       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

   AMAZON.COM, INC., AMAZON.COM, LLC,
 AMAZON WEB SERVICES, INC., BAZAARVOICE,
      INC., GEARBOX SOFTWARE, LLC,
                 Appellants

                           v.

                 ZITOVAULT, LLC,
                       Appellee
                ______________________

                      2017-2147
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2016-
00021, IPR2016-01025.
                 ______________________

             Decided: November 16, 2018
               ______________________

   DAN L. BAGATELL, Perkins Coie LLP, Hanover, NH,
argued for appellants.  Also represented by GRANT
EDWARD KINSEL, Los Angeles, CA; CHRISTINA JORDAN
MCCULLOUGH, JONATHAN R. PUTMAN, Seattle, WA.

   JUSTIN NEMUNAITIS, Caldwell Cassady & Curry,
Dallas, TX, argued for appellee. Also represented by
2                        AMAZON.COM, INC. v. ZITOVAULT, LLC




JASON DODD CASSADY; MICHAEL RAYMOND CASEY, Oblon,
McClelland, Maier and Neustadt, LLP, Alexandria, VA.
                ______________________

Before PROST, Chief Judge, O’MALLEY and STOLL, Circuit
                       Judges.
    Opinion for the court filed by Circuit Judge STOLL.
     Dissenting Opinion filed by Chief Judge PROST.
STOLL, Circuit Judge.
    Amazon.com, Inc., Amazon.com, LLC, Amazon Web
Services, Inc., Bazaarvoice, Inc., and Gearbox Software,
LLC, (collectively, “Amazon”), appeal from a final written
decision of the Patent Trial and Appeal Board in which
the Board held that Amazon failed to prove Zito-
Vault, LLC’s U.S. Patent No. 6,484,257 unpatentable.
The Board did not err in its claim construction, and it
correctly held Amazon to its burden of proof. Because it
did not err in finding Amazon failed to carry that burden
and because it did not violate Amazon’s procedural due
process rights, we affirm.
                        BACKGROUND
    ZitoVault’s ’257 patent seeks to improve computer
systems’ handling of encrypted communications. See
’257 patent col. 3 l. 65–col. 4 l. 1. Rather than using a
single “main” server to decrypt every communication, the
disclosed system also enlists the computers receiving the
communications as decryption agents, thereby avoiding
bottlenecks, as shown in Figure 2.
AMAZON.COM, INC. v. ZITOVAULT, LLC                           3




Id. at Fig. 2; see also id. at col. 7 ll. 21–34. Representative
claims 1 and 6 describe the claimed invention:
    1. A system for conducting a plurality of crypto-
    graphic sessions over a distributed network of
    computers, employing a distributed automaton
    running on the network comprising M agents for
    servicing N number of simultaneous cryptograph-
    ic sessions wherein bandwidth and number of ses-
    sions are scalable by the M agents and latency is
    potentially reducible to zero comprising:
        a main server;
        one or more clients communicating over the
    distributed network with said main server and
    agents;
4                        AMAZON.COM, INC. v. ZITOVAULT, LLC




         M agents communicating with the main serv-
    er for enlisting additional agents to support in-
    cremental cryptographic sessions with the clients
    to maintain system performance at a desired lev-
    el; and for encrypting and decrypting communica-
    tion traffic as it arrives from the clients via the
    main server, the agents comprising a single-to-
    many connection (1 client, M agents) with respect
    to the clients, such that portions of the bandwidth
    are equally divided among the M agents for pro-
    cessing, and the agents combine the processing
    power of all computers connected to the system to
    service encryption and decryption and enable
    bandwidth to be scalable by the M agents and to
    reduce latency substantially to zero.
                           ***
    6. A method for implementing a scaleable soft-
    ware crypto system between a main server and
    one or more agent servers communicating with
    one or more clients such that performance of the
    crypto system is increased to meet any demand
    comprising
        providing a secure communication between
    the main server, agent server, and one or more
    clients such that communication between the
    main server and agent server enlists additional
    agent servers to support incremental secure ses-
    sions in response to maintaining performance at a
    desired level.
Id. at claims 1, 6 (emphases added to highlight disputed
claim term).
    After ZitoVault sued Amazon for infringement, Ama-
zon petitioned for inter partes review of the ’257 patent.
Amazon raised three grounds of unpatentability, each
AMAZON.COM, INC. v. ZITOVAULT, LLC                       5



based on U.S. Patent No. 6,065,046 (“Feinberg”), and each
instituted by the Board.
    Over the course of the IPR, the parties’ dispute crys-
talized around the issue of whether Feinberg discloses the
claimed “sessions.” Amazon relied on Feinberg for every
claim limitation reciting “sessions.” But Amazon did not
delineate exactly where Feinberg describes the claimed
sessions and did not explain what constitutes a session in
Feinberg’s system. Amazon also did not propose a con-
struction of “sessions,” but its expert testified that a
“session generally refers to one or more communications
exchanged between two entities over some period of time.”
J.A. 540.
    At the institution stage, the Board accepted Amazon’s
contention that Feinberg discloses “sessions.” Citing a
telecommunications dictionary, it preliminarily construed
“sessions” as “a set of transmitters and receivers, and the
data streams that flow between them.” J.A. 180. It found
that “based on that construction, the mere exchange of
data (e.g., encrypted code modules), as disclosed in Fein-
berg, falls within the scope of the claimed sessions.” Id.;
see also J.A. 185–86 (“[W]e adopt a broader construction
of the term ‘session’ that encompasses simply the ex-
change of [data] packets.”).
     In its Patent Owner Response, ZitoVault maintained
that Feinberg lacked the claimed sessions. It offered
expert testimony that a “session” “must refer to a connec-
tion with a defined beginning and end” so that the server
can determine which incoming data belongs to which
session. J.A. 219–20, 1184–86. ZitoVault further con-
tended that Amazon’s petition was defective because it
“fail[ed] to specifically identify what it contends is the
‘session’ in Feinberg or how that session is initiated,
maintained, or terminated.” J.A. 235. ZitoVault sepa-
rately urged the Board to find that a reference must
disclose “negotiating the initiation of a stream with a
6                         AMAZON.COM, INC. v. ZITOVAULT, LLC




defined beginning and end,” to disclose a “data stream,”
as required by the Board’s preliminary construction of
“sessions.” J.A. 237–38.
    At oral argument before the Board, Amazon conceded
that a “session” would have a beginning and an end,
J.A. 317, 319–20, 327, but it maintained that a reference
need not disclose “protocol level” details regarding data
stream initiation and termination to meet the claims,
J.A. 319–20. In response to questions from the Board,
Amazon specifically invited the panel to require a begin-
ning and an end as part of its construction of “sessions,”
J.A. 326–27, asserting that “there can’t be any meaningful
doubt” that Feinberg discloses a session with a “recog-
nizable beginning and end,” J.A. 381.
     In its final written decision, the Board narrowed its
preliminary construction of “sessions.” It construed the
term as “a set of transmitters and receivers, and the data
streams that flow between them wherein each data
stream flowing between the transmitters and receivers has
a recognizable beginning of the data stream transmission
and a recognizable end of the data stream transmission.”
J.A. 15 (emphasis added). It explained that it added the
italicized portion of the construction to clarify “that there
must be delineation between multiple sessions to allow
one to distinguish multiple sessions from one another.”
J.A. 14. The Board noted that both parties had agreed to
its final construction. J.A. 22. And it emphasized that its
“modified interpretation” did not limit a “session” “to any
particular technique or protocol for recognizing the begin-
ning and end of a session exchanged between a transmit-
ter and a receiver,” rejecting that aspect of ZitoVault’s
argument. J.A. 14.
    Applying the modified construction, the Board held
that Amazon failed to prove that Feinberg disclosed
“sessions.” It stated that Amazon “failed to identify what
constitutes a ‘session’ in Feinberg,” J.A. 22, and that
AMAZON.COM, INC. v. ZITOVAULT, LLC                        7



Amazon’s “excessively generic” analysis of limitations
reciting “sessions” left “uncertain what Petitioner regards
as a session in Feinberg, much less how it begins and how
it ends,” id.; see also J.A. 20–26. The Board therefore held
that Amazon had not shown invalidity, and it entered a
decision for ZitoVault. Amazon appeals, challenging the
Board’s construction of “sessions” and its rejection of
Amazon’s anticipation and obviousness grounds, and
asserting procedural due process violations. We have
jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
                       DISCUSSION
    This court reviews the Board’s legal determinations
de novo and the Board’s factual determinations for sub-
stantial evidence. Belden Inc. v. Berk-Tek LLC, 805 F.3d
1064, 1073 (Fed. Cir. 2015). “A finding is supported by
substantial evidence if a reasonable mind might accept
the evidence to support the finding.” Polaris Indus., Inc.
v. Arctic Cat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018).
                             I
    Amazon first challenges the Board’s construction of
“sessions.” We review the Board’s ultimate claim con-
structions de novo, see In re Man Mach. Interface Techs.
LLC, 822 F.3d 1282, 1285 (Fed. Cir. 2016), and we review
any subsidiary factual findings involving extrinsic evi-
dence for substantial evidence, see Teva Pharm. USA, Inc.
v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). In IPR, claims
receive their broadest reasonable interpretation. 1 See



   1    Per recent regulation, the Board will apply the
Phillips claim construction standard to petitions filed on
or after November 13, 2018. See Changes to the Claim
Construction Standard for Interpreting Claims in Trial
Proceedings Before the Patent Trial and Appeal Board,
83 Fed. Reg. 51340 (Oct. 11, 2018) (to be codified at
8                          AMAZON.COM, INC. v. ZITOVAULT, LLC




37 C.F.R. § 42.100(b). We have emphasized that under
the BRI standard, the Board’s construction must be
reasonable, that is, consistent with the record evidence
and the understanding of one skilled in the art. See
Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298
(Fed. Cir. 2015), overruled on other grounds by Aqua
Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017)
(en banc). Because the Board’s construction comports
with that standard, we affirm it.
     The Board construed “sessions” as “a set of transmit-
ters and receivers, and the data streams that flow be-
tween them wherein each data stream flowing between
the transmitters and receivers has a recognizable begin-
ning of the data stream transmission and a recognizable
end of the data stream transmission.” The required
“recognizable” beginning and end of the data stream
transmission, the Board explained, permits the system to
distinguish one session from another. J.A. 12, 14.
    The plain claim language supports requiring a “recog-
nizable” beginning and end. Independent claims 1, 7, and
10 each recite conducting a “plurality” of “sessions,” claim
6 requires multiple “sessions,” and claim 7 recites provid-
ing “simultaneous” sessions “among agents, server and
clients,” all of which suggest that the system recognizes
distinct sessions. See, e.g., ’257 patent at claims 1, 6, 7,
10. The specification similarly supports the understand-
ing that the system must delineate between sessions. It
describes that the server “determines if it can accept a
new session” after considering the bandwidth used by
existing sessions, id. at col. 7 ll. 25–36 (emphasis added),
and it explains that the server may transfer or redirect
particular sessions as needed, id. at col. 7 l. 62–col. 8 l. 9.
The prosecution history contains no contrary disclosure.


37 C.F.R. pt. 42). Because Amazon filed its petition before
November 13, 2018, we apply the BRI standard.
AMAZON.COM, INC. v. ZITOVAULT, LLC                          9



    Extrinsic evidence further supports the Board’s con-
struction. Both parties’ experts agreed that a session has
a beginning and end. Amazon’s expert, Dr. Aviel Rubin
explained that “[s]essions have start and end times,”
J.A. 1072 at 140:19–20, while ZitoVault’s expert,
Dr. Jonathan Katz, testified that a “session has a discern-
able beginning and end” and explained that this temporal
aspect allows the system to distinguish among sessions,
J.A. 1186. A telecommunications dictionary cited by the
Board similarly emphasizes the temporal aspect of a
“session,” defining the term as “[a] set of transmitters and
receivers, and the data streams that flow between them.
In other words, an active communication, measured from
beginning to end, between devices or applications over a
network.” J.A. 1254 (emphasis added).
    Moreover, both parties agreed to the Board’s construc-
tion. Amazon informed the Board that:
    If adding, you know, a beginning or an end to the
    session would provide the Board with comfort, the
    Panel with comfort, that we can distinguish be-
    tween when one session starts or one session ends
    then, you know, I don’t have any objection to that
    given that that is what Dr. Rubin [Amazon’s ex-
    pert] said a session was.
See J.A. 326 (emphases added); see also J.A. 320 (“Now, if
all we’re proposing is that there needs to be a beginning
and an end to a session . . . I think that is clearly – that’s
something that we had proposed or at least suggested
through Dr. Rubin’s declaration.”); Oral Arg. at 7:10–15,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
17-2147.mp3 (“We agreed to ‘recognizable’ . . . .”). The
Board adopted the construction invited by Amazon, and
that construction accords with both the intrinsic and the
extrinsic evidence. We decline to disturb it on appeal.
See Key Pharm. v. Hercon Labs. Corp., 161 F.3d 709, 715
(Fed. Cir. 1998) (“The impropriety of asserting a position
10                        AMAZON.COM, INC. v. ZITOVAULT, LLC




which the trial court adopts and then complaining about
it on appeal should be obvious . . . . Indeed, we could
appropriately refuse to entertain [party’s] appeal on the
issue of claim construction.”).
     Amazon contends that even if the Board did not err in
its literal construction of “sessions,” it erred by implicitly
requiring disclosure of the protocols by which a session
begins and ends. See Appellants’ Br. 25, 32 (asserting
“the Board required the prior art to disclose a particular
technique for recognizing the beginning and end of a
session” and that the Board “did not simply require a
‘recognizable’ beginning and end”). We disagree. Contra-
ry to Amazon’s argument, the Board expressly stated that
its “interpretation is not limited to any particular tech-
nique or protocol for recognizing the beginning and end of
a session” and that “[a] wide variety of techniques for
such beginning and ending determinations are within the
scope . . . of ‘session.’” J.A. 14 (emphasis added). We
reject Amazon’s assertion that the Board implicitly adopt-
ed a construction that it expressly rejected in its final
written decision.
                              II
     Amazon also objects to the Board’s ultimate rejection
of its anticipation and obviousness challenges, claiming
that Feinberg discloses the “sessions” limitations under
the Board’s construction. See, e.g., Appellants’ Br. 25
(“The Board specified that its modified interpretation was
‘not limited to any particular technique . . . .’ Had that
been the Board’s final word, Feinberg’s disclosure would
still have satisfied the ‘sessions’ limitations.”); Reply
Br. 3–6; Oral Arg. at 8:51–9:47. Without resolving the
question of what Feinberg discloses, the Board found that
Amazon failed to offer sufficient proof that Feinberg
discloses “sessions.” We agree.
    In an IPR, the petitioner bears the burden of proof.
See In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364,
AMAZON.COM, INC. v. ZITOVAULT, LLC                       11



1375–77 (Fed. Cir. 2016). “[M]ere conclusory statements”
cannot suffice; the petitioner “must instead articulate
specific reasoning, based on evidence of record” to support
its grounds of unpatentability. Id. at 1380; see also Har-
monic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363
(Fed. Cir. 2016) (“In an IPR, the petitioner has the burden
from the onset to show with particularity why the patent
it challenges is unpatentable.”).
    In its petition, Amazon never explained how or when
Feinberg distinguishes between sessions—Amazon never
even defined a “session” in Feinberg’s system. Even in its
reply, after ZitoVault placed the “sessions” terms at issue,
Amazon argued only that Feinberg discloses “sessions,”
without explaining whether any of Feinberg’s “sessions”
begin and end, despite admitting in the same paper that a
“session” would begin and end. J.A. 279–82; see also
J.A. 540 (asserting that a “session generally refers to one
or more communications exchanged between two entities
over some period of time”). At oral argument, following
the Board’s close questioning on this issue, Amazon
offered only attorney argument that Feinberg “clearly”
discloses sessions having a beginning and an end.
J.A. 381. To the extent Amazon intended to present an
inherency argument, these assertions fall short. See
Oral Arg. at 5:35–6:35. We agree with the Board that
Amazon’s failure to explain “what [it] regards as a session
in Feinberg” and “whether a request in Feinberg begins a
session, or something else in Feinberg begins a session,”
dooms its petition. 2 J.A. 22.




   2     At argument, Amazon asserted that “a session be-
gins when there is a request for service and then when
the file is transferred it’s done.” Oral Arg. at 9:38–44. We
express no opinion on this theory or on whether Feinberg
discloses “sessions” to one of ordinary skill. Like the
12                       AMAZON.COM, INC. v. ZITOVAULT, LLC




                            III
    Finally, Amazon argues that at oral argument before
the Board, ZitoVault argued for the first time that “a
‘session’ required a pre-conversation between communica-
tion endpoints that established specific parameters for the
conversation.” Appellants’ Br. 3, 7, 59–61. Amazon
asserts that in relying on this new argument without
providing it with an opportunity to respond, the Board
violated its due process rights.
    Parties before the Board must receive adequate notice
of the issues the Board will decide and an opportunity to
be heard on those issues. See Genzyme Therapeutic Prod.
Ltd. v. Biomarin Pharm. Inc., 825 F.3d 1360, 1367
(Fed. Cir. 2016); see also 5 U.S.C. § 554(c). We have
therefore rejected evidence and arguments supplied for
the first time at oral argument. See Dell Inc. v. Acceleron,
LLC, 818 F.3d 1293, 1301 (Fed. Cir. 2016) (“[T]he Board
denied [party] its procedural rights by relying in its
decision on a factual assertion introduced into the pro-
ceeding only at oral argument, after [party] could mean-
ingfully respond.”).
    Here, however, ZitoVault advocated for the inclusion
of a “pre-conversation” requirement in its patent owner
response. See J.A. 237–38 (“Petitioners must demonstrate
that Feinberg discloses negotiating the initiation of a
stream with a defined beginning and end.” (emphasis
added)).      Indeed, Amazon specifically addressed this
argument in its reply brief and at oral argument.
J.A. 279–81, 319–20; see also Reply Br. 21–22 (conceding
that “Appellants suspected ZitoVault was positioning
itself to inject unwarranted additional limita-
tions . . . . Appellants attempted to warn the Board as



Board, we “decline to speculate in that regard” on this
record. J.A. 22.
AMAZON.COM, INC. v. ZITOVAULT, LLC                    13



much . . . .”). Having had—and taken—at least two
opportunities to address ZitoVault’s argument, Amazon
cannot credibly argue that it was taken unaware. Moreo-
ver, as discussed, the Board rejected ZitoVault’s request
to require protocol-level disclosures. See J.A. 11–15. We
therefore reject Amazon’s argument that the Board de-
nied it procedural due process.
                        CONCLUSION
    We have considered the parties’ remaining arguments
and find them unpersuasive. The Board’s final written
decision is therefore affirmed.
                        AFFIRMED
                          COSTS
   Costs to Appellee.
        NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

   AMAZON.COM, INC., AMAZON.COM, LLC,
 AMAZON WEB SERVICES, INC., BAZAARVOICE,
      INC., GEARBOX SOFTWARE, LLC,
                 Appellants

                            v.

                  ZITOVAULT, LLC,
                        Appellee
                 ______________________

                       2017-2147
                 ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2016-
00021, IPR2016-01025.
                 ______________________

PROST, Chief Judge, dissenting.
    Because I believe that the Board’s analysis of the
term “sessions” was flawed, I disagree with the majority.
First, Amazon never agreed that “sessions” must include
protocol-level instructions for beginning and ending a
data stream. Second, the intrinsic evidence does not
justify reading in this limitation. I therefore respectfully
dissent. In my view, the claim construction should be
reversed and the Board’s analysis of anticipation and
2                        AMAZON.COM, INC. v. ZITOVAULT, LLC




obviousness, which relies on that construction, should be
vacated.
                             I
    As an initial matter, I agree with the majority that
the Board’s original construction was problematic.
    As the Board eventually recognized, its preliminary
construction was overbroad. J.A. 12. Under that con-
struction, “sessions” encompassed any electronic move-
ment of data—requiring nothing more than a data stream
between two endpoints. See J.A. 11–12. Consequently, in
a given data stream, a session could be made up of multi-
ple packets. But it was also possible that even a single
packet in that stream could constitute a session. 1 Due to
the breadth of the Board’s preliminary construction, there
was no way to tell which data belonged to which session.
In turn, the Board’s chief concern with its preliminary
construction was that it did not “allow multiple sessions
to be distinguished from one another.” J.A. 12.
    In light of the claim language, that concern was well
grounded. Particularly, claims 1, 6, 7, and 10 all refer to
a plurality of “sessions.” Claim 7 refers to “simultaneous”
sessions. On this basis, the Board concluded that “there
must be sufficient delineation . . . that separates a ‘ses-
sion’ between one client and one server and a different
‘session’ when one of the client and server are replaced,
and that separates multiple sessions from each other even
between the same pair of client and server.” J.A. 12–13.


    1   To illustrate the problem, the Board explored the
following hypothetical: imagine a sender sends a message
totaling one gigabyte. See J.A. 315–16, 327. In view of
the original construction, because “every byte is an infor-
mation sent over a connection,” it is unclear whether in
this example there would be one session of a thousand
bytes, or a thousand sessions of one byte each. J.A. 316.
AMAZON.COM, INC. v. ZITOVAULT, LLC                      3



                            II
    Though the Board’s reason for revising its construc-
tion was sound, its implementation was flawed. In an
attempt to clarify that each session must be separately
identifiable, the Board improperly read in a limitation
from the specification.
    Specifically, the Board imposed the requirement that
a session have a “recognizable beginning” and a “recog-
nizable end” of the data stream transmission. J.A. 14. At
ZitoVault’s suggestion, the Board then went further. It
construed the term to require specific disclosure of a
“technique,” such as a protocol, to “determine[]” the
begin/end point of a communication between endpoints.
Id. That is, based largely on attorney argument at the
oral hearing, the Board imported an additional require-
ment that each session have an instruction with protocol-
level detail about how to initiate and terminate a data
stream. 2 See J.A. 22.
    However, the patent does not require that all sessions
have a defined instruction for beginning or ending. A
system certainly could end according to a given protocol,
by transmitting a termination instruction that the end-
points recognize. But a session may not have a prescribed



   2    The Board did not limit “sessions” to a specific
type of protocol (e.g., Transmission Control Protocol
(“TCP”)). See J.A. 14 (clarifying revised construction is
not limited to “any particular technique or protocol” for
“recognizing the beginning and end of a session exchanged
between a transmitter and a receiver”). Rather, it con-
cluded that a “wide variety of techniques for such begin-
ning and ending determinations are within the scope of
our interpretation of ‘session,’ including SSL and IPSec
protocols disclosed in the exemplary embodiments of the
’257 patent.” Id.
4                         AMAZON.COM, INC. v. ZITOVAULT, LLC




“end.” Instead, it might terminate “if a sender stopped
sending.” J.A. 950 at 18:21–22 (Rubin Dep.). The patent
is agnostic about whether a session has a defined
begin/end instruction in advance of the communication.
Nothing in the ’257 patent excludes the possibility that a
session may end simply because no more data is transmit-
ted.
    Nonetheless, ZitoVault offers two main arguments to
justify importing this limitation. First, ZitoVault claims
Amazon agreed to this limitation during oral argument
before the Board. Second, it claims the intrinsic evidence
supports the limitation. The majority accepts these
arguments. I cannot. I address both arguments below.
                             A
   ZitoVault first argues that Amazon agreed to the
Board’s narrow revised construction. Though Amazon
agreed with the simple premise that all communications
have an identifiable beginning and end, it consistently
resisted ZitoVault’s attempts to read “sessions” as requir-
ing details or pre-defined instructions of how and when a
communication begins and ends.
    In its reply brief before the Board, Amazon explained:
“Of course a session begins and ends at some point—that
is axiomatic. But that is not the same as requiring disclo-
sure of the details of an initiation and termination pro-
cess.” J.A. 282 (emphasis added).
    During the oral hearing before the Board, Amazon
agreed that the preliminary construction could be revised
to clarify that a session has “a beginning or an end” if that
“would provide the Board with comfort . . . that we can
distinguish between when one session starts or one ses-
sion ends.” J.A. 326. In other words, Amazon agreed that
the construction could include an express acknowledg-
ment that all sessions have a discernable “beginning” and
“end.” However, at no point did it concede that the term
AMAZON.COM, INC. v. ZITOVAULT, LLC                         5



requires pre-defined instructions or protocols specifying
when the session begins or ends. Instead, Amazon em-
phasized that “it is axiomatic, as we said in the papers,
that a session has a beginning and an end. I don’t know
that that needs to be part of the definition and it certainly
shouldn’t be used as a leverage point.” Id.
    Consistent with that position, Amazon then explained
that its expert, Dr. Rubin, opined that a session “general-
ly refers to one or more communications exchanged be-
tween two entities over some period of time.” J.A. 327–28
(quoting J.A. 450 (Rubin Decl.)). Amazon clarified that
this opinion was consistent with the Board’s original
construction. See J.A. 328 (“I continue to think that is
effectively what the Panel has adopted . . . .”).
    The Board responded: “That would seem to satisfy
[ZitoVault’s] assertion it has to be well defined. That
would seem to define the session. It is just that we don’t
need further details as to the protocol.” Id. (emphasis
added). Amazon replied: “I think that’s right. I mean,
clearly Dr. Rubin believes that you would have a session
over time, it is generally measured over time . . . .” Id.
    As shown above, Amazon simply conceded that all
sessions or communications naturally involve exchange of
information over some period of time. That period of time
inherently has a beginning and an end. That beginning
and end can be recognized or identified. Despite Zito-
Vault’s selective quotes from the oral hearing, however,
Amazon consistently opposed the idea that “sessions”
required a defined instruction governing how a data
stream begins and ends. As such, I conclude that Amazon
never acquiesced to this narrow construction.
                             B
    ZitoVault’s second argument that the intrinsic evi-
dence supports this construction is without merit. Nei-
ther the claims nor the specification require a technique
6                         AMAZON.COM, INC. v. ZITOVAULT, LLC




for beginning and ending a session. Unsurprisingly, the
Board cited no clear intrinsic evidence to support such a
requirement. See generally J.A. 11–15. At bottom, the
Board’s construction improperly reads in a limitation from
the specification.
     The focus of the claimed invention is not some im-
provement on protocols for how sessions begin or end.
Instead, the ’257 patent focuses on how to “scale” a net-
work involving multiple sessions. ’257 patent col. 4 ll. 45–
51 (“[A]n aspect of the invention provides a distributed
software solution for encryption/decryption which is
infinitely scaleable in the number of simultaneous ses-
sions capable of being processed by a server . . . .”); id. at
col. 11 ll. 8–11 (“This is a new and non-obvious application
of distributed algorithm technology as applied to encryp-
tion and decryption and greatly enhances scalability.”).
    Unsurprisingly, then, the claim language does not fo-
cus on the need for specific techniques governing when a
session begins or ends. The only claim to even recite
“terminating” a communication is dependent claim 9.
Claim 9, which is not at issue, adds the required step of
“terminating encrypted session communication upon
successfully transferring a session from main server to
one or more agents.” No other claim mentions terminat-
ing a session.
    As the majority notes, the specification does provide a
single example of how a session might be established and
terminated. This example, however, is provided “[i]n
accordance with an aspect of [the] invention.” Id. at col. 6
ll. 2–48 (discussing how the preferred embodiment in
Figure 4 establishes a session); id. at col. 8 ll. 23–27
(discussing how the same embodiment terminates a
session). Dependent claim 9 appears to claim the pre-
ferred embodiment of Figure 4. As no other claim even
discusses “terminating,” I decline ZitoVault’s invitation to
AMAZON.COM, INC. v. ZITOVAULT, LLC                      7



read the preferred embodiment of Figure 4 into the rest of
the claims via the term “sessions.”
                            III
    As discussed above, the claims require “sessions,”
which in turn requires that sessions can be delineated
from one another. Consistent with the intrinsic evidence,
the term “sessions” should be construed as: “Sets of data
exchanged between endpoints, wherein each set is ex-
changed over a period of time and is uniquely identifia-
ble.” The level of detail required by the claims is simply
whether a data set exists that is identifiable or distin-
guishable from other sets in a data stream. There is no
specific restriction on how the set of data is identified.
    For the reasons above, I believe the Board’s construc-
tion adopted by the majority was flawed. As a result, the
Board’s rulings on anticipation and obviousness should be
vacated, and the case should be remanded for further
proceedings consistent with the proper construction of the
term “sessions.” Therefore, I respectfully dissent.
