[00:00:00] Speaker 06:
Cases before the court this morning.

[00:00:02] Speaker 06:
The first is Bobo versus ITC.

[00:00:06] Speaker 06:
Case number 141701.

[00:00:08] Speaker 06:
Mr. Kundu, is that how you pronounce that?

[00:00:12] Speaker 05:
Yes, Your Honor.

[00:00:13] Speaker 06:
You want to take a full seven minutes for rebuttal?

[00:00:17] Speaker 05:
Yes, if I may.

[00:00:17] Speaker 06:
OK, then you better watch your time.

[00:00:20] Speaker 06:
But we'll allow that.

[00:00:22] Speaker 06:
Are you?

[00:00:22] Speaker 03:
Yes.

[00:00:23] Speaker 06:
You may proceed.

[00:00:30] Speaker 03:
May it please the court.

[00:00:31] Speaker 03:
Your honors, my name is Sudeep Kundu and I represent the appellant, Andre Beaubelle and his lighting company, Neptune Light.

[00:00:39] Speaker 03:
Your honors, one of the main issues in this case concerns the proper construction of the claim term mating opening.

[00:00:46] Speaker 03:
The specification uses the term mating opening 10 times and for example, one of those times is with respect to figure one, which identifies the mating opening as element 120 and that's on column four

[00:00:59] Speaker 03:
line 49.

[00:01:00] Speaker 03:
In each of the 10 times that mating opening is used, the patent does not divorce mating from opening.

[00:01:09] Speaker 03:
But in construing mating opening, the commission divorced the two words, finding that mating was not in dispute and that opening did not require construction.

[00:01:19] Speaker 03:
The evidence and the record in this investigation show that the word mating could not be divorced from opening.

[00:01:27] Speaker 03:
So, like as I said, the specification consistently uses the term mating opening.

[00:01:33] Speaker 03:
The extrinsic evidence also showed at the hearing and in the record that a person of ordinary skill in the art reading the intrinsic evidence would not divorce the two terms either.

[00:01:43] Speaker 06:
Well, I'm not sure I understand why that matters.

[00:01:46] Speaker 06:
Whether it's a mating opening or an opening, the commission simply said that by definition you have to have an opening for something to fit into.

[00:01:58] Speaker 03:
Your Honor, there's two things there.

[00:02:02] Speaker 03:
In terms of what the opening means.

[00:02:05] Speaker 03:
So the reason why we're arguing that the terms can't be divorced from each other is because that's a- Well, even if they can't be divorced from each other, opening is a pretty common term.

[00:02:18] Speaker 00:
I mean, unless you have something in the specification that says opening doesn't actually mean an opening but a closed surface, then how would we

[00:02:28] Speaker 00:
ever get to your definition.

[00:02:30] Speaker 00:
I mean, mating obviously modifies opening, but it still has to be an opening of some sort, doesn't it?

[00:02:37] Speaker 03:
Yes, Your Honor.

[00:02:38] Speaker 03:
And so what our position is in terms of, if you look at figure one, figure one is a fluorescent reflector lamp.

[00:02:46] Speaker 03:
That's also the preamble of claim one.

[00:02:49] Speaker 03:
So in that, that's an assembled product.

[00:02:52] Speaker 03:
So there's a mating opening that's been identified.

[00:02:54] Speaker 03:
It's 120, defined by the flange 105.

[00:02:57] Speaker 03:
There's no hole there.

[00:02:59] Speaker 03:
And the position, our position is that the opening is not limited to a hole.

[00:03:05] Speaker 06:
There's no hole when it's all put together, but as it's being put together, there's a hole that the base goes into, right?

[00:03:13] Speaker 03:
That's correct.

[00:03:13] Speaker 03:
You're on in terms of the method of manufacturing the product, but the claim is not a method of manufacturing.

[00:03:18] Speaker 03:
It's the product.

[00:03:20] Speaker 03:
It's the fluorescent reflector lamp, which is what figure one is.

[00:03:23] Speaker 06:
Right.

[00:03:24] Speaker 06:
I mean, I don't read the commission to have said that the opening has to exist after the product's all put together.

[00:03:30] Speaker 03:
So if, I mean, our position, your honor is, if that's true, I mean, we took their brief to mean that the mating opening doesn't have to be a hole, which was our position.

[00:03:43] Speaker 03:
And it's, and that's the IPC's brief has that page 26 footnote 12, that they declined to construe the opening as a hole.

[00:03:53] Speaker 03:
So when the patent, for example, uses the term hole, it doesn't use it to refer to mating opening.

[00:03:59] Speaker 03:
It uses it to refer to elements 111A and 111B, which are the holes in which the light source is inserted into.

[00:04:08] Speaker 03:
So what we have in terms of the claim is the assembled product.

[00:04:13] Speaker 03:
It's not the way it's manufactured.

[00:04:16] Speaker 03:
And so what we have in Figure 1 also is the assembled product.

[00:04:18] Speaker 03:
So Figure 1 is identified as a fluorescent reflector lamp, which is the same

[00:04:23] Speaker 03:
preamble of claim one.

[00:04:28] Speaker 06:
All right.

[00:04:29] Speaker 06:
Well, even if we were to agree with you, and I'm not quite sure I'm following your argument exactly, but you've got about five grounds upon which the ITC relied to find non-infringement.

[00:04:39] Speaker 03:
Yes, Your Honor.

[00:04:41] Speaker 06:
This isn't just one issue here.

[00:04:43] Speaker 06:
You've got a lot of non-infringement findings by the Commission.

[00:04:47] Speaker 03:
Yes, Your Honor.

[00:04:47] Speaker 03:
We do.

[00:04:48] Speaker 03:
And our position there is that the Commission's findings of non-infringement are not based on evidence.

[00:04:54] Speaker 03:
So in this context, in the 540 patent, the level of ordinary skill was not that of a layperson.

[00:05:03] Speaker 03:
It's a mechanical engineer with an education in mechanical design and manufacturing.

[00:05:08] Speaker 03:
So both sides had expert witnesses.

[00:05:10] Speaker 03:
We had one, Dr. Mayer.

[00:05:12] Speaker 03:
The respondents had two.

[00:05:14] Speaker 03:
And so based on this court's precedent in Centrica, as well as in expansion, if

[00:05:22] Speaker 03:
the skill level, the technology is beyond a lay person.

[00:05:25] Speaker 03:
And one side has expert testimony of infringement, which we did, which the ALJ was persuaded by in finding infringement.

[00:05:33] Speaker 03:
Then to rebut that evidence, there's got to be expert testimony on the other side.

[00:05:38] Speaker 01:
But what we have here in the record- We have Dr. Roberts saying that the bowl shaped reflectors have no opening.

[00:05:51] Speaker 01:
Is that not correct?

[00:05:52] Speaker 03:
That was under the respondent's claim construction, your honor, which required the mating opening to be a whole.

[00:05:58] Speaker 03:
It was not under the construction adopted by the ALJ.

[00:06:04] Speaker 03:
And I would also say that when the commission discussed... We agree.

[00:06:09] Speaker 01:
So let's say we agree with the commission's construction of the term mating opening.

[00:06:13] Speaker 01:
Okay.

[00:06:15] Speaker 01:
Then the accused products don't infringe.

[00:06:18] Speaker 01:
They don't include the claimed opening.

[00:06:22] Speaker 01:
Your Honor, we would respectfully disagree with that.

[00:06:25] Speaker 03:
If mating is not in dispute, and we're just talking about opening, which is not limited to a hole, well then there's an area in each of the accused products where there's a portion of the light source base that has a light source that is inserted in it.

[00:06:43] Speaker 03:
So the mating opening, according to claim one, is defined by the first circumferential flange.

[00:06:48] Speaker 03:
We identified that with our evidence

[00:06:51] Speaker 03:
in each of the accused products.

[00:06:53] Speaker 03:
It's an axially projecting circular projection.

[00:06:57] Speaker 03:
That, according to claim one, defines mating opening.

[00:07:03] Speaker 03:
So, looking at claim one, how do you know there's a mating opening?

[00:07:06] Speaker 03:
It's defined by a first circumferential flange.

[00:07:10] Speaker 03:
And so, when the commission came up with its construction for the first time in the final determination, saying that mating is not in dispute,

[00:07:20] Speaker 03:
And that opening, didn't that be limited to a hole?

[00:07:23] Speaker 03:
Well, the evidence that we presented showed, yes, there was a first circumferential flange defining a mating opening inside of which there's a light source that attaches to the light source.

[00:07:35] Speaker 06:
But the problem is, and the ITC found, that you essentially want to collapse everything into one piece.

[00:07:43] Speaker 06:
In other words, your claim actually has a variety of things.

[00:07:46] Speaker 06:
It doesn't just have the opening, but it has a first circumferential flange and a second flange.

[00:07:52] Speaker 06:
And yet you want to say they all are the same thing covers all of those limitations.

[00:07:58] Speaker 03:
Your honor, we would respectfully disagree with that.

[00:08:01] Speaker 03:
In terms of the first and second circumferential flange, the evidence at the hearing determined that to a person of ordinary skill, flange could be a circular projection.

[00:08:12] Speaker 06:
When you say the evidence, you're saying we're supposed to ignore the patent itself and say that your expert is the only thing we can look at?

[00:08:20] Speaker 03:
No, Your Honor.

[00:08:21] Speaker 03:
That's consistent with the intrinsic record as well.

[00:08:25] Speaker 03:
And the idea that a flange of the circular projection is not an issue on appeal and it wasn't challenged below.

[00:08:31] Speaker 00:
But you've specifically defined those other parts.

[00:08:34] Speaker 00:
And now you're saying that mating opening is just those other parts.

[00:08:38] Speaker 00:
If that's the case, then why do you need to have

[00:08:41] Speaker 00:
a claim element that's mating opening at all?

[00:08:45] Speaker 03:
Well, Your Honor, in our construction, there's two parts of it.

[00:08:52] Speaker 03:
The claim defines the mating opening using the first circumferential flange.

[00:08:58] Speaker 03:
There's a second part to it, which is, OK, well, what's happening inside there?

[00:09:03] Speaker 03:
What's happening inside that mating opening?

[00:09:05] Speaker 03:
Well, it's where the light source phase attaches to the light source.

[00:09:08] Speaker 03:
So it's not that.

[00:09:10] Speaker 00:
Isn't it the opening through which

[00:09:12] Speaker 00:
the light source base attaches to the light source?

[00:09:15] Speaker 03:
It's where that is happening.

[00:09:17] Speaker 03:
So the hole... Which is an opening.

[00:09:21] Speaker 01:
It has to be an opening.

[00:09:23] Speaker 03:
Well, I think I've lost track.

[00:09:27] Speaker 03:
What I was saying, Your Honor, is that the first circumferential plan is to find the mating opening, but it's more than that because that's where... How can the first circumstantial plan to find the mating opening

[00:09:40] Speaker 00:
The first circumstantial flange is a separate claim element, and the mating opening is a separate claim element.

[00:09:46] Speaker 00:
You're trying to get us to equate the two.

[00:09:49] Speaker 00:
If you admit that, you wouldn't have had to use two different terms.

[00:09:53] Speaker 00:
You're using the first circumstantial flange as the structure outside.

[00:09:58] Speaker 00:
The mating opening has to be something else, which is the opening through which it goes.

[00:10:05] Speaker 03:
can respond to that.

[00:10:06] Speaker 03:
The claim term, the entire claim term, is a first circumferential flange defining a mating opening, having an inner diameter.

[00:10:13] Speaker 03:
So when I say that the mating opening is defined by that first circumferential flange, that's what I mean, that it's in the claim language.

[00:10:21] Speaker 06:
Are you well into your rebuttal time?

[00:10:22] Speaker 06:
I'm sorry.

[00:10:23] Speaker 06:
Okay, you'll have five minutes on rebuttal.

[00:10:36] Speaker 06:
So you're going to take the first argument for eight minutes, is that right?

[00:10:40] Speaker 04:
That's correct, Your Honor.

[00:10:41] Speaker 06:
Okay.

[00:10:44] Speaker 04:
Good morning and may it please the Court.

[00:10:46] Speaker 04:
The Commission has four separate grounds for finding non-imprisonment, any one of which is dispositive for a finding of no violation of Section 337.

[00:10:54] Speaker 04:
First, under the Commission's construction of opening, the accused products do not have an opening in their reflectors as required by the client.

[00:11:03] Speaker 04:
The commission also had three grounds of non-infringement that are independent of claim construction.

[00:11:08] Speaker 04:
No matter how opening is construed, accused products lack a light source base, a first circumferential flange, and a second circumferential flange.

[00:11:17] Speaker 06:
Let me look at the opening issue first.

[00:11:20] Speaker 06:
What bothers me is that if you look at all the figures and you look at the written description, I can see where the commission thought they were getting this definition.

[00:11:33] Speaker 06:
The problem is, if you look at the claims, the claim simply says, it talks about a reflector with a defined cavity.

[00:11:42] Speaker 06:
Said cavity having a first circumferential flange, defining a mating opening, having an inner diameter.

[00:11:49] Speaker 06:
So why couldn't the flange be the outside and the opening be from the inner diameter?

[00:11:55] Speaker 06:
And that constitutes the opening.

[00:11:59] Speaker 06:
I mean, you could fit something into that flange, correct?

[00:12:03] Speaker 04:
Well, the claim way which says that the cavity has to have a flange, that implies that the flange has some relationship to the cavity.

[00:12:13] Speaker 06:
Okay, that's your second or third ground, right?

[00:12:16] Speaker 06:
That's not your first ground.

[00:12:19] Speaker 06:
I'm sorry.

[00:12:20] Speaker 06:
That's not your first ground.

[00:12:23] Speaker 04:
The first ground, I thought we were talking about the mating opening.

[00:12:28] Speaker 06:
The flange defines the opening, and all you need is an inner diameter to define the opening.

[00:12:34] Speaker 06:
Why couldn't the accused device be said to have that opening?

[00:12:41] Speaker 04:
Well, opening needs to be given meaning.

[00:12:45] Speaker 04:
And based on the plain, ordinary meaning of opening, the opening has to be an actual opening.

[00:12:50] Speaker 04:
Nothing in Neptune, what they're saying, they've not identified an actual opening.

[00:12:54] Speaker 04:
So just because there's a flange around some sort of area, that doesn't mean there's also an opening.

[00:12:59] Speaker 04:
They also have to show that there is an opening.

[00:13:04] Speaker 04:
And then, on claim destruction, the commission correctly gave opening its plan an ordinary meaning.

[00:13:09] Speaker 04:
The commission, on Phillips, found that the claims and specification were consistent with this plan meaning of opening.

[00:13:16] Speaker 04:
And there was no reason to diverge from that plan meaning.

[00:13:18] Speaker 04:
Patent D did not act as a lexicographer.

[00:13:21] Speaker 04:
There's no disavowal of claims go.

[00:13:23] Speaker 06:
I'm still having a hard time.

[00:13:24] Speaker 06:
So if you've got this, right, and you fit something in it, can't that be your opening?

[00:13:31] Speaker 05:
Right?

[00:13:35] Speaker 06:
Or are you saying there has to be a complete open-ended piece on the other side?

[00:13:40] Speaker 06:
The whole point of the patent is simply to have something to fit into, right?

[00:13:45] Speaker 04:
Well, the point of that, the mating opening, and then later in the patent it discusses mating, which is talking about the white horse base connecting to the ballast housing.

[00:13:53] Speaker 04:
The ballast housing is on the rear of the thing.

[00:13:55] Speaker 04:
So if there is no opening that allows that mating to occur, then the claim language isn't satisfied.

[00:14:02] Speaker 04:
So based on

[00:14:04] Speaker 04:
The claim language itself, as well in light of the specification showing similar openings where it extends all the way through, to have the claimed mating opening, it would have to extend through the entire product and permit that mating.

[00:14:21] Speaker 04:
And the commission correctly here rejected Neptune's argument that the mating opening means the area in which a portion of the light source base, i.e.

[00:14:28] Speaker 04:
the portion through which the light source is inserted, is located.

[00:14:32] Speaker 04:
That construction is self-serving, circular, and un-supported by anything in the record.

[00:14:38] Speaker 04:
Now, moving out to non-infringement, the Commission found that the accused products did not infringe on four separate grounds.

[00:14:44] Speaker 04:
Two of these grounds are the first and second circumferential flanges.

[00:14:49] Speaker 04:
Now, the claims here require two flanges, but as seen in the Commission's brief on pages 50 and 52, Neptune identifies what is, at best, a single flange in the accused product.

[00:15:02] Speaker 04:
But even if a single flange were two flanges, Neptune also failed to show that the flanges satisfied the remainder of the claim language.

[00:15:10] Speaker 04:
The first circumferential flange has to be of the reflector cavity and the second circumferential flange has to be of the light source base.

[00:15:18] Speaker 04:
There's no evidence that a flange located outside of the reflector is of the reflector cavity or of the light source base.

[00:15:27] Speaker 06:
So what you're saying is that there has to be

[00:15:30] Speaker 06:
two separate flanges.

[00:15:33] Speaker 04:
Yes, Your Honor.

[00:15:34] Speaker 06:
So one has to be inside the other.

[00:15:35] Speaker 06:
So the first circumferential flange must be inside the cavity.

[00:15:40] Speaker 04:
Yes, the first one must be inside the cavity.

[00:15:45] Speaker 04:
Now another non-infringement ground is that the accused product lack a light source base being inside said defined cavity of the reflector.

[00:15:54] Speaker 04:
Not soon alleged is that a portion of the reflector walls constitutes the light source base.

[00:16:00] Speaker 04:
But while the reflective walls define the light source cavity or define the reflector cavity, the reflective walls are not themselves located inside the reflector cavity.

[00:16:10] Speaker 04:
Therefore, Neptune's allegations and the record evidence shows there is substantial evidence that supports the Commission's findings that the accused product lacked the light source base.

[00:16:18] Speaker 04:
Now finally, under the Commission's construction of opening, the accused product do not have an opening in the light source or a light source base located inside of that opening as required by the client.

[00:16:30] Speaker 01:
I'm looking at Dr. Robert's testimony in the record, and he seems to say that the accused products had continuous bowl-shaped reflectors without openings.

[00:16:47] Speaker 01:
Am I correct on that?

[00:16:50] Speaker 01:
I believe you're correct.

[00:16:51] Speaker 01:
Yes, you're correct.

[00:16:55] Speaker 01:
Is there any refutation of that?

[00:17:00] Speaker 04:
There's no reputation that there is not a literal opening as one would ordinarily understand the term in the accused products.

[00:17:09] Speaker 06:
You mean, well, there are some openings.

[00:17:11] Speaker 06:
They're just not defined by the circumferential flange.

[00:17:14] Speaker 04:
Yeah, there are two holes.

[00:17:16] Speaker 04:
Those openings do not set the claim language like you had mentioned because they're not defined by a circumferential flange.

[00:17:21] Speaker 06:
Right.

[00:17:21] Speaker 06:
But those holes would be openings if you were just looking at openings.

[00:17:24] Speaker 04:
Correct.

[00:17:25] Speaker 06:
And those holes serve a mating function.

[00:17:29] Speaker 04:
Well, those holes do serve some form of attachment.

[00:17:32] Speaker 04:
The patent itself does refer to a different form of mating, but the circumferential flange here does make a difference.

[00:17:44] Speaker 04:
So, in summary, Neptune's patent requires specific structural features that the accused products simply do not have.

[00:17:52] Speaker 04:
Neptune's only response is to argue that its unsupported expert testimony should be elevated to a level of importance

[00:17:58] Speaker 04:
found nowhere in this Court's jurisprudence.

[00:18:01] Speaker 04:
So accordingly, this Court should affirm the Commission's determination of no violation.

[00:18:10] Speaker 05:
Thank you.

[00:18:10] Speaker 05:
Mr. Witt?

[00:18:13] Speaker 05:
Seven minutes?

[00:18:14] Speaker 01:
Yes, Your Honor.

[00:18:19] Speaker 02:
May it please the Court

[00:18:21] Speaker 02:
Decisions of this court have advised practitioners for years that claims are not construed in the abstract.

[00:18:29] Speaker 02:
They are construed as part of the specification and the written description that goes with it.

[00:18:35] Speaker 02:
And if you do that in this case, like the commission did, you've come to the conclusion that a whole has to be a passage or an opening that something passes through.

[00:18:45] Speaker 02:
Because when you look at what the inventor described as his invention,

[00:18:49] Speaker 02:
It was a very specific invention.

[00:18:52] Speaker 02:
It was a reflector that has an opening on the top and an opening on the bottom.

[00:18:57] Speaker 02:
It has a circumferential flange that defines that opening on the bottom.

[00:19:01] Speaker 02:
It has a light source base.

[00:19:04] Speaker 02:
That light source base has a circumferential flange that's larger than the other circumferential flange.

[00:19:08] Speaker 06:
You're primarily focusing on the figures, which, as we all know, are not the primary focus for any analysis of the written description.

[00:19:18] Speaker 06:
You know, there is that fine line between looking at the written description and importing limitations from the written description into the claim.

[00:19:28] Speaker 06:
The claim is much broader.

[00:19:30] Speaker 06:
I mean, the claim doesn't say opening at the top and opening at the bottom, does it?

[00:19:33] Speaker 02:
Yes, it does.

[00:19:34] Speaker 02:
The claim says a light-emitting opening at the top.

[00:19:38] Speaker 02:
It has a circumferential rim defining a light-emitting opening and a circumferential flange defining a mating opening.

[00:19:49] Speaker 02:
It says that the light emitting rim is at the top.

[00:19:55] Speaker 02:
That's right.

[00:19:55] Speaker 06:
Right.

[00:19:56] Speaker 06:
So what we're focusing on is the bottom.

[00:19:58] Speaker 02:
Right.

[00:19:59] Speaker 06:
Right.

[00:19:59] Speaker 06:
And all it says as to the bottom is said cavity having a first circumferential flange defining a mating opening, having an inner diameter.

[00:20:08] Speaker 02:
Correct.

[00:20:09] Speaker 06:
OK.

[00:20:09] Speaker 06:
So how does that say you have to have an opening at the top and an opening at the bottom?

[00:20:15] Speaker 02:
The claim says that the light emitting opening is at the wider part of the reflector and the circumferential rim is at the wider portion of the reflector and the circumferential flange is at the narrower portion.

[00:20:34] Speaker 02:
It doesn't go all the way to the bottom.

[00:20:36] Speaker 02:
I admit it doesn't say exactly top and exactly bottom.

[00:20:40] Speaker 02:
But when you read the claims and you read the specification and you see what is described in the figures and what's described in the written description itself, you see that you have a reflector that has an opening on two separate openings.

[00:20:55] Speaker 02:
And the reason it has two separate openings is because you insert the light source base into that circumferential flange that defines the mating opening.

[00:21:05] Speaker 02:
What else the claims tell you is that that light source base has its own circumferential flange, which is larger than the circumferential flange defining the inner diameter.

[00:21:17] Speaker 02:
Why?

[00:21:17] Speaker 02:
It traps the light source base so it can't go all the way through.

[00:21:21] Speaker 02:
The light source base then attaches to the ballast housing, and you have your complete device all connected together.

[00:21:30] Speaker 02:
That's what the inventor invented.

[00:21:31] Speaker 02:
And you read the claims in light of that.

[00:21:34] Speaker 02:
carry the limitations.

[00:21:35] Speaker 02:
I'm not suggesting you carry the limitations, but I'm suggesting you have to look at the context when you're looking at the claims.

[00:21:45] Speaker 02:
Given that, I think the commission's claim construction about an opening being its plain and ordinary meaning, an open space that allows a passage, that's consistent with what you see in the specification.

[00:21:56] Speaker 02:
It's consistent with what he described as his invention.

[00:21:59] Speaker 02:
Not a solid surface that

[00:22:01] Speaker 06:
Yeah, so here's my problem.

[00:22:02] Speaker 06:
It's actually not a solid surface.

[00:22:04] Speaker 06:
It has a couple openings in which the tubes come through.

[00:22:07] Speaker 06:
So in other words, the electrical connection occurs in that area.

[00:22:13] Speaker 06:
So I still don't understand why the plane, as a separate performant diagram, would require a full opening on both sides.

[00:22:22] Speaker 06:
Now, you might have an argument that because it has to be defined by the circumferential flange, that that whole piece has to

[00:22:31] Speaker 06:
have the ability to be open to an electrical connection, but that's not, but they, the claim construction of the, of the word opening seems to have gone too far.

[00:22:42] Speaker 06:
I'm not saying there might not be other non-infringement grounds, but I'm having a hard time understanding how they really just looked at the diagram and said, that's what we're focusing on.

[00:22:54] Speaker 02:
I don't think so.

[00:22:54] Speaker 02:
Because if you look at the claim language, a circumferential flange defining a mating opening, having an inner diameter.

[00:23:00] Speaker 02:
In order to have an inner diameter of a body, it has to be an opening.

[00:23:06] Speaker 02:
Otherwise, there's no inner diameter.

[00:23:08] Speaker 02:
Part of that claim language telling you that there's an inner diameter tells you it's an opening.

[00:23:14] Speaker 02:
You can't have an open space that has an inner diameter.

[00:23:18] Speaker 02:
If there's no inner diameter, it's a solid.

[00:23:28] Speaker 02:
I wanted to touch on a couple of the points that were raised by the appellant.

[00:23:37] Speaker 02:
They make some arguments about there not being support for the non-infringement position, but the commission did cite to and rely upon the testimony of Dr. Roberts.

[00:23:51] Speaker 02:
Dr. Roberts was admitted as an expert in

[00:23:57] Speaker 02:
the lighting industry, the design of CFL lamps as an electrical engineer and as the mechanical design of CFL lamps.

[00:24:05] Speaker 02:
He was admitted over the objection of counsel by the ALJ who thought that his experience was sufficient to give appropriate testimony and he did testify that there was no infringement.

[00:24:18] Speaker 02:
He described how there was no

[00:24:20] Speaker 02:
mating opening, how there was no second circumferential flange, how there was no light source base.

[00:24:25] Speaker 02:
All that testimony was part of the record.

[00:24:28] Speaker 02:
So there was full support for the commission's position.

[00:24:32] Speaker 06:
What do we do about the fact that the ALJ made different factual findings and different credibility determinations as it relates to the expert testimony than did the commission?

[00:24:42] Speaker 02:
I'm not sure if you review.

[00:24:43] Speaker 02:
My understanding, the law as I understand it, is that you are reviewing the commission's opinion, not the ALJ's opinion.

[00:24:50] Speaker 02:
and that the ALJ's opinion is part of the record, but I'm not sure what factual findings that you are referring to.

[00:24:57] Speaker 02:
Well, he found infringement.

[00:25:01] Speaker 02:
He did based on the claim construction that the commission then reversed or altered, I should say.

[00:25:08] Speaker 06:
Well, that wasn't the only thing.

[00:25:09] Speaker 06:
I mean, he also, you said the commission had five grounds of non-infringement or four grounds of non-infringement.

[00:25:15] Speaker 06:
He obviously didn't buy any of those grounds.

[00:25:17] Speaker 02:
Right.

[00:25:18] Speaker 02:
I don't think his opinion, we don't, I'm pretty, the law says that you don't reevaluate or compare the ALJ's opinion to the commission's opinion.

[00:25:28] Speaker 02:
The question before this court, is there substantial support for the commission's decision?

[00:25:34] Speaker 02:
And the commission can make its own factual findings.

[00:25:38] Speaker 02:
It is the ultimate determinator of the, determiner of the facts from the ITC.

[00:25:46] Speaker 05:
Okay, your time is up.

[00:25:49] Speaker 05:
Thank you.

[00:25:49] Speaker 02:
Thank you, Your Honor.

[00:25:50] Speaker 05:
I still have five minutes.

[00:25:57] Speaker 03:
Your Honor, very briefly, I just want to note in the Commission's final determination from the appendix at 24, the Commission stated the specification refers to the mating opening and holes as separate structures.

[00:26:13] Speaker 03:
And then also in the ITC's brief at page 26,

[00:26:16] Speaker 03:
footnote 12, the commission say that it, quote, declined to construe the opening as a whole.

[00:26:22] Speaker 03:
And now, that's just in rebuttal to what the ITC and the intervenors have argued, which they're trying, it seems, to construe opening to be a whole.

[00:26:34] Speaker 03:
But the record, even the briefs, show that the positions are relatively consistent, that opening is not limited to a whole.

[00:26:43] Speaker 06:
What about the issue of the,

[00:26:46] Speaker 06:
reflector cavity having the circumferential flange inside of it.

[00:26:51] Speaker 06:
You pretty much merged those two.

[00:26:53] Speaker 06:
How do you get around that?

[00:26:54] Speaker 03:
Your honor, the first circumferential flange being inside the cavity is not a claim element.

[00:26:59] Speaker 03:
It's not in the claims.

[00:27:01] Speaker 03:
That's something that we've briefed.

[00:27:03] Speaker 03:
It's an additional element that's been injected into them.

[00:27:08] Speaker 03:
But the claim one does have to say that the first circumferential flange is inside of the cavity.

[00:27:15] Speaker 06:
So you're saying that where it says said cavity having a first circumferential flange defining a mating opening and said cavity having an interior wall defining a reflective surface of the reflector having a substantial larger diameter at the circumferential rim than the circumferential flange.

[00:27:32] Speaker 06:
You're saying that that reflective interior wall and the circumferential flange could be one in the same?

[00:27:40] Speaker 03:
Yes, your honor.

[00:27:43] Speaker 03:
And as part of that,

[00:27:44] Speaker 03:
In the embodiments, you'll have a radially projecting circumferential flange, and then the accused product is actually projecting, and the evidence, that person with ordinary skill in the art reading the intrinsic evidence, would not distinguish between axially projecting or radially projecting circumferential flange.

[00:28:04] Speaker 03:
In your honor, if I may, I also want to reiterate with the quotes that I read from the ITC's brief and the final determination is that, again, figure one,

[00:28:13] Speaker 03:
Claim one, excuse me, like figure one, is an apparatus claim to a fluorescent reflector lamp.

[00:28:20] Speaker 03:
It's not a method of manufacturing, which is why you'll see that on both sides, mating opening is not limited to a hole, because in the assembled product, there is no hole as mating opening.

[00:28:33] Speaker 03:
The last point, Your Honor, if I may, is that Dr. Roberts just want to be clear

[00:28:40] Speaker 03:
he testified in terms of claim construction under a different level of ordinary skill in the art.

[00:28:45] Speaker 03:
There was one offered by appellants that was adopted by the ALJ.

[00:28:50] Speaker 03:
That was not the level of ordinary skill that Dr. Roberts was testifying under in terms of his claim construction position.

[00:29:00] Speaker 03:
In terms of non-infringement, Dr. Roberts testified that under the constructions adopted by the ALJ, only one of which was reversed by the commission,

[00:29:09] Speaker 03:
that he had no non-infringement opinions.

[00:29:12] Speaker 03:
So that's what we mean when we say that those four or five rounds of rejection, they're not supported by the evidence.

[00:29:20] Speaker 03:
Because Dr. Roberts himself said, I don't have the non-infringement opinion under these constructions.

[00:29:26] Speaker 06:
But as long as there was one that the commission adopted, then you've got a problem because you have to meet every limitation, correct?

[00:29:34] Speaker 03:
That's correct, Your Honor.

[00:29:35] Speaker 03:
So what I'm saying is the only construction that was

[00:29:38] Speaker 03:
altered by the commission was mating opening.

[00:29:42] Speaker 03:
So if that's reverse, we're saying that there's no substantial evidence supporting the non-infringement finding.

[00:29:53] Speaker 03:
Okay.

[00:29:53] Speaker 03:
Thank you, Your Honor.

[00:29:54] Speaker 05:
Thank you.

[00:29:54] Speaker 05:
All right.

[00:29:58] Speaker 05:
The case will be submitted.