[00:00:00] Speaker 02:
Case for argument is 141686, Cambian Science Corporation versus Cox Communication.

[00:00:25] Speaker 02:
Is it Mr. Quisenberry?

[00:00:26] Speaker 02:
Quisenberry.

[00:00:27] Speaker 02:
Quisenberry.

[00:00:27] Speaker 02:
Whenever you're ready, sir.

[00:00:34] Speaker 04:
Good morning.

[00:00:35] Speaker 04:
May it please the court.

[00:00:37] Speaker 04:
So this appeal, all the issues relate to the phrase active waveguide coupler.

[00:00:46] Speaker 04:
The district court construed, at least in relevant part, this phrase to mean a component in which the absorption of an optical signal can be changed to gain by application of pumping.

[00:01:00] Speaker 04:
There are a number of problems with this.

[00:01:02] Speaker 04:
We think it should be reversed.

[00:01:04] Speaker 02:
uh... for example the words or an optical signal gain in pumping here nowhere in the claim language uh... in addition that i have not analyzed our claim construction cases but i hate to think how many of those have a claim construction under markman might have words that aren't themselves in the claim well i'll get to that it does have the word active in the claim right so one's got to figure out what that means

[00:01:30] Speaker 04:
Yes, ma'am.

[00:01:32] Speaker 04:
And so another issue that we have with the district court's construction is with respect to limiting the scope of it to pumping only for gain.

[00:01:45] Speaker 04:
The specification teaches that there are other reasons that one might want to pump.

[00:01:52] Speaker 04:
For example, at column 8, lines 19 to 23,

[00:01:57] Speaker 04:
It does give gain as one option that you might want to plan.

[00:02:02] Speaker 02:
I'm not sure I'm clear on this.

[00:02:03] Speaker 02:
So are you saying pumping can go with passive?

[00:02:07] Speaker 04:
What I'm saying is that the district court's construction of limiting the active waveguide coupler to pumping only for gain is unduly limiting.

[00:02:20] Speaker 04:
It's excluding other embodiments.

[00:02:22] Speaker 04:
and importing limitations from the specification.

[00:02:26] Speaker 03:
We're obviously avoiding the question about active versus passive, which would seem to be critical here.

[00:02:36] Speaker 04:
Okay, can I have the question again?

[00:02:38] Speaker 02:
Well, you're talking about gain, pumping for gain, so you're suggesting that passive is covered by this because it doesn't require pumping for gain?

[00:02:50] Speaker 02:
I'm not clear what your argument is.

[00:02:52] Speaker 04:
I'm not arguing that passive means pumping for gain.

[00:02:56] Speaker 02:
Okay.

[00:02:56] Speaker 04:
That's not our argument.

[00:02:58] Speaker 04:
My point is that the district court's construction is wrong because it's unduly limiting.

[00:03:06] Speaker 04:
It excludes other embodiments.

[00:03:09] Speaker 03:
Okay, which embodiment?

[00:03:10] Speaker 04:
Pardon me?

[00:03:11] Speaker 04:
Which embodiment?

[00:03:12] Speaker 04:
Okay, in figure or I'll strike that in column 8, lines 19 to 23,

[00:03:20] Speaker 04:
This is where the patent gives examples of reasons that one might want to pump.

[00:03:29] Speaker 04:
And what it says is that you might want to pump for desired gain, okay?

[00:03:35] Speaker 04:
That's the one the district court cherry picked out and stuck into the claim.

[00:03:40] Speaker 04:
But it also says you might want to pump to provide desired pumping current, including leakage.

[00:03:48] Speaker 04:
You might also want to pump to provide desired heat load.

[00:03:53] Speaker 05:
How do you impart gain through pumping?

[00:03:58] Speaker 05:
Isn't that through providing current to the material?

[00:04:05] Speaker 05:
You've got to pump current into the active material, and by doing that, you impart gain in your optical signal?

[00:04:14] Speaker 05:
That is one way, yes.

[00:04:18] Speaker 05:
What else would you be pumping besides current?

[00:04:22] Speaker 04:
Well, it could be a voltage.

[00:04:25] Speaker 04:
It could be some sort of a change in temperature.

[00:04:29] Speaker 04:
You're pumping a change of temperature?

[00:04:34] Speaker 04:
Well, I think you're getting into maybe a question of what does it mean to pump?

[00:04:42] Speaker 04:
And, I mean, the patent clearly teaches here that there are other reasons that one might want to pump, other than just for gain.

[00:04:50] Speaker 05:
I guess what I'm, I'm sorry, I'm just trying to understand why aren't all of these items somehow all interrelated?

[00:05:00] Speaker 05:
You're pumping current

[00:05:02] Speaker 05:
to achieve a desired gain, and when you're pumping current into that material, the material is going to heat up some.

[00:05:13] Speaker 05:
I hear what you're saying, Your Honor, but what does... It's not like a menu of different choices of what you would do when you pump, whatever the word pumps.

[00:05:23] Speaker 04:
But that's what this passage from the specification does give you as a menu.

[00:05:28] Speaker 02:
Well, I don't understand.

[00:05:30] Speaker 02:
Keep going.

[00:05:30] Speaker 02:
Keep reading.

[00:05:31] Speaker 02:
You gave us to line 23.

[00:05:34] Speaker 02:
But why don't you read the sentence starting at line 23, which says, whether a portion of the circuit of the President's invention is pumped or not, that portion is formed of active material so as to eliminate active to passive interfaces and the undesirable effects and costs associated therewith.

[00:05:53] Speaker 02:
Didn't this form the basis for the district court's claim construction?

[00:05:57] Speaker 02:
This is one of the sections, I think.

[00:05:59] Speaker 02:
Well, I don't know that this... So this is what you've pointed us to, to try to prove your point, that this embodiment isn't covered by the claim's instruction, and that I'm not seeing it when you read the paragraph in its entirety.

[00:06:10] Speaker 04:
I'm not seeing it.

[00:06:11] Speaker 04:
Okay, there were two questions in there, and I want to get you both.

[00:06:13] Speaker 04:
Yes, I appreciate it.

[00:06:14] Speaker 04:
So on the question of whether the district court pointed to this section to support its construction, the answer is no.

[00:06:21] Speaker 04:
Okay, the district court pointed to only two little specific pieces of evidence.

[00:06:26] Speaker 04:
to support its construction.

[00:06:28] Speaker 04:
One of them was... Let's leave what the district court did.

[00:06:35] Speaker 02:
We're here on arguably some variation of de novo review.

[00:06:38] Speaker 02:
What do you, how do you construe the second sentence in the paragraph to which you called our conscience?

[00:06:44] Speaker 02:
Where it says, that portion is formed of active material, as shown in Figure 4, so as to eliminate active to passive interfaces, as shown in Figure 3, and the undesirable effects and associated therewith.

[00:06:56] Speaker 02:
What does that mean?

[00:06:57] Speaker 04:
Well, I think that this, again, is not with, is with respect to a specific embodiment, okay?

[00:07:04] Speaker 04:
And what it's really talking about is Figure 3,

[00:07:07] Speaker 04:
Okay, which is the piece of prior art that shows the pile up of the transition between the active and the passive material.

[00:07:17] Speaker 04:
The jarring abutment is what we refer to it as.

[00:07:19] Speaker 03:
It's not just one embodiment.

[00:07:21] Speaker 03:
All over this pattern is a statement to eliminate active to passive interfaces.

[00:07:27] Speaker 03:
And isn't that what the defendant uses?

[00:07:31] Speaker 03:
Passive.

[00:07:32] Speaker 04:
Well, I think that gets into a question of what does passive mean.

[00:07:36] Speaker 00:
You know, that's not an issue that was litigated.

[00:07:38] Speaker 04:
And we didn't, you know, the experts didn't go into that question.

[00:07:42] Speaker 04:
This was all focused on the claim construction that we were given.

[00:07:47] Speaker 04:
And as we've explained in our brief, even if we go with the district court's claim construction, we still think that when you look at the component, the combination of the SOAs and the AWG,

[00:08:01] Speaker 04:
it is a component in which the absorption of an optical signal can be changed to gain by application of pumping.

[00:08:08] Speaker 04:
What the defendants want to do is focus only on the AWG and say that portion of it can't meet the district force construction.

[00:08:17] Speaker 04:
But what our theory is, is that you look at the combination of the SOAs and the AWG.

[00:08:24] Speaker 04:
And if you look at the SOAs, we've made this point time and again and the defendants haven't responded to it, is that the SOA

[00:08:31] Speaker 04:
piece of our component clearly meets that limitation.

[00:08:36] Speaker 04:
It is a component, that portion of it, in which the absorption of an optical signal can be changed to gain by application.

[00:08:45] Speaker 05:
Why would the SOA be part of the claimed active coupler when the SOAs and the Q's device are not joining together, combining together all these different lasers?

[00:08:58] Speaker 05:
all of that is happening in the AWD, which happens to be made of passive material.

[00:09:03] Speaker 04:
But keep in mind the location of the SOAs.

[00:09:06] Speaker 04:
You've got an array of lasers, okay, with light coming out.

[00:09:10] Speaker 04:
The light coming out of each laser goes through its own independent SOA, okay?

[00:09:15] Speaker 04:
That's the piece of it that we say

[00:09:18] Speaker 04:
needs this third part of the district court's construction and then the light come out of the S.O.A.

[00:09:25] Speaker 04:
and it's bad into the array weight guy great in the A.W.G.

[00:09:31] Speaker 05:
which is what the defendants call it so which is the component that's doing all the combining of the individual.

[00:09:42] Speaker 05:
That's the divide that doing the couple.

[00:09:46] Speaker 04:
Well

[00:09:46] Speaker 04:
What our theory is, it's the combination of the AWG with the SOAs that literally meets the claim language.

[00:09:57] Speaker 05:
Your patent though distinguishes SOAs, semiconductor optical amplifiers, from the couplers.

[00:10:06] Speaker 05:
It consistently describes those as two separate components.

[00:10:11] Speaker 05:
There's never any suggestion in your patent that those two should be somehow stuck together and deemed to be some kind of larger functional integrated component.

[00:10:28] Speaker 04:
Well, I think that if you look for example towards the end of the specification,

[00:10:35] Speaker 04:
uh... for example column thirteen lines forty three to forty five point well this is not going to play this is very specific part of what i think patent lawyers would generally refer to a boilerplate at the end but this is more than just boilerplate this starts with what might be boilerplate i mean you could say for example at column thirteen lines twenty nine thirty one

[00:11:04] Speaker 04:
It is understood that the exemplary pic described here and shown in the drawings represents only presently preferred embodiments of the invention.

[00:11:13] Speaker 04:
That may be what your honor is referring to as boilerplate language, but within that same paragraph, it goes on and gives some examples.

[00:11:21] Speaker 04:
And one of them that it gives is this clause that I was about to quote at column 13, line 43 to 45, where it says,

[00:11:30] Speaker 04:
Quote, additionally, each channel of the active combiner may optionally have separate electrodes such that the gain of each channel is independent with respect to the gain of each other channel.

[00:11:42] Speaker 04:
Okay, that's specific.

[00:11:43] Speaker 04:
That's not boilerplate.

[00:11:45] Speaker 04:
And when you look at what the defendants did and you compare it to the prior art that was shown, recall all the prior art showed the SOAs over, it was a single SOA at the output of the coupler.

[00:12:00] Speaker 04:
So it went laser, coupler, SOA.

[00:12:04] Speaker 04:
And what they've done in their products is they've moved the SOA over between the coupler and the lasers.

[00:12:13] Speaker 04:
They have the SOAs between the lasers and the coupler.

[00:12:17] Speaker 04:
And what they're doing essentially is exactly what's disclosed in that last paragraph that I just read.

[00:12:26] Speaker 04:
What they're doing is they're controlling independently

[00:12:29] Speaker 04:
each channel that's going into the coupler.

[00:12:32] Speaker 04:
That's exactly what's talked about here.

[00:12:35] Speaker 05:
And so, we say anything right there in column 13 about how in those instances it's okay to have active to passive interfaces?

[00:12:45] Speaker 04:
The phrase active to passive, I don't believe is discussed in that last paragraph.

[00:12:53] Speaker 02:
I see... You used the key of rebuttal, so why don't you save that and... Okay.

[00:12:57] Speaker 05:
Thank you.

[00:13:04] Speaker 01:
May it please the court, Ruffin Cordell for defendants and appellees.

[00:13:10] Speaker 01:
I believe that the court is focused on all the right issues here.

[00:13:14] Speaker 01:
The construction reached by the district court for active wave ride coupler was in fact correct.

[00:13:20] Speaker 02:
Can I just ask you a more general question about the law and the legal standards applied here?

[00:13:25] Speaker 02:
There's a lot of discussion in this case about disclaimers.

[00:13:28] Speaker 02:
And our case law is pretty stringent in terms of disclaimers.

[00:13:32] Speaker 02:
My question to you is,

[00:13:34] Speaker 02:
why we're talking about disclaimers in this case, that don't disclaimers go where there's claim language that covers it, and then you have to clearly take it out.

[00:13:42] Speaker 02:
And I would think your argument here would be the claim language says active.

[00:13:48] Speaker 02:
There's no reason to have necessarily a strict disclaimer in order for you to prevail in your claim construction.

[00:13:55] Speaker 01:
Precisely, Your Honor.

[00:13:56] Speaker 01:
We struggled with this at claim construction.

[00:13:58] Speaker 01:
So we actually presented many of what became our disavowal arguments

[00:14:03] Speaker 01:
yet at summary judgment as part of claim construction, but they didn't really have necessarily a precise home.

[00:14:11] Speaker 01:
So they were in support of our construction of active, that in fact it had to be active material, not passive material.

[00:14:18] Speaker 01:
But the disavowal of all active to passive interfaces per se wasn't core to the construction of active.

[00:14:26] Speaker 01:
And so we argued it.

[00:14:27] Speaker 01:
It was part of it.

[00:14:28] Speaker 01:
But it wasn't really until we got to the summary judgment phase that we added in the additional layer of disavowal.

[00:14:35] Speaker 01:
And as I've read the court's cases, it's been very interesting in this particular matter.

[00:14:41] Speaker 01:
We sometimes treat disclaimer as a claim construction proposition and disavowal as an infringement proposition.

[00:14:48] Speaker 01:
And we certainly were not precise in the briefing, so I apologize about that.

[00:14:53] Speaker 01:
Because at summary judgment before the district court,

[00:14:57] Speaker 01:
We argued disavowal, and we relied very heavily on the Chicago Board of Exchange case, the CBOE case.

[00:15:06] Speaker 01:
And there, the disavowal was used not necessarily as part of claim construction, but as infringement analysis, so at that portion of the case.

[00:15:15] Speaker 01:
And that's really what happened here.

[00:15:17] Speaker 01:
When we briefed it, I think the appellant used the word disclaimer, and we just parroted that back.

[00:15:22] Speaker 01:
But I don't think there's much of a difference.

[00:15:24] Speaker 01:
The legal standard is the same.

[00:15:26] Speaker 01:
It still has to be clear and unmistakable.

[00:15:28] Speaker 01:
And the effect is the same.

[00:15:29] Speaker 01:
You can't cover subject matter that you would have otherwise perhaps been able to, whether you've disclaimed it or disavowed it.

[00:15:38] Speaker 01:
So I'm not sure it makes much of a difference, but it is interesting.

[00:15:41] Speaker 02:
Let me ask you another question, which is, is there a TEVA issue presented in this case?

[00:15:47] Speaker 02:
Kind of cuts the opposite way that you would assume, generally, because you would be the people saying there ought to be deference to the district courts relying on an expert.

[00:15:55] Speaker 02:
But is that in play in this case?

[00:15:58] Speaker 01:
In a very small way.

[00:15:59] Speaker 01:
And it's just this, that we did present expert testimony at Markman.

[00:16:05] Speaker 01:
We relied on our expert, Dr. Koch,

[00:16:08] Speaker 01:
because we anticipated that the appellant was going to call their expert.

[00:16:12] Speaker 01:
And so we brought ours.

[00:16:14] Speaker 01:
The appellant, for whatever reason, decided not to.

[00:16:15] Speaker 01:
So only our expert testified.

[00:16:17] Speaker 01:
But he was sworn in.

[00:16:18] Speaker 01:
He did a tutorial.

[00:16:19] Speaker 01:
He was cross-examined.

[00:16:21] Speaker 01:
And essentially, his opinion was that one of ordinary skill in the art would interpret the claims consistently with defendant suggestions for claims like the active waveguide coupler.

[00:16:33] Speaker 01:
The court did the analysis on the intrinsic record all the way through.

[00:16:37] Speaker 01:
And then at the end said, I recognize Dr. Koch.

[00:16:40] Speaker 01:
I think he was very credible.

[00:16:42] Speaker 01:
And I think his opinion is consistent with mine.

[00:16:44] Speaker 01:
And that's the full extent to which he was lying.

[00:16:47] Speaker 02:
So this is a case about intrinsic reference.

[00:16:48] Speaker 01:
I believe that's right.

[00:16:49] Speaker 01:
And I think to the extent there are any doubts in the court's mind and resort is had to extrinsic evidence, in that case, then Teva would say that we need to give the court's findings with respect to Dr. Koch definitely.

[00:17:01] Speaker 02:
But it's a small, small issue.

[00:17:03] Speaker 02:
I've distracted you so far.

[00:17:04] Speaker 02:
So why don't you bring us back to this case.

[00:17:07] Speaker 02:
And if you could, in your discussion, refer to what your friend called our attention to on column 13.

[00:17:12] Speaker 02:
Maybe start with that.

[00:17:13] Speaker 01:
Sure.

[00:17:14] Speaker 01:
So he referred to that as sort of the boilerplate plus, which I think is probably accurate.

[00:17:22] Speaker 01:
But what we have to do is we have to read it very carefully.

[00:17:25] Speaker 01:
So what it's talking about here is that you can provide an SOA on each channel.

[00:17:31] Speaker 01:
Therefore, you can amplify using control on each channel.

[00:17:35] Speaker 01:
It says nothing about whether that SOA is somehow combined with a coupler.

[00:17:41] Speaker 01:
And in fact, I would argue it says just the opposite, that in order to have an SOA that you can control for each channel, it cannot be combined with the coupler, because then amplification is integral to all of the channels that are going through the coupler.

[00:17:55] Speaker 01:
So this passage at 13 lines, so I guess it's about 42 through 48, I think actually cuts in favor of descendants of Appellee's here, because it actually says that this SOA is separate from the combiner to allow you to have this individual control.

[00:18:16] Speaker 01:
The court also asked questions about pumping, and I think my opponent suggested that pumping was used for various purposes, and I'd like to address that if I could.

[00:18:25] Speaker 01:
If we go back to the specification, we see that it does discuss pumping.

[00:18:33] Speaker 01:
And it tells us why you pump.

[00:18:34] Speaker 01:
And the place I'd like to start is column 7, line 62.

[00:18:39] Speaker 01:
And there, it tells us, so it's discussing the MMI coupler, which is one of these active waveguide couplers.

[00:18:46] Speaker 01:
And it says that the MMI coupler of figure 6 is optionally pumped substantially over the entire region thereof.

[00:18:53] Speaker 01:
In this manner, maximum gain may be obtained.

[00:18:56] Speaker 01:
So when you really need to turn up the volume because you're pushing a signal out over long, long distances, you pump the entire thing.

[00:19:03] Speaker 01:
But then it says, and these are the sections that the appellant keeps pointing to over and over again at the top of column 8, so beginning at line 9, it says, those skilled in the art will appreciate that pumping or current injection can occur at various different portions of an active device.

[00:19:20] Speaker 01:
The gain, the pumping current, including any leakage current and the heat load, can be controlled to some degree by pumping only selected portions of an active device.

[00:19:29] Speaker 01:
So if you want maximum gain, you pump the whole thing.

[00:19:31] Speaker 01:
But if you're worried about heat load and leakage current, which are actually unwanted side effects of pumping, Judge Chen, you're exactly correct.

[00:19:39] Speaker 01:
They inject current into these things in order to give them the ability to amplify the signal.

[00:19:44] Speaker 01:
And that has unwanted side effects.

[00:19:46] Speaker 01:
It heats it up.

[00:19:47] Speaker 01:
And you have leakage current that might bleed into other portions of the circuit that you don't want.

[00:19:52] Speaker 01:
And so what the passages in column 8 there and then again at 13 through 16 are talking about are managing the unwanted side effects.

[00:20:02] Speaker 01:
It's not a menu of options.

[00:20:04] Speaker 01:
Any time you pump the circuit, you're going to have heating.

[00:20:07] Speaker 01:
Own taught us that.

[00:20:09] Speaker 01:
Any time that you put current into a very small

[00:20:14] Speaker 01:
semiconductor structure, you will have leakage currents.

[00:20:17] Speaker 01:
That's a physical fact.

[00:20:18] Speaker 01:
And this is talking about managing that process, not that you would ever want to have this unwanted side effect.

[00:20:25] Speaker 01:
So that really is a technical, it's just not correct.

[00:20:33] Speaker 01:
There was also some discussion about the disclaimer.

[00:20:38] Speaker 01:
So if I could just touch on that briefly.

[00:20:40] Speaker 01:
Now I've done it.

[00:20:41] Speaker 01:
It's disavowal, not disclaimer.

[00:20:44] Speaker 01:
The thing that I think is remarkable about this case is not just the breadth of the repeated statements about the lack of active to passive transitions, but it's set up in the patent that there is a fundamental problem here with active to passive transitions.

[00:21:03] Speaker 01:
We have problems in alignment at column 2, 20 through 28, in manufacturing in that same passage.

[00:21:10] Speaker 01:
the time and expense required to make these active to passive transitions at 233 to 37.

[00:21:17] Speaker 01:
And then most importantly, at column 2, 41 through 48, it talks about these unwanted reflections, that any time you have that active to passive transition, the discontinuity causes the signal to reflect off of the discontinuity, much like you appearing at your image in a pool.

[00:21:33] Speaker 01:
The change in the index of refraction

[00:21:37] Speaker 01:
causes some of the signal to bounce right back out at the laser, and that's a big, big problem.

[00:21:42] Speaker 01:
They then propose a solution, and we see it at the juxtaposition of figures three and four, which is reproduced at page eight of our brief.

[00:21:49] Speaker 01:
And it shows you that they have replaced the active to passive transition with an active to active transition.

[00:21:56] Speaker 01:
And then every single figure thereafter that talks about the prior art and the invention, and these structures are side by side, so I commend them.

[00:22:06] Speaker 01:
pages nine and seven, eight, and nine of our brief, but figures one and five are compared.

[00:22:11] Speaker 01:
The only difference is the removal of the active to passive transition.

[00:22:15] Speaker 01:
Figure one is prior art.

[00:22:16] Speaker 01:
Figure five is the invention.

[00:22:18] Speaker 01:
At page eight of our brief, figure two and figure six are presented.

[00:22:22] Speaker 01:
Figure two is prior art that has the active to passive transitions.

[00:22:25] Speaker 01:
Figure six does not.

[00:22:26] Speaker 01:
At page nine of our brief, we have figures eight and nine and figures 10 and 11.

[00:22:30] Speaker 01:
In every single disclosed embodiment, the only difference between those drawings is the removal of those active to passive transistors.

[00:22:37] Speaker 05:
Is your device, the AWG, it's passive?

[00:22:41] Speaker 05:
It is, Your Honor.

[00:22:42] Speaker 05:
Made of passive material?

[00:22:43] Speaker 01:
It is, and that was reflected in the deposition of Dr. Duda.

[00:22:47] Speaker 05:
So do you have those unwanted reflections at the junction?

[00:22:50] Speaker 01:
We do.

[00:22:51] Speaker 05:
Do you have pile-ups?

[00:22:53] Speaker 01:
You know, the pileup was a new argument they raised on appeal, so that actually wasn't litigated.

[00:23:00] Speaker 01:
Our manufacturing process is very good, so we try our best to avoid pileups.

[00:23:06] Speaker 01:
But we do have the butt joint, and you'll see it in page 12 of the red brief or page 8 of the blue brief.

[00:23:13] Speaker 01:
We have a diagram of the actual circuit, and you can see that there's a laser at the

[00:23:21] Speaker 01:
at the top of the diagram, and then the SOA is below it.

[00:23:25] Speaker 01:
And then there's something called a butt joint.

[00:23:27] Speaker 01:
And that butt joint is that active-depassive interface.

[00:23:30] Speaker 01:
There's then a passive waveguide, a series of optical wires, if you want to call them that, that take the signal and transport it all the way across the circuit to the AWG, to what they've accused as the coupler.

[00:23:42] Speaker 01:
And it's undisputed that that is a passive device.

[00:23:45] Speaker 01:
And we have that at A.

[00:23:49] Speaker 01:
9088, the testimony of their expert doctor today.

[00:23:52] Speaker 05:
At certain points of this patent, it appears to make clear that they aren't seeking to definitively for all times remove any kind of interface between active and passive in their photonic integrated circuit, right?

[00:24:10] Speaker 05:
There's words like you're mitigating them or you're substantially removing

[00:24:16] Speaker 05:
passive regions.

[00:24:18] Speaker 05:
So there's some play in the joints, it feels like, in this patent.

[00:24:22] Speaker 01:
I saw those as well, Your Honor, and the best that at least we interpreted as we were going through the case is that perhaps what they were referring to, because they don't really tell us, but perhaps what they were referring to is the fact that these are integrated devices, so they are etched much in the way the court is familiar with the way semiconductor memory or microprocessors were etched and laid out using

[00:24:45] Speaker 01:
and so there are anomalies in the manufacturing process.

[00:24:50] Speaker 01:
So you could easily see that within an active region, there's a region that didn't get enough of the doping to make it fully active.

[00:24:57] Speaker 01:
And so you could have some passive material.

[00:25:00] Speaker 01:
And that's really the way I read the patent discussion of it.

[00:25:05] Speaker 01:
With respect to the mitigation point, they tell us at the bottom of column six, I think, that they expect that while removing the active to passive interfaces,

[00:25:15] Speaker 01:
goes a long way to solving the problem.

[00:25:18] Speaker 01:
They acknowledge beginning at about, well, 62 referring down to figure four, according to the president mentioned, an interface between two active regions, 60 and 62, does not create such large undesirable reflections.

[00:25:32] Speaker 01:
The reflections caused by the interface, 59, are negligibly small.

[00:25:36] Speaker 01:
So they acknowledge that even in the active to active case, you might still have

[00:25:40] Speaker 01:
some reflections, but they're negligibly small.

[00:25:42] Speaker 01:
And so they have mitigated it by removing the passive to active interfaces.

[00:25:47] Speaker 01:
And that's how I wrote that.

[00:25:48] Speaker 01:
If I can make one last point, Judge Chen, you asked about whether we could treat this red box where they take the SOA and combine it with the AWG.

[00:25:59] Speaker 01:
And the one thing that I'd like to say about that is, first, the disavowal falls squarely in this.

[00:26:04] Speaker 01:
I mean, they are essentially vitiating their disavowal by drawing that red box.

[00:26:09] Speaker 01:
But more than that, they rely heavily on the Toro case.

[00:26:12] Speaker 01:
And one of the teachings of the Toro case is that you may be able to take a single claim element and divide it between two structures.

[00:26:19] Speaker 01:
But where it is a key objective of the invention, that that's really not allowed.

[00:26:24] Speaker 01:
And that's what they're doing here.

[00:26:25] Speaker 01:
So the amplifier exists in the prior art.

[00:26:27] Speaker 01:
It's in figure one.

[00:26:29] Speaker 01:
They've got the SOA.

[00:26:30] Speaker 01:
They've got the combiner or the coupler as two separate elements.

[00:26:33] Speaker 01:
It is treated as separate elements throughout the specification.

[00:26:36] Speaker 01:
The SOA is utilized and it's claimed individually in Claim 58, which depends from Claim 57.

[00:26:44] Speaker 01:
So on balance, I think they really can't take those two elements and somehow try to mix them together.

[00:26:50] Speaker 05:
What about the other side's expert supplemental declaration?

[00:26:54] Speaker 05:
Do you still believe that the entire declaration was stricken?

[00:26:58] Speaker 01:
It was not.

[00:26:59] Speaker 01:
There were only certain paragraphs that were stricken.

[00:27:01] Speaker 01:
The place where that issue falls is on the DOE.

[00:27:05] Speaker 05:
I should rely on the gray brief for that then?

[00:27:08] Speaker 01:
Well, I caution you.

[00:27:10] Speaker 01:
What they represent in the gray brief is that there were, I believe, six paragraphs that they cited from their expert's declaration that they said, again, more on the doctrine of equivalence issue.

[00:27:21] Speaker 01:
There were two paragraphs that were never stricken that, in fact, talk about doctrine of equivalence, but it's just parroting the standard, function-wise result, or insubstantial differences.

[00:27:30] Speaker 01:
There's no analysis.

[00:27:32] Speaker 01:
There's no precise testimony or leaking argument.

[00:27:35] Speaker 01:
It's just the boilerplate.

[00:27:37] Speaker 01:
The other paragraphs that are cited in the gray brief are actually speaking to literal infringement.

[00:27:42] Speaker 01:
And as the court is well aware, DOE is not a lesser included offense to literal infringement.

[00:27:48] Speaker 01:
And so they can't rely on the paragraphs that survived the motion to strike about literal infringement to try to support their DOE show.

[00:27:59] Speaker 01:
OK, thank you.

[00:28:06] Speaker 04:
Okay, there was a lot there.

[00:28:07] Speaker 04:
Let me just start, if I may, with this last point about the doctrine of equivalence.

[00:28:13] Speaker 04:
Because the defendant would leave the court to believe that there are only two paragraphs in those expert declarations that bore on the doctrine of equivalence.

[00:28:21] Speaker 04:
And that's wrong, as we explained in our brief.

[00:28:23] Speaker 04:
And I want to direct the court's attention, for example, to paragraph 182.

[00:28:29] Speaker 04:
It's in the record at A7-990.

[00:28:33] Speaker 04:
And what it says is, quote, SOAs are used at the input side of the active coupler to amplify the optical power in its respective channel feeding into the AWG section of the coupler.

[00:28:48] Speaker 04:
In this way, the SOA and the coupler are a single functional component.

[00:28:54] Speaker 04:
Okay?

[00:28:55] Speaker 04:
That's not conclusory evidence.

[00:28:58] Speaker 04:
Detailed expert opinion that just so happens to be linking in with that last clause in the boilerplate plus is what Mr. Cordell called it, which is you put the SOAs in between the lasers and the coupler and you increase, you control the gain through each electrode going in there.

[00:29:20] Speaker 04:
So there is some detailed testimony in the expert disclosures on that issue.

[00:29:28] Speaker 04:
On the SOA issue, I believe I heard Mr. Cordell say that at the bottom of column 13, that section said that SOAs are separate.

[00:29:45] Speaker 04:
This goes to Judge Chin's point earlier.

[00:29:48] Speaker 04:
That's not what that says.

[00:29:50] Speaker 04:
in that section.

[00:29:52] Speaker 04:
It doesn't mention that SOAs are separate components.

[00:29:57] Speaker 04:
And in fact, during claim construction, the defendant attempted to get a construction of SOA that the SOA had to be distinct from a coupler, and the district court rejected that construction.

[00:30:16] Speaker 04:
On the issue of disclaimer, I heard what the chief judge said about this court's case law being stringent.

[00:30:26] Speaker 04:
I agree with that.

[00:30:27] Speaker 04:
It's an exacting standard.

[00:30:29] Speaker 04:
It has to be clear and unmistakable.

[00:30:32] Speaker 04:
And I heard that Mr. Cordell said they struggled with this issue at Martin.

[00:30:37] Speaker 04:
And so as a practical matter,

[00:30:39] Speaker 04:
this issue was not brought up during mark and we were given a claim construction we prepared the case based on that construction then at the end of the case as we're going into summary judgment briefing the issue of disclaimer in all these cases pop up for the first time and we get an adjustment in my opinion from the district court on his claim construction when he said that uh...

[00:31:09] Speaker 04:
At the top of, this is in the MSJ order, page 41 of it, it's in the record at A71.

[00:31:22] Speaker 04:
What the district court said is all that is required is the absence of active to passive transitions within the signal path of the active waveguide coupler.

[00:31:33] Speaker 04:
That's kind of a gloss or an interpretation by the district court of its own construction.

[00:31:40] Speaker 04:
We didn't have the benefit of that while we were going through the case.

[00:31:43] Speaker 04:
So here we are, the case is getting decided against us, we're going out the door and we're given this new construction that we never had before.

[00:31:52] Speaker 05:
Did you have an opportunity to brief it during the summary judgment briefing?

[00:31:55] Speaker 04:
It was never argued.

[00:31:58] Speaker 05:
what this point about whether or not there was a disclaimer disavowal in your specification that was never argued or presented in any of the briefing, it just popped up the first time in the summary judgment decision?

[00:32:11] Speaker 04:
Yes, well no, disclaimer was argued, they made the point for the first time in their summary judgment briefing.

[00:32:18] Speaker 04:
They argued for a complete disclaimer, all disclaimer.

[00:32:21] Speaker 05:
This... Right, and did you then respond to that in your briefing?

[00:32:25] Speaker 04:
Yes, we did.

[00:32:29] Speaker 04:
We didn't respond to what the district court said here because we had no idea.

[00:32:35] Speaker 04:
This argument was never presented.

[00:32:37] Speaker 04:
There was never an argument made by the defendants that said this claim construction should mean all that is required is the absence of active to passive transitions within the signal path.

[00:32:50] Speaker 04:
That argument was never made.

[00:32:52] Speaker 04:
We never had any notice of it.

[00:32:54] Speaker 04:
We didn't get any notice of that until we got the MSJ work.

[00:32:59] Speaker 04:
And so that is why we feel like we were denied due process.

[00:33:04] Speaker 04:
We didn't have notice of that.

[00:33:05] Speaker 04:
We didn't have a meaningful opportunity to respond to it.

[00:33:10] Speaker 02:
Okay, we have your argument.

[00:33:12] Speaker 02:
We thank the Council for its commitment.

[00:33:14] Speaker 02:
That concludes our proceedings for this morning.

[00:33:15] Speaker 04:
Thank you.