, has the definition that network compliance asked the court to adopt. And three other claims in the parent 366 patent do have those limitations. And yet the silence in the claims that issue here is, I think, compelling evidence that those limitations should not be read where the patent is chosen not to include them. So the claims are not construed in the abstract. And if you read the specification fairly, don't you come away with the clear sense that this invention is not a real thing. The invention is directed to exactly the subject matter that Mr. Powers was arguing that these are separate modules that are independent if you will of a general overall operating system. That's the whole point is to provide the server that's not burdened with the complexity of performing multiple overlapping tasks. So I guess the direct question is why is Mr. Powers correct in arguing that these claims properly cover the invention disclosed that is directed to these specific modules and not overall operating system. So I guess two points to keep in mind. First, your honor, the, as I'm sure the court is well aware, the patent team they choose to claim different aspects of the invention. Obviously it does not need to claim in each and every claim all aspects for all benefits that it purports to describe the specification. With that, we should give due respect to the language that the patent is chosen to use in those claims and realize that the patent team may make choose to omit certain benefits in some claims and claim them another. Second, the file system control module is a term that is nowhere found in the specification. Not only is it nowhere found in the specification, but it is not even ever described in the specification as a unit. This is an important point. And if the court has the visual aids that we submitted, if I could direct you to exhibit eight two, this is an aid that we used in the district court. It's a color marked up version of figure two of the patent. And it reads this claim upon the embodiment. And what you see is the network control module in blue, the mass storage device in brown, the communication path in orange, and the file system control module is not the file controller, which is somewhat confusing. But it necessarily must be three, at least these three components. The storage processor, the system memory and the file controller
. Powers correct in arguing that these claims properly cover the invention disclosed that is directed to these specific modules and not overall operating system. So I guess two points to keep in mind. First, your honor, the, as I'm sure the court is well aware, the patent team they choose to claim different aspects of the invention. Obviously it does not need to claim in each and every claim all aspects for all benefits that it purports to describe the specification. With that, we should give due respect to the language that the patent is chosen to use in those claims and realize that the patent team may make choose to omit certain benefits in some claims and claim them another. Second, the file system control module is a term that is nowhere found in the specification. Not only is it nowhere found in the specification, but it is not even ever described in the specification as a unit. This is an important point. And if the court has the visual aids that we submitted, if I could direct you to exhibit eight two, this is an aid that we used in the district court. It's a color marked up version of figure two of the patent. And it reads this claim upon the embodiment. And what you see is the network control module in blue, the mass storage device in brown, the communication path in orange, and the file system control module is not the file controller, which is somewhat confusing. But it necessarily must be three, at least these three components. The storage processor, the system memory and the file controller. Why must it be that? Because the claim itself requires that the file system control module be connected to the mass storage device. That's the storage processor. It also requires that the file system control module satisfy file system requests and return specified retrieval data to the network control module. For that to happen in the embodiment, it you require deducing the system memory, which serves as a parking lot, if you will, for data while the processors do their processing of the request. The important point is these, these, this aggregate of structure components that is the claims file system control module is never associated with this language that says any one of these components, the namely the file controller or the storage processor must be optimized. And indeed the storage processor serves a function that is, it's not only serves the file controller, it also serves the host, the host being in the embodiment, what is running the Unix operating system. The storage processor is satisfying the host's requests for data out of the mass storage device. It's satisfying the host's request for administrative tasks. So the idea of saying, well, I'm going to, I'm going to look at a description of one of the processors and where it says in only two points by the way in specification, but it says one of these processors is dedicated. And I'm going to read that into this aggregate of components. I don't think that follows the course jurisprudence on claim construction. The, the other point I'd like to talk about is claims 19 and 20 of the 366 patent. Those claim 366 patent is the parent to the 9118. And in those claims, they are, they are set up with a, I think, analogous structure
. Why must it be that? Because the claim itself requires that the file system control module be connected to the mass storage device. That's the storage processor. It also requires that the file system control module satisfy file system requests and return specified retrieval data to the network control module. For that to happen in the embodiment, it you require deducing the system memory, which serves as a parking lot, if you will, for data while the processors do their processing of the request. The important point is these, these, this aggregate of structure components that is the claims file system control module is never associated with this language that says any one of these components, the namely the file controller or the storage processor must be optimized. And indeed the storage processor serves a function that is, it's not only serves the file controller, it also serves the host, the host being in the embodiment, what is running the Unix operating system. The storage processor is satisfying the host's requests for data out of the mass storage device. It's satisfying the host's request for administrative tasks. So the idea of saying, well, I'm going to, I'm going to look at a description of one of the processors and where it says in only two points by the way in specification, but it says one of these processors is dedicated. And I'm going to read that into this aggregate of components. I don't think that follows the course jurisprudence on claim construction. The, the other point I'd like to talk about is claims 19 and 20 of the 366 patent. Those claim 366 patent is the parent to the 9118. And in those claims, they are, they are set up with a, I think, analogous structure. So they call for a network, they call for essentially two components, a network interface and a file server processor. It goes on to describe the functions of the file server processors responding to file system requests. And unlike these claims, those claims specifically say that the file system, the file server processor is a dedicated and be satisfied essentially only in FS requests. And those, that's the essence of what network appliance would have the core read into these claims for such language is missing. I would like to turn the remaining time to our cross appeal on non infringement of the 9118 patent because very similar claim construction issues come out there. As you know, we have cross appealed the finding of infringement of these identical claims in the basis of the cross appeal is what we believe was the court's erroneous claim construction of the term network control module and the functions it is to perform. This claim, as we've been talking about, has two modules. The first is the network control module. And we believe, and we've always said in this case, that the essence of these claims and the purported novelty of these claims is not the file system control module where the language of the claims doesn't claim anything particular, but the network control module where the language of the claim itself, forget the specification, the language of the claim itself, claims a unique and novel processing on this network control module that is distinguished over the prior all. Namely, the language of the claim says that the network control module receives file system requests from the network and prepares file retrieval requests. Now, by simple grammar, those two things must be different. File retrieval requests is not the same as a file system request and as we explain by necessity in order to get to a request and changing from a file system request to a file retrieval request. The first one must process it at the application layer, the top layer of the traditional OSI stack of network communications. The court tell that that was not required
. So they call for a network, they call for essentially two components, a network interface and a file server processor. It goes on to describe the functions of the file server processors responding to file system requests. And unlike these claims, those claims specifically say that the file system, the file server processor is a dedicated and be satisfied essentially only in FS requests. And those, that's the essence of what network appliance would have the core read into these claims for such language is missing. I would like to turn the remaining time to our cross appeal on non infringement of the 9118 patent because very similar claim construction issues come out there. As you know, we have cross appealed the finding of infringement of these identical claims in the basis of the cross appeal is what we believe was the court's erroneous claim construction of the term network control module and the functions it is to perform. This claim, as we've been talking about, has two modules. The first is the network control module. And we believe, and we've always said in this case, that the essence of these claims and the purported novelty of these claims is not the file system control module where the language of the claims doesn't claim anything particular, but the network control module where the language of the claim itself, forget the specification, the language of the claim itself, claims a unique and novel processing on this network control module that is distinguished over the prior all. Namely, the language of the claim says that the network control module receives file system requests from the network and prepares file retrieval requests. Now, by simple grammar, those two things must be different. File retrieval requests is not the same as a file system request and as we explain by necessity in order to get to a request and changing from a file system request to a file retrieval request. The first one must process it at the application layer, the top layer of the traditional OSI stack of network communications. The court tell that that was not required. The court said that any processing at any layer of the traditional seven layer OSI stack was sufficient for preparing. We claim that that is error and it's error because the patent is clear that when it's talking about requests, it's talking about the application layer. When it's talking about the lower layers, it's talking about packets. That's when you see descriptions, for example, on column five, there's a description about the processing at the ethernet layer, column five lines 40 to 42. They are referring to packets. When it talks about requests, it's the application layer. I believe the evidence is undisputed that to the extent there is a, to the extent that the court's claim construction on this term is corrected such that preparing file retrieval requests has to occur as the top layer, it's undisputed that the blue arc file servers don't do that. Blue arc file servers are much like, in fact, very close to the X-LAN board that is disclosed in the Sandberg prior arc. That is, blue arc file servers at the, at what is accused is to be the network control module. Process is only up to the UDP layer, just like the X-LAN board, and the rest is processed elsewhere. That's a correction in the claim construction should result in a reversal of defining infringement of these claims. And with that, there's no further questions. I'll reserve my time for rebuttal on the cross appeal. Any questions? Thank you, Mr
. The court said that any processing at any layer of the traditional seven layer OSI stack was sufficient for preparing. We claim that that is error and it's error because the patent is clear that when it's talking about requests, it's talking about the application layer. When it's talking about the lower layers, it's talking about packets. That's when you see descriptions, for example, on column five, there's a description about the processing at the ethernet layer, column five lines 40 to 42. They are referring to packets. When it talks about requests, it's the application layer. I believe the evidence is undisputed that to the extent there is a, to the extent that the court's claim construction on this term is corrected such that preparing file retrieval requests has to occur as the top layer, it's undisputed that the blue arc file servers don't do that. Blue arc file servers are much like, in fact, very close to the X-LAN board that is disclosed in the Sandberg prior arc. That is, blue arc file servers at the, at what is accused is to be the network control module. Process is only up to the UDP layer, just like the X-LAN board, and the rest is processed elsewhere. That's a correction in the claim construction should result in a reversal of defining infringement of these claims. And with that, there's no further questions. I'll reserve my time for rebuttal on the cross appeal. Any questions? Thank you, Mr. Ferrell. Thank you, Mr. Calvary. Thank you, Your Honor. Council for blue arc begins by arguing that we're not permitted to argue the construction we've argued here on file system control module because we did not proper that construction at the district court in Markman. It is true that Neter-side requested a construction, as I said earlier, of the composite tone file system control module. It is not true that we did not argue this below. In fact, we submitted the declaration of Dr. Falace at 5543, the appendix, and specifically, I believe paragraph 24 there. He's described specifically in opposition on some of the judgment the position we're taking here. So it was definitely argued below that this issue was joined below the second argument with regard to claim construction. I'll note that that counsel does not come to grips before you with the issues on the specification that we brought in an argument the specification bought as you said in Phillips and other cases to be the best guide to what this invention is instead of what counsel focuses on is claims 19 to 20 of a different path. The same pattern, the 366 pattern, which is related, but not the same pattern. And with different claims, and the argument being made to you is that if in those different claims with different claims, in a different pattern, we use the word dedicated
. Ferrell. Thank you, Mr. Calvary. Thank you, Your Honor. Council for blue arc begins by arguing that we're not permitted to argue the construction we've argued here on file system control module because we did not proper that construction at the district court in Markman. It is true that Neter-side requested a construction, as I said earlier, of the composite tone file system control module. It is not true that we did not argue this below. In fact, we submitted the declaration of Dr. Falace at 5543, the appendix, and specifically, I believe paragraph 24 there. He's described specifically in opposition on some of the judgment the position we're taking here. So it was definitely argued below that this issue was joined below the second argument with regard to claim construction. I'll note that that counsel does not come to grips before you with the issues on the specification that we brought in an argument the specification bought as you said in Phillips and other cases to be the best guide to what this invention is instead of what counsel focuses on is claims 19 to 20 of a different path. The same pattern, the 366 pattern, which is related, but not the same pattern. And with different claims, and the argument being made to you is that if in those different claims with different claims, in a different pattern, we use the word dedicated. That must mean that the absence of the word dedicated in these claims means they're not dedicated. As an initial matter, this court has rejected that proposition in many cases from nice terms to craft others pointing out that patent fees will in different claims phrase the same concept in different ways. And the issue was not looking at the word and saying the absence of that word in this claim must mean it was not intended, but you must look at the specification to determine what was intended. That is the argument we're making and that is the argument that counsel blue art does not really come to grips with. I will address briefly the cross appeal argument that's made. The cross appeal argument I think is covered well in the briefs, but the point that's argued here to you is that if you reverse on validity, you must also reverse in their favor on infringement. And that symmetry is present. And that goes exactly to Judge Lynn's question about whether a device has to do all the processing. And here there's another issue, which is a resurrection of their full layer processing position. Their position is to know that was rejected by the district court in several places based on the specification, based primarily on the concept of XDR processing, which the specification says twice, that decoding. And they say, aha, it must not be in fringe because it can't be decoding unless you decode all seven layers of the OSI model. The district court rejected that based on the specification, which said that a single layer is decoding because decoding is translating it from one format to another, which happens at any single layer, not at all seven. And their citation in support of this proposition in their reply brief is called six lines 55 to 59 of the 9-8 patent. And that merely describes NFS decoding
. That must mean that the absence of the word dedicated in these claims means they're not dedicated. As an initial matter, this court has rejected that proposition in many cases from nice terms to craft others pointing out that patent fees will in different claims phrase the same concept in different ways. And the issue was not looking at the word and saying the absence of that word in this claim must mean it was not intended, but you must look at the specification to determine what was intended. That is the argument we're making and that is the argument that counsel blue art does not really come to grips with. I will address briefly the cross appeal argument that's made. The cross appeal argument I think is covered well in the briefs, but the point that's argued here to you is that if you reverse on validity, you must also reverse in their favor on infringement. And that symmetry is present. And that goes exactly to Judge Lynn's question about whether a device has to do all the processing. And here there's another issue, which is a resurrection of their full layer processing position. Their position is to know that was rejected by the district court in several places based on the specification, based primarily on the concept of XDR processing, which the specification says twice, that decoding. And they say, aha, it must not be in fringe because it can't be decoding unless you decode all seven layers of the OSI model. The district court rejected that based on the specification, which said that a single layer is decoding because decoding is translating it from one format to another, which happens at any single layer, not at all seven. And their citation in support of this proposition in their reply brief is called six lines 55 to 59 of the 9-8 patent. And that merely describes NFS decoding. It does not say that in order to perform the function of a network control module, you must decode all seven layers. The specification just does not say that. I'd like to touch briefly, if I may, on the appeal issues relating to the non-imprinting of the need for function claims, because this is related to the same question. They're really two issues. Now this is rebuttal and also on the cross appeal. Yes. So I think new issues and less related to the cross appeal are not available. With regard to the cross appeal, I think I've covered the questions on their cross appeal is to 9-8. The other three seven issues, which we've not covered here, but I think are covered in the briefs. Well, I think it can be summarized by saying that is a large number of questions, which will not be cited by the district court, not fully ready for decision here. And they're asking you effectively to grant summary judgment for the first time on appeal on a record that doesn't support that. And this court has said several times that that's an exercise that's not particularly appropriate. In our view, you're honored the district court's decision with regard to the validity of the 9-1-8 patent should be reversed, which should go back to the district court with regard to the infringement questions that we've described in the briefs. And the cross appeal questions are largely undeveloped and not appropriate for this court's decision at this point
. It does not say that in order to perform the function of a network control module, you must decode all seven layers. The specification just does not say that. I'd like to touch briefly, if I may, on the appeal issues relating to the non-imprinting of the need for function claims, because this is related to the same question. They're really two issues. Now this is rebuttal and also on the cross appeal. Yes. So I think new issues and less related to the cross appeal are not available. With regard to the cross appeal, I think I've covered the questions on their cross appeal is to 9-8. The other three seven issues, which we've not covered here, but I think are covered in the briefs. Well, I think it can be summarized by saying that is a large number of questions, which will not be cited by the district court, not fully ready for decision here. And they're asking you effectively to grant summary judgment for the first time on appeal on a record that doesn't support that. And this court has said several times that that's an exercise that's not particularly appropriate. In our view, you're honored the district court's decision with regard to the validity of the 9-1-8 patent should be reversed, which should go back to the district court with regard to the infringement questions that we've described in the briefs. And the cross appeal questions are largely undeveloped and not appropriate for this court's decision at this point. Thank you, Mr. Bowles. Thank you. Mr. Ferrell. Yes, thank you. The point I'd like to, two points I'd like to address to the court on the cross appeal with reference to the specification that supports our cross appeal argument on network control module. We lay out on page 6 of our implied brief a comparison of excerpts from the specification, a comparison of network appliances support from the specification of their file system control module interpretation versus our network control module interpretation. And you will see item by item where the novelty of the network control module is matched indeed it succeeded in references in the specification to those of the file system control module. And just to talk about the one that Council for NetApp raised on column 4 in the summary of the invention, it sites at the sentence referring to the processers being optimized for the particular type of work to which it is dedicated. And only about 10 lines earlier. It says the network controllers each connect to one or more network. One or more networks and provide all protocol processing between the network layer data format and an internal file server format, et cetera. In other words, all protocol processing
. Therefore, if the court is to adopt the notion that these statements in the specification control the language in the claims, then surely network of alerts across the peel for non infringement should be granted and the final amount of infringement should be reversed. There's no more questions ahead. Thank you Mr. Ferrell. Mr. Powers, the case is taken under submission