[00:00:39] Speaker ?:
All right.

[00:01:36] Speaker 03:
I'm sorry.

[00:02:10] Speaker 07:
All rise!

[00:02:36] Speaker 07:
The United States Court of Appeals for the Federal Circuit

[00:02:39] Speaker 07:
is now open and in session.

[00:02:41] Speaker 07:
God save the United States and its honorable court.

[00:02:45] Speaker 06:
Please be seated.

[00:02:49] Speaker 06:
We have just one argument to hear this morning.

[00:02:53] Speaker 06:
Number 151684 DSS technology against Taiwan semiconductor.

[00:03:01] Speaker 06:
Mr.

[00:03:20] Speaker 02:
Thank you, Your Honor.

[00:03:22] Speaker 02:
Good morning, and may it please the Court.

[00:03:25] Speaker 02:
My name is Christian Hurt, and I'm here today on behalf of DSS Technology Management, Inc.

[00:03:31] Speaker 02:
This appeal raises a single issue, whether the patterned layer claimed in the 084 patent is limited to the same layer material as the imaging layer, and it is not.

[00:03:43] Speaker 02:
This patent relates to semiconductor manufacturing, and it's undisputed that a patterned layer in that field

[00:03:50] Speaker 02:
is simply a layer that contains the pattern.

[00:03:53] Speaker 02:
Nothing in the ordinary meaning of that term narrows it, nor does any of the surrounding claim language, which simply requires that the imaging layer is used to form the patterned layer.

[00:04:05] Speaker 06:
Your argument requires that at least some, in some embodiments, the pattern layer is not the immediate result of patterning.

[00:04:18] Speaker 06:
under the construction that you don't challenge of the term patterning, right?

[00:04:24] Speaker 02:
I don't believe so.

[00:04:26] Speaker 02:
And your honor mentioned embodiments.

[00:04:28] Speaker 02:
The embodiment in the spec, the preferred embodiment, is where the same layer, the imaging layer and the pattern layer, one and the same.

[00:04:37] Speaker 02:
Our argument does not depend on there being a separate embodiment disclosed in the specification.

[00:04:43] Speaker 06:
of an underlying... Your position is that if you take the imaging layer and you put the mask on it and you irradiate it and then a whole bunch of stuff melts away in one version or hardens in the other version that the immediate result of that is the Swiss cheese of an imaging layer and that can be the patterned layer but you want patterned layer to cover that as well as another layer that

[00:05:11] Speaker 06:
You use that to create another piece of Swiss cheese out of it, right?

[00:05:16] Speaker 02:
That is correct.

[00:05:18] Speaker 06:
But patterning applies only to the first piece of Swiss cheese, does it not?

[00:05:23] Speaker 02:
So the full limitation is patterning the imaging layer, and I think this is where the confusion is on the agreed construction and some of the positions.

[00:05:31] Speaker 02:
Your honor is right.

[00:05:32] Speaker 02:
Patterning the imaging layer, the parties have agreed that's the first piece of Swiss cheese, but that's not the end of that limitation.

[00:05:40] Speaker 02:
The remaining piece of the limitation is to form a patterned layer.

[00:05:45] Speaker 02:
Right.

[00:05:45] Speaker 02:
That's why I asked.

[00:05:46] Speaker 06:
But yours is not the immediate result of the irradiation.

[00:05:53] Speaker 06:
You want to take the first piece of Swiss cheese.

[00:05:58] Speaker 06:
I'm sorry about the metaphor, but it seems useful to me.

[00:06:00] Speaker 06:
Tell me if it's wrong.

[00:06:02] Speaker 06:
And create another piece.

[00:06:03] Speaker 06:
And that other piece you want to be also covered by the term patterned layer.

[00:06:09] Speaker 06:
at each of the first stages and the second stages.

[00:06:12] Speaker 02:
That is correct.

[00:06:13] Speaker 02:
And the specification, well first the claim language supports that by mentioning patterning the imaging layer to form a patterned layer.

[00:06:23] Speaker 02:
The district court effectively wrote to form as an active verb forms, but the claims don't say that.

[00:06:30] Speaker 02:
The claims do not say patterning an imaging layer wherein the patterning forms the patterned layer.

[00:06:37] Speaker 02:
Instead it says

[00:06:38] Speaker 02:
to form.

[00:06:39] Speaker 02:
I think the analogy we used in our brief was reading case law to form a legal opinion.

[00:06:45] Speaker 02:
Well, that is a broader and more encompassing phrase than my reading case law forms my legal opinion.

[00:06:53] Speaker 02:
That's more tight and more exclusive between the two, the relationship of the two elements.

[00:06:59] Speaker 06:
So there are two places in the spec, one in column one, I think, in the description of

[00:07:05] Speaker 06:
prior art and then one, if I remember right, toward the end, that expressly refer to, and again I'm going to use my Swiss cheese metaphor, after you've made the first slice, you use familiar etching, what, chemical or other techniques to create a second, to replicate the pattern of the first piece of Swiss cheese in another.

[00:07:31] Speaker 06:
Why would we not take

[00:07:35] Speaker 06:
those two passages as indicative of essentially what is not part of the claims, namely some reference to steps past the first irradiation patterning?

[00:07:51] Speaker 02:
Sure.

[00:07:51] Speaker 02:
I think there's two reasons for that.

[00:07:54] Speaker 02:
One is that this patent is about improving typical lithography processes.

[00:07:59] Speaker 02:
And the background that your honor mentioned talks about in a typical lithography process,

[00:08:04] Speaker 02:
There's the first piece of Swiss cheese.

[00:08:07] Speaker 02:
And then that pattern is replicated underneath.

[00:08:10] Speaker 02:
And the patent uses the term an underlying layer to be patterned.

[00:08:14] Speaker 02:
It actually uses the same words as the claim as patterning.

[00:08:17] Speaker 02:
And then in the second piece, which is in column 12, mentions that, again, the underlying layer can be patterned using that piece of Swiss cheese.

[00:08:30] Speaker 02:
And there's no reason to exclude

[00:08:32] Speaker 02:
and the typical lithography processes of doing the irradiation and development and then etching and then doing that effectively a second time.

[00:08:42] Speaker 02:
This patent is about what's called double exposure lithography and can use that typical process essentially twice.

[00:08:50] Speaker 02:
So I don't read that, the background portion or the last portion in column 12 as any type of distinguishing statements about

[00:09:02] Speaker 02:
Well, here's what the prior art is, or here's what our invention is not, and here's what our invention is.

[00:09:06] Speaker 02:
There's no language indicating that the present invention is limited to the imaging layer and the pattern layer.

[00:09:16] Speaker 05:
I'm sorry, I don't really... I have a grasp on this technology, but I can't claim to understand it completely.

[00:09:23] Speaker 05:
Is it your position that the first pattern layer can be formed by one process,

[00:09:31] Speaker 05:
And the second patterning layer can be formed by an entirely different process.

[00:09:36] Speaker 02:
Well, it both says patterning.

[00:09:38] Speaker 02:
And patterning, the parties have agreed, is exposure and development.

[00:09:43] Speaker 02:
And so in both steps, exposure and development has to happen.

[00:09:48] Speaker 02:
Really the question is, is that the end of the claim limitation, or can there be additional steps to create a patterned layer that lies underneath the layer that's been exposed?

[00:10:00] Speaker 02:
and develop.

[00:10:01] Speaker 02:
And so exposure and development has to happen for both the first imaging layer and the second one.

[00:10:07] Speaker 02:
The question then for each of them is, that's not the end of the claim limitation.

[00:10:10] Speaker 02:
It says to form a patterned layer.

[00:10:13] Speaker 02:
And the specification indicates that that can include things like etching.

[00:10:17] Speaker 05:
I don't think you answered my question.

[00:10:19] Speaker 02:
Sure, Your Honor.

[00:10:20] Speaker 05:
I mean, the claim, I'm looking at claim one.

[00:10:23] Speaker 05:
I think its representative has a part talking about forming, using a first imaging layer

[00:10:30] Speaker 05:
with the first pattern to form a first pattern layer.

[00:10:33] Speaker 05:
Then it's got the stabilizing and stuff like that.

[00:10:35] Speaker 05:
And then it says pattering a second imaging layer with a second pattern to form a second pattern layer.

[00:10:42] Speaker 05:
Are those two parts using the same process in your view, or can they use one being the first part where you, I guess, run the light through the mask and get a pattern?

[00:10:56] Speaker 05:
And then the second one can be when you use that pattern

[00:11:00] Speaker 05:
to etch.

[00:11:02] Speaker 02:
So they can be different.

[00:11:04] Speaker 02:
I tried to explain.

[00:11:05] Speaker 05:
Let me maybe try again.

[00:11:10] Speaker 05:
I'm trying to figure out whether the first and second pattern have to be formed by the same process, or you think they can be formed by a different process.

[00:11:18] Speaker 05:
Because I know it goes on, and then it says the second and the first are combined to form a single pattern layer.

[00:11:25] Speaker 05:
I mean, that's where it seems to be talking about a different kind of technical step.

[00:11:31] Speaker 05:
The first two seem to be parallel steps.

[00:11:33] Speaker 02:
They are.

[00:11:34] Speaker 02:
They both reference patterning the imaging layer to form the patterned layer.

[00:11:38] Speaker 02:
And the question is, the two form the patterned layer.

[00:11:41] Speaker 02:
Both require under the agreed construction of patterning and imaging layer exposure and development.

[00:11:47] Speaker 02:
So for that first one, there has to be exposure and development.

[00:11:50] Speaker 02:
For the second one, there has to be exposure and development.

[00:11:52] Speaker 02:
The question is, is that where the claims closed when it mentions to form a patterned layer?

[00:11:58] Speaker 02:
And to form could be exposure and development in addition to etching for the first pattern or not in addition to etching.

[00:12:05] Speaker 02:
So that's how they could be different.

[00:12:07] Speaker 02:
But they both, as a necessary input, have to have exposure and development of the imaging layer under the agreed construction.

[00:12:21] Speaker 02:
And the specification, I think, supports that when mentioning that you have, you know, the words of the claim are an imaging layer and a patterned layer.

[00:12:29] Speaker 02:
It's not a patterned imaging layer, as the defendant suggests.

[00:12:32] Speaker 02:
It's not a patterned photoresist layer.

[00:12:34] Speaker 02:
And I believe the portion of the specification that Judge Torano mentioned in column one mentions you have an imaging layer, the Swiss cheese is what's called a patterned photoresist layer, and then there's the underlying layer to be patterned.

[00:12:47] Speaker 02:
And our view is

[00:12:48] Speaker 02:
that any of the layers that contain that pattern, whether it's the pattern photo resist layer or the underlying layer that's etched, can constitute a patterned layer because the claim uses the term to form and the specification doesn't have any... Okay, wait, I think you're finally getting to what I was thinking about.

[00:13:06] Speaker 05:
So you think that underlying layer that's etched can be the second pattern layer?

[00:13:11] Speaker 00:
Yes.

[00:13:12] Speaker 05:
Instead of being the final step where the two pattern layers are

[00:13:18] Speaker 05:
or a single pattern layer?

[00:13:20] Speaker 02:
Well, there still has to be a single patterned layer at some point in the equation, which is where the two are combined.

[00:13:28] Speaker 04:
And this is coming to us as a matter of claim construction or as a matter of infringement or non-infringement?

[00:13:34] Speaker 02:
It's a matter of claim construction, Your Honor.

[00:13:37] Speaker 02:
So the district court held a Markman hearing, resolved this issue in a Markman order.

[00:13:42] Speaker 02:
There was no proceedings on summary judgment, no evidence.

[00:13:46] Speaker 02:
uh... presented to the district court with after the claim instruction came down the parties entered into a stipulated judgment so we don't have anything the record that tells us intuitively why under this construction the accused products do not infringe we we do in the stipulation so on uh... in the stipulated judgment which is on j thirty nine paragraph five specifically what the defendants

[00:14:16] Speaker 02:
do is they use an intermediate layer.

[00:14:18] Speaker 02:
So there's the initial imaging layer.

[00:14:21] Speaker 02:
It's irradiated, developed, and then it ends up being etched into something called a hard mask.

[00:14:28] Speaker 02:
And that's what we pointed to as the first patterned layer.

[00:14:31] Speaker 02:
And because the court's construction excluded that, that's why we're here on appeal.

[00:14:36] Speaker 02:
And that's what paragraph 5 mentions, that what DSS accused was

[00:14:41] Speaker 02:
a layer underline that first imaging layer.

[00:14:44] Speaker 06:
And you're into your rebuttal time, but let me just ask you one more question.

[00:14:47] Speaker 06:
Do you think that CLAIM-1 in particular covers both positive tone and negative tone imaging layers?

[00:14:57] Speaker 02:
I do.

[00:14:57] Speaker 02:
So the patent discusses positive tone and negative tone.

[00:15:03] Speaker 02:
CLAIM-1 is agnostic as to which one is used.

[00:15:06] Speaker 02:
So I believe it covers both.

[00:15:08] Speaker 06:
Even though, as I read it,

[00:15:11] Speaker 06:
the claim construction of the term patterning seems to limit it to positive tone?

[00:15:18] Speaker 06:
Am I wrong about that?

[00:15:21] Speaker 02:
And this is the issue about the portions of the imaging layer that lay outside of the pattern, or what's dissolved?

[00:15:30] Speaker 06:
Yeah.

[00:15:31] Speaker 06:
I mean, doesn't that restrict it to positive tone?

[00:15:37] Speaker 02:
believe so.

[00:15:38] Speaker 02:
So the positive flavor, negative flavor has to do with what's exposed.

[00:15:42] Speaker 02:
So if the pattern is my hand, positive tone is that the exposed portion dissolves.

[00:15:49] Speaker 02:
So the pattern would look like my hand coming up.

[00:15:51] Speaker 02:
And negative tone would be that the unexposed portion dissolves, which would be my hand coming down.

[00:15:57] Speaker 02:
There's nothing about exposed or unexposed portions in the construction.

[00:16:01] Speaker 02:
There's mention of stuff, of the material that lays outside of the pattern.

[00:16:05] Speaker 02:
But there isn't an indication of what pieces have been exposed to light and which pieces haven't been exposed to light.

[00:16:11] Speaker 02:
Does that make sense?

[00:16:12] Speaker 03:
Sure.

[00:16:13] Speaker 02:
OK.

[00:16:13] Speaker 02:
Thank you.

[00:16:13] Speaker 02:
Thank you, Your Honor.

[00:16:19] Speaker 06:
We'll restore two minutes of your rebuttal.

[00:16:30] Speaker 00:
Good morning, Your Honors.

[00:16:31] Speaker 00:
I'm Jared Bobrow.

[00:16:32] Speaker 00:
I represent the Samsung Appellees.

[00:16:36] Speaker 00:
I'll be addressing the majority of the claim construction issues that have arisen here.

[00:16:41] Speaker 00:
Mr. Cunning, counsel for the TSMC Appellees, will be addressing a couple of issues.

[00:16:47] Speaker 00:
One is the claim differentiation issue.

[00:16:50] Speaker 00:
that is part of that claim construction dispute, and the second has to do with the procedural deficiencies in DSS's appeal.

[00:16:59] Speaker 06:
As is often the case, I'm going to ask you about something you just said that your colleague is going to talk about because it's more on my mind, so I hope you're prepared.

[00:17:12] Speaker 06:
The claim differentiation argument.

[00:17:14] Speaker 06:
I understand the

[00:17:17] Speaker 06:
way of saying that claims four and five are not redundant because they're positive tone.

[00:17:26] Speaker 06:
But I don't understand that if, contrary to what Mr. Hurt just said, if one read claim one as limited itself to positive tone because of the way the undisputed claim construction of patterning works, which seems to require

[00:17:46] Speaker 06:
the dissolution of the irradiated parts, not the hardening of the irradiated parts.

[00:17:53] Speaker 00:
So I think, Your Honor, with respect to the agreed upon construction, both parties agree, and you heard counsel for DSS state, that it is agnostic as to whether it is positive or negative tone.

[00:18:05] Speaker 06:
Explain how that's possible given, and I could just be confused, but how is that possible given the definition, the agreed claim construction of the term patterning?

[00:18:15] Speaker 00:
Because I think that it's a function of what the pattern is.

[00:18:19] Speaker 00:
When you have a pattern with hard places or glass or what have you, and then open spaces where the radiation can get through, in one case where you have the positive tone and the radiation come down and irradiates that, it softens it and dissolves it.

[00:18:38] Speaker 00:
The negative is simply the reverse of that.

[00:18:41] Speaker 00:
So when the Greek claim construction talks about laying outside of the pattern, that's simply talking about whether you're dealing with positive or negative as to what is outside of the pattern.

[00:18:52] Speaker 00:
So the tone affects whether or not it is the parts that are subjected to the radiation that are outside the pattern or whether it's the parts that are not subjected to radiation that are outside the pattern.

[00:19:03] Speaker 00:
So both parties in coming up with this construction for the district court were endeavoring to provide a construction that would cover both situations as to tone and then claims four and five covered the specific situation where it is the exposure to the radiation.

[00:19:20] Speaker 00:
And that is specifically a reference to a positive tone system, not to the negative tone system.

[00:19:26] Speaker 06:
And there are no specific claims referring to essentially counterparts to four and five, but

[00:19:32] Speaker 06:
referring to the negative tone once.

[00:19:33] Speaker 00:
No, I don't believe so, Your Honor.

[00:19:36] Speaker 00:
But the claims four and five in terms of the exposing, that is a reference to positive tone.

[00:19:43] Speaker 00:
So as Mr. Hurt for counsel for DSS acknowledged, really the only issue on appeal has to do with the district court's construction of the claim term patterned layer.

[00:19:54] Speaker 00:
That is the only challenge on appeal.

[00:19:56] Speaker 00:
And we submit that the district court's judgment should be affirmed of non-infringement because there was simply no error in the district court's construction of patterned layer.

[00:20:06] Speaker 00:
That is because number one, the plain language of the claim, the natural reading of the claim language supports that construction.

[00:20:14] Speaker 00:
Number two, the agreed upon construction of patterning the image layer supports that construction.

[00:20:21] Speaker 00:
The specification fully supports the construction.

[00:20:25] Speaker 04:
And finally, statements that DSS made during... Why does the natural language of the claim support your position necessarily, as you say?

[00:20:37] Speaker 00:
It necessarily does, Your Honor, because of the phrasing and because of the natural... Walk me through, walk me through.

[00:20:43] Speaker 04:
Are you talking about patterning the first imaging layer?

[00:20:46] Speaker 04:
Yes, so that phrase... According to the first pattern to form a pattern, first pattern layer.

[00:20:53] Speaker 04:
Well, to form it where?

[00:20:55] Speaker 00:
That's right.

[00:20:57] Speaker 04:
Why does the language limit where the first pattern layer having a first feature is formed?

[00:21:05] Speaker 00:
Because that phrase, for several reasons.

[00:21:07] Speaker 00:
First, you have a patterning step, patterning the imaging layer.

[00:21:12] Speaker 00:
Patterning is essentially the present participle.

[00:21:15] Speaker 00:
It is the active verb.

[00:21:16] Speaker 00:
It is what is being done.

[00:21:18] Speaker 00:
What is it being done to, to an object?

[00:21:20] Speaker 00:
the object is the imaging layer.

[00:21:23] Speaker 00:
So I am doing something presently to the imaging layer.

[00:21:27] Speaker 00:
To form is simply the infinitive, which is describing the result of the patterning on the object, namely the imaging layer.

[00:21:34] Speaker 04:
Aren't you, isn't in the background of your rationale here the agreed upon claim construction of patterning?

[00:21:42] Speaker 04:
I think certainly... You're carrying that into the language with regard to what it is, where you're forming the first pattern layer.

[00:21:51] Speaker 00:
I think, Your Honor, that patterning the imaging layer to form the patterned layer, just the natural reading of that and the natural language of it supports it.

[00:22:00] Speaker 04:
But certainly, the agreed construction makes it abundantly clear because the part of the- Doesn't the accused device pattern a first image layer on something other than the structure you're talking about?

[00:22:15] Speaker 00:
No, it doesn't.

[00:22:15] Speaker 00:
Because the agreed construction of patterning

[00:22:18] Speaker 00:
is that you irradiate an imaging layer, and then you develop it.

[00:22:23] Speaker 04:
I know what the agreed construction of patterning is, just seeing to me that the natural reading of the language itself before you decide what patterning a first image means didn't necessarily support what you were saying.

[00:22:35] Speaker 00:
But it is, again, the patterning of the imaging layer.

[00:22:39] Speaker 00:
Because what the patent is describing is a process where you pattern the imaging layer, that forms the patterned layer, you stabilize it, you form a second

[00:22:49] Speaker 00:
patterned layer, that then is consolidated into a single patterned layer.

[00:22:54] Speaker 00:
And then after that, what's done is you use that, if you wish, it's not claimed, but you use that to then etch something in an underlying layer.

[00:23:04] Speaker 00:
And the specification, your honor, is very clear that the patterned layers are the portions of the imaging layers that remain after patterning.

[00:23:14] Speaker 00:
The exclusive use of that phrase, patterned layer,

[00:23:17] Speaker 00:
in the specification is used solely and exclusively to describe the imaging layer after patterning.

[00:23:24] Speaker 05:
Is the imaging layer the photoresist material?

[00:23:26] Speaker 00:
So it is.

[00:23:28] Speaker 00:
One example, Your Honor, is photoresist.

[00:23:30] Speaker 00:
That can be positive or negative tone.

[00:23:32] Speaker 00:
But there are, in the specification, described additional materials besides photoresist.

[00:23:36] Speaker 00:
For example, polyimide can be a kind of radiation-sensitive material.

[00:23:42] Speaker 00:
The parties agreed below to a stipulated meaning of the imaging layer

[00:23:48] Speaker 00:
And it's essentially a first imaging layer is a first layer of photoresist or other radiation sensitive material.

[00:23:54] Speaker 00:
So it can be other things besides photoresist.

[00:23:57] Speaker 00:
Photoresist being a common one, but not the only one.

[00:23:59] Speaker 00:
And that's why claims four and five are not redundant of claims two and three.

[00:24:03] Speaker 00:
That is one of the reasons.

[00:24:05] Speaker 00:
That is certainly one of the reasons that it's not.

[00:24:08] Speaker 00:
But you have in claims four and five

[00:24:10] Speaker 00:
Because claims four and five depend on one, you have claim one agnostic on positive or negative tone, and then claims four and five say, ah, we'll select the positive tone version.

[00:24:21] Speaker 00:
Two and three say including photoresist, including positive photoresist, which again separates it from claims four and five because you could have positive polyimide, you could have positive photoresist, you could have other positive radiation sensitive material.

[00:24:37] Speaker 00:
So with respect to the specification, again, driving the meaning here, as I alluded to, not only is the phrase patterned layer exclusively used to describe the imaging layer after patterning, but the specification goes on to say that the patterned layer, when it's describing how it's formed, what it describes in terms of how it's formed is it says that you put it into radiation and you develop it, and that that is what forms

[00:25:06] Speaker 00:
patterned layer.

[00:25:07] Speaker 00:
And that's a consistent usage in the specification to say that it is the radiation and development of the imaging layer that forms the patterned layer.

[00:25:15] Speaker 00:
And with respect to the agreed upon construction, where the agreed upon construction was essentially very consistent with what is in the specification, saying that you essentially have your imaging layer, you then expose it to radiation, you then develop it in a developer

[00:25:31] Speaker 00:
And the parties agreed, and it's not challenged on appeal, that there's an additional clause there for the construction.

[00:25:37] Speaker 00:
When you do those things, you quote, thereby form the patterned portions and spaces of the imaging layer.

[00:25:45] Speaker 00:
So what the parties agreed to was that the patterning of the imaging layer is driving, is immediately creating the patterned layer.

[00:25:53] Speaker 00:
The district court found that that phrase, thereby forming the patterned portions and spaces, that that is a reference to the claimed

[00:26:00] Speaker 00:
patterned layer.

[00:26:02] Speaker 00:
So you have this immediate creation of that patterned layer by development and radiation of the imaging layer.

[00:26:12] Speaker 00:
And that was the agreed upon construction.

[00:26:14] Speaker 00:
And with that, Your Honor, I would turn it over to Mr. Cunning, unless there are further questions from me.

[00:26:20] Speaker 00:
Thank you.

[00:26:32] Speaker 01:
Morning, Your Honors.

[00:26:33] Speaker 01:
Scott Cunning, TSMC Appellees, and since Mr. Bobrow already addressed the claim differentiation argument, unless the Court has any other questions on that issue, I'm going to jump right into the procedural defects with DSS's appeal.

[00:26:46] Speaker 01:
There are two failures on DSS's part that prevent it from now challenging the District Court's construction below.

[00:26:54] Speaker 01:
First, DSS agreed to the District Court's construction.

[00:26:59] Speaker 01:
It did raise an issue regarding how that construction would be applied, but it did not challenge the district court's construction.

[00:27:06] Speaker 01:
It never asked the district court to modify its construction, and it at no point urged the construction it had originally sought in its briefing below.

[00:27:15] Speaker 01:
This is no different than what happened in the Solvay case.

[00:27:17] Speaker 04:
So the caveat is not a request for a different instruction?

[00:27:21] Speaker 01:
No.

[00:27:23] Speaker 01:
asked an issue about clarification and the court invited argument on that issue.

[00:27:28] Speaker 01:
But throughout its argument, DSS repeatedly stated that it agreed to the court's construction and that in its view, the district court's construction adequately captured what it was arguing on the application of the construction.

[00:27:40] Speaker 01:
That's exactly what happened in the Solvay case.

[00:27:42] Speaker 04:
What's the caveat then?

[00:27:44] Speaker 01:
DSS wanted to know if the construction that the district court had issued could be read on an underlying layer.

[00:27:52] Speaker 01:
that the argument they raised was one of application, not one of claim construction.

[00:27:56] Speaker 01:
And the district court made clear that it could not.

[00:28:01] Speaker 06:
The district court and its claim construction... And if this case had proceeded, you don't think that this would have presented, teed up an 02 micro issue where it was perfectly clear that there was no dispute about the nature of the accused products and the only dispute was about

[00:28:19] Speaker 06:
the scope of the claims, whether you call it interpreting certain words or not?

[00:28:26] Speaker 01:
We think the case is not an O2 micro issue, Your Honor, because we're not disputing that there was a dispute below about how the construction would be applied.

[00:28:35] Speaker 01:
O2 micro did not present the issue of whether one party had consented to the district court's construction.

[00:28:40] Speaker 01:
That issue is expressly presented in the Solvay case.

[00:28:44] Speaker 04:
Well, consented to, but.

[00:28:45] Speaker 04:
I consent to, but.

[00:28:48] Speaker 01:
I understand your honest question.

[00:28:49] Speaker 04:
But if you're going to apply your claim construction as X, then I don't agree with it.

[00:28:54] Speaker 04:
Isn't that what the caveat is?

[00:28:56] Speaker 01:
Yes, Your Honor.

[00:28:57] Speaker 01:
And that is exactly what happened in Solvay.

[00:28:59] Speaker 04:
There, the parties... Do you think there's clear daylight between this case and O2 Micro?

[00:29:04] Speaker 01:
Yes.

[00:29:05] Speaker 01:
In the O2 Micro case, there was no issue of whether a party had consented.

[00:29:10] Speaker 01:
There, the term at issue in O2 Micro was the only if term.

[00:29:14] Speaker 01:
The parties repeatedly disagreed about how only if should be construed.

[00:29:18] Speaker 01:
The district court declined to construe it.

[00:29:21] Speaker 01:
The difference is the Solvay case, where the parties had a dispute over the term isolating.

[00:29:26] Speaker 01:
The district court invited briefing on the issue.

[00:29:29] Speaker 01:
Solvay was arguing that isolating should mean permanently isolating.

[00:29:32] Speaker 01:
But in its briefing, it expressly stated that it agreed with the district court's construction and then submitted five additional pages of briefing arguing about how that construction should be applied.

[00:29:42] Speaker 01:
This court said that because Solvay had agreed to the construction, had not asked the district court to change its construction, and had never sought the permanently isolating construction that it was now advocating on appeal, it could not challenge the district court's construction on appeal.

[00:29:59] Speaker 01:
But the second failure is it's not just DSS's consenting to the construction below.

[00:30:04] Speaker 01:
Even on appeal, DSS has not proposed an alternative construction to this court.

[00:30:09] Speaker 01:
Their argument is about what the construction should cover.

[00:30:12] Speaker 01:
and what it should be applied to.

[00:30:13] Speaker 01:
That is the second step.

[00:30:15] Speaker 04:
They're making an argument here that they're agreed upon construction that is trying to nail them what is limited to one step in the procedure.

[00:30:26] Speaker 04:
Yes, but they're saying, well, when we agreed on patterning the first and second image layer, what we meant was, oh, that's just that one step.

[00:30:34] Speaker 04:
We didn't mean that to apply the entirety of the application of the claim.

[00:30:39] Speaker 04:
I mean, they're making, to me, their argument here is a very nuanced argument of a caveat.

[00:30:47] Speaker 04:
I don't know whether they presented to the district court in full bloom the nuanced argument they've made here, but it seemed to me that they were trying to put a stake in the ground at the district court saying, we're buying your claim construction up to a point.

[00:31:03] Speaker 01:
And I understand that, Your Honor, and the distinction is

[00:31:08] Speaker 01:
that at no point did they ask the district court to modify its construction or to change the construction.

[00:31:13] Speaker 01:
That is what the Solvay case and the Fingen case state.

[00:31:16] Speaker 04:
We have a case that says you must make a specific request for a specific modification in order to preserve a claim construction argument on appeal.

[00:31:24] Speaker 01:
The closest cases are the Solvay case in our brief and the Fingen case in our brief.

[00:31:29] Speaker 01:
In Fingen, the court stated that the complaining party must present an alternative construction on appeal and that is the second aspect

[00:31:35] Speaker 01:
of DSS Australia.

[00:31:38] Speaker 04:
It seems to me they are making a nuanced distinction here on appeal.

[00:31:43] Speaker 01:
I think that they're making an argument about application of the construction.

[00:31:47] Speaker 01:
In their opening brief, DSS presents the issue as whether or not the district court's claim construction excludes an accused instrumentality and asks this court to give an instruction that would allow them to capture an underlying layer.

[00:32:00] Speaker 01:
But the court, that's application.

[00:32:03] Speaker 01:
That goes back to Markman.

[00:32:05] Speaker 01:
that we first construe claims, then we talk about what claims cover.

[00:32:09] Speaker 01:
DSS has never presented this court with a clear formulation of what it believes the claim construction should be.

[00:32:15] Speaker 06:
I guess I took the claim construction that they're offering to be the insertion of the words immediately or indirectly.

[00:32:22] Speaker 06:
Form immediately or indirectly.

[00:32:25] Speaker 01:
I searched through their briefing to try to identify a place where they- Did you have any doubt about that's what they meant?

[00:32:34] Speaker 01:
And several times they describe the construction as they want it to cover an underlying layer.

[00:32:40] Speaker 01:
They state in places that it should refer to a patterned imaging layer, the same pattern in the imaging layer, the same pattern in the mask.

[00:32:48] Speaker 01:
I'm not quite sure what exactly the construction is.

[00:32:52] Speaker 01:
And if BSS had presented this court with a formulation of its construction, it's not entirely an academic exercise.

[00:32:58] Speaker 01:
We would then be able to talk about how that construction fits within the specification and the intrinsic record.

[00:33:06] Speaker 01:
Unless the court has any additional questions.

[00:33:09] Speaker 01:
Thank you.

[00:33:09] Speaker 01:
Thank you for your argument.

[00:33:22] Speaker 02:
Very, very briefly, Your Honor.

[00:33:24] Speaker 02:
Mr. Barrow made a number of statements about the specification indicates the specification describes its own dispute that the specification lacks any disclaimer

[00:33:35] Speaker 02:
present invention language distinguishing the prior or anything that would narrow the claims to the embodiment and the specification.

[00:33:42] Speaker 02:
Notably, in their brief, they mentioned that figure one was the claimed invention.

[00:33:48] Speaker 02:
Figure one is just an embodiment.

[00:33:50] Speaker 02:
The issue is what does two form mean?

[00:33:52] Speaker 02:
The construction of patterning and imaging layer that we agreed to below is only patterning and imaging layer.

[00:33:59] Speaker 02:
And everyone agrees that that phrase

[00:34:02] Speaker 02:
that upon development there are patterned portions and spaces of the imaging layer.

[00:34:08] Speaker 06:
Does the spec ever use the word form as a verb or otherwise to refer to something other than the immediate result of the forming activity?

[00:34:22] Speaker 06:
That's probably imprecise, of the patterning activity.

[00:34:30] Speaker 02:
In the preferred embodiment, it uses the word to form as the same immediate layer.

[00:34:38] Speaker 02:
It refers to how features may be formed relatively closer to one another, and that's

[00:34:58] Speaker 02:
forward-looking, so the ultimate features in the semiconductor are the circuit components and the pattern.

[00:35:04] Speaker 06:
I guess I just wanted to bring you back to the passages that to me are most significant, the column 1 and the column 12, where when there is talk about creating this pattern in a layer underlying the irradiated layer,

[00:35:26] Speaker 06:
different terms are used, the lithography terms, the etching terms.

[00:35:31] Speaker 02:
That is true.

[00:35:32] Speaker 02:
The word, I think, is maybe replicated.

[00:35:34] Speaker 06:
Replicated.

[00:35:35] Speaker 02:
And that's in both column 12 and I believe also column 1, maybe replicated.

[00:35:41] Speaker 04:
Your case hinges on column 12, those two references, and on your statement that there's nothing in the specification that disclaims what you call the second flavor.

[00:35:55] Speaker 04:
I was taken by the honesty of your brief at the very end in page 25, where you say, there's nothing in the spec other than those two points that support my argument.

[00:36:05] Speaker 02:
That is correct.

[00:36:06] Speaker 04:
You get an A plus on candor.

[00:36:09] Speaker 02:
Thank you, Your Honor.

[00:36:11] Speaker 02:
As I read the specification, there's really two kind of ways to slice it.

[00:36:14] Speaker 02:
Either in the way that we agreed to pattern an imaging layer to form a patterned layer, those two portions of the spec and the words to form

[00:36:24] Speaker 02:
indicate that that limitation is broader.

[00:36:26] Speaker 02:
But then as Judge Clevinger mentioned, on first blush without the agreed construction, patterning and imaging layer two form a patterned layer.

[00:36:35] Speaker 02:
Both of those portions of the specification in column one and column 12 refer to that underlying layer as one to be patterned.

[00:36:43] Speaker 02:
It says it is patterned via etching, and it uses the same words as the claims.

[00:36:47] Speaker 02:
So if this is some type of gotcha on us agreeing to that particular construction,

[00:36:52] Speaker 02:
then I think that's, you know, we are what we are.

[00:36:56] Speaker 04:
Patentee wasn't exactly using a megaphone to broadcast to the public the breadth of the claim as you asserted here today.

[00:37:05] Speaker 02:
And very briefly, I know I'm going to ask very briefly on this waiver issue.

[00:37:11] Speaker 02:
This issue, the scope of the claims is as clear as day what the parties are disputing.

[00:37:16] Speaker 02:
Whether the imaging layer material is limited,

[00:37:19] Speaker 02:
pattern layer is limited to that imaging layer material or can have a pattern underneath.

[00:37:23] Speaker 02:
The court resolved that in a page claim construction order.

[00:37:27] Speaker 02:
And the defendant's argument is that because DSS agreed to the words of the court's proposed construction, which didn't answer the issue, because the court took half of ours and half of theirs and put it together.

[00:37:38] Speaker 02:
So it took ours a layer containing the portions and spaces of the imaging layer and superimposed those, that somehow DSS's way of that argument on appeal

[00:37:48] Speaker 02:
We cited O2 micro in the other cases that simply say that if the district court's on notice what your claim construction position is, you don't even have to object to the jury instruction to get up on appeal and make those arguments.

[00:37:59] Speaker 06:
Did you offer a specific formulation of an alternative claim construction that you would prefer that district court to have adopted?

[00:38:08] Speaker 02:
So we're kind of in a tight bind on this, because DSS agreed to the words of the court's claim construction.

[00:38:17] Speaker 02:
then the court sort of issued a construction of a construction in the claim construction order to avoid the O2 micro problem, I think that Your Honor mentioned.

[00:38:27] Speaker 02:
We initially had proposed a layer containing the pattern and the imaging layer.

[00:38:32] Speaker 02:
DSS, of course, can live with that construction, but can also live with the actual words that the district court used in the claim construction order, but simply overruling that the court's resolution is a matter of claim scope.

[00:38:45] Speaker 02:
This wasn't a matter of

[00:38:47] Speaker 02:
application or summary judgment or facts, but as a matter of a scope of the claims, that the claims are limited to the layer material.

[00:38:55] Speaker 06:
But the problem is, as you know, is that the term scope is a word that almost perfectly straddles a line, if you want to even call it, a line between claim construction and application.

[00:39:08] Speaker 06:
And we get cases all of the time in which there's agreed upon words as the claim construction

[00:39:14] Speaker 06:
And because they're completely agreed upon and nothing else, the appellate system has no choice but to say, well, if there's dispute among the experts about how those words can apply, it must be a fact question.

[00:39:29] Speaker 06:
But did you go beyond saying these words of your claim construction, district court, should be altered to clarify, to use a phrase like the one I

[00:39:41] Speaker 06:
throughout there, you know, immediately or indirectly or something as a substitute for, as a clarification of the term to form.

[00:39:49] Speaker 02:
Sure.

[00:39:49] Speaker 02:
So we did it.

[00:39:51] Speaker 02:
We have the claim construction hearing transcript.

[00:39:55] Speaker 02:
And as Judge Clevinger mentioned, DSS said, and it was actually me, so I know what it was, said we agree with the caveat that it essentially in substance is our construction.

[00:40:06] Speaker 02:
If the court disagrees with that, I can present argument to address it.

[00:40:10] Speaker 02:
And Judge Payne

[00:40:11] Speaker 02:
Said, well, how about I ask Mr. Barbro if he disputes that?

[00:40:15] Speaker 02:
Mr. Barbro said, yes, there is a claim scope dispute.

[00:40:18] Speaker 02:
And we argued that dispute.

[00:40:21] Speaker 02:
And so in that portion, I believe we had preserved our prior construction that we had proposed, although we could live with the court's proposed construction.

[00:40:34] Speaker 02:
So what happens in these proceedings is the district court judge gives you a list of preliminary constructions.

[00:40:38] Speaker 02:
You look at them and say, OK, are we going to get to trial on these or not?

[00:40:42] Speaker 02:
And we looked at that one and said, we can get to trial on that so long as.

[00:40:46] Speaker 02:
And we raised that claim scope dispute there.

[00:40:50] Speaker 02:
And under the defendant's view, we should have sat on it, had it come up in summary judgment and expert reports, and burned all of that time before we could have preserved it on appeal.

[00:41:01] Speaker 02:
But we resolved it, and the court resolved it, as a matter of claim construction.

[00:41:06] Speaker 02:
If there were an issue about application of the scope of the claims, there'd be Rule 56 problems with the court's order.

[00:41:12] Speaker 02:
There was no notice of that, that our infringement case was getting resolved on a fact issue.

[00:41:17] Speaker 02:
There would be seven amendment issues, and of course that isn't what happened.

[00:41:21] Speaker 02:
The court resolved it as a matter of plaintiffs' question.

[00:41:24] Speaker 02:
Unless the court has any further questions, thank you.

[00:41:27] Speaker 06:
Thank you, Mr. Hart.

[00:41:27] Speaker 06:
Thank you.

[00:41:28] Speaker 02:
Thank you to all counsel.

[00:41:30] Speaker 06:
The case is submitted.