[00:00:00] Speaker 00:
Before we start the clock today, I want to talk about the confidentiality markings in these briefs, which seem to be in significant part inappropriate because they're marking legal argument as confidential.

[00:00:18] Speaker 00:
If you look at the yellow brief, for example, at page two, it says that

[00:00:27] Speaker 00:
demonstrates that G's methods perform trigonometric analysis, blah, blah, blah.

[00:00:32] Speaker 00:
And then it goes on and on.

[00:00:34] Speaker 00:
These legal arguments are marked as confidential.

[00:00:38] Speaker 00:
We've held that that's sanctionable conduct.

[00:00:41] Speaker 00:
Would you both please address the question of what to do about this?

[00:00:52] Speaker 04:
You're on Charles Shiel for Mr. Alexi.

[00:00:57] Speaker 04:
We were only marking the information that DE claims is confidential, so we're not marking any Alexi information confidential.

[00:01:05] Speaker 00:
Legal argument is not confidential.

[00:01:07] Speaker 00:
These briefs have marked extensive amounts of legal argument as confidential.

[00:01:13] Speaker 04:
And the way that this occurred is that we presented the brief to General Electric's Council and asked them to inform us what they believed was confidential, and we

[00:01:25] Speaker 04:
We just respected their request to mark those pages confidential.

[00:01:31] Speaker 00:
Mr. Rainey?

[00:01:34] Speaker 02:
Your Honor, we're not going to take the position legal arguments are confidential information.

[00:01:37] Speaker 02:
So perhaps there's been a disconnect between the parties on this issue.

[00:01:41] Speaker 02:
We can revisit that.

[00:01:43] Speaker 00:
Did you tell them to mark the legal argument as confidential?

[00:01:46] Speaker 02:
I don't believe I or anyone on our team did.

[00:01:49] Speaker 02:
But if that is what came out of this exchange of briefs, then

[00:01:54] Speaker 02:
That was not the intention.

[00:01:57] Speaker 00:
Well, why don't you consult with each other and each side file new briefs that deletes these confidentiality markings.

[00:02:09] Speaker 00:
There may be some material in here which could be appropriately marked confidential, but there's a lot of it which can't be.

[00:02:16] Speaker 02:
We're very happy to revisit that, Your Honors.

[00:02:19] Speaker 00:
And we'll give you

[00:02:23] Speaker 00:
two weeks from today to file revised briefs, both sides, deleting public versions that delete these confidentiality markings to the maximum extent possible, and delete all the confidentiality markings with respect to legal argument.

[00:02:36] Speaker 00:
We'll do that, Your Honor.

[00:02:38] Speaker 05:
Counselor, but how are we to know here today what we can hear or address?

[00:02:44] Speaker 02:
Well, Your Honor, I think the principal issues that we're concerned about in the briefs have to do with the precise source code lines that are in

[00:02:52] Speaker 02:
uh... they're in the the briefs i don't know that anybody's going to be going into precise source code details but i don't i don't envision any of the things i'm saying and i i'm not sure anything's uh... council for alexi is going to say i'm going to create a problem in this hearing mister shill good morning your honor may it please the court

[00:03:22] Speaker 04:
There are two main points I would like to make this morning and respectfully request just 30 seconds to lay them out for the court.

[00:03:30] Speaker 04:
The first is that the primary error requiring reversal of the district court is its insertion of the machine perspective limitation in the claims.

[00:03:39] Speaker 04:
And second is that Mr. Alexi should be permitted to bring his case to the jury under the doctrine of equivalence, even if the claim construction is not reversed.

[00:03:49] Speaker 04:
The district court precluded Mr. Alexi from relying on the doctrine of equivalence because it incorrectly found that the claims are limited to one specific programming instruction, the G02 instruction, and also because of nonexistent disclaimers of the G01 instruction.

[00:04:09] Speaker 04:
Turning to my first point, the subject claim language states said movement of said spinning form cutter being in a convex path.

[00:04:20] Speaker 04:
What that language requires is simple, movement of that cutter in a convex path.

[00:04:26] Speaker 04:
And the dispute between the parties and the crux of the court's claim construction error relates to the way movement is understood.

[00:04:35] Speaker 04:
We believe that the term movement in the patent is best described by looking at column two, lines 40 to the end of that column.

[00:04:45] Speaker 04:
There are only two instances in the claim language of, or I'm sorry, in the specification

[00:04:50] Speaker 04:
where the word movement is used.

[00:04:52] Speaker 01:
Let me see if I can interrupt for just a minute.

[00:04:57] Speaker 01:
You're saying, as I understand it, that it's the workpiece coordinate that we should be focusing on, not the machine coordinate, correct?

[00:05:05] Speaker 04:
Correct, Your Honor.

[00:05:06] Speaker 01:
OK, now the workpiece, as I understand it, is affixed to the table.

[00:05:11] Speaker 04:
That's correct.

[00:05:11] Speaker 01:
The rotating table.

[00:05:12] Speaker 01:
And therefore, if you look at the workpiece coordinate that

[00:05:18] Speaker 01:
Well, you view the entire universe as if it's revolving around or moving around the workpiece, which stays fixed, correct?

[00:05:27] Speaker 01:
Well, the workpiece stays fixed.

[00:05:28] Speaker 01:
In the workpiece coordinate, right?

[00:05:31] Speaker 01:
Just as if you look at the coordinates from the machine, you would say the machine stays fixed and then all the parts move, right?

[00:05:38] Speaker 01:
Yes.

[00:05:38] Speaker 01:
Okay, so if the

[00:05:41] Speaker 01:
workpiece coordinate is the right way to look at this, then the table never moves, just as the workpiece never moves.

[00:05:50] Speaker 04:
Right?

[00:05:51] Speaker 04:
I dispute that, Your Honor.

[00:05:53] Speaker 04:
Why?

[00:05:54] Speaker 01:
In other words, you would agree that in the workpiece coordinate, the workpiece doesn't move, right?

[00:06:01] Speaker 01:
I would not agree with that, Your Honor.

[00:06:03] Speaker 04:
So the reason why is taught by figures two through four and five.

[00:06:07] Speaker 01:
Help me with the basic here.

[00:06:11] Speaker 01:
If you have a machine coordinate, let's say, then the basic premise is the machine is not moving, right?

[00:06:20] Speaker 01:
And then you look at the relative motion of everything else.

[00:06:24] Speaker 04:
I'm not sure that's a correct description, Your Honor.

[00:06:26] Speaker 04:
I think the two coordinate systems, the way that the dimensions are used to tell the cutter where to precisely move are

[00:06:35] Speaker 04:
based on where the fixed point is that you're giving the instructions from.

[00:06:40] Speaker 04:
In other words, if you're giving it in the machine coordinate system, you're telling the cutter to move at a point that's remote from where the zero point is located on the physical machine.

[00:06:52] Speaker 01:
Right.

[00:06:53] Speaker 01:
And the zero point stays fixed.

[00:06:56] Speaker 01:
The zero point stays fixed on the machine.

[00:06:58] Speaker 01:
And if you're talking about the workpiece coordinate,

[00:07:02] Speaker 01:
zero points stay fixed on the workpiece?

[00:07:05] Speaker 04:
On the workpiece, but the workpiece doesn't stay fixed.

[00:07:07] Speaker 04:
It can translate along the axis of the rotary table, which, if you'll see from the figures, it's not shown as being attached to anything.

[00:07:16] Speaker 04:
But that means that it was done that way so that the drawings would apply to all configurations of CNC machines.

[00:07:23] Speaker 01:
But if the workpiece is moving,

[00:07:26] Speaker 01:
then aren't you out of the workpiece coordinate system by definition?

[00:07:31] Speaker 04:
No.

[00:07:31] Speaker 04:
No, because it just means that the dimensions that you're giving the instructions from for the cutter to make a cut are located on the workpiece.

[00:07:41] Speaker 04:
So when you look at the example in the patent in column three, the dimensions that are used in that example are in inches.

[00:07:49] Speaker 04:
And they're in the inches that the cutter has to move to make the convex pattern.

[00:07:57] Speaker 04:
You'll notice that I think they're 1.7921.

[00:07:59] Speaker 01:
I understand that when you go to the patent, you see movement.

[00:08:04] Speaker 01:
But my impression is from the patent that that is really just showing us that the patent is actually written in machine coordinate and not in workpiece coordinate.

[00:08:15] Speaker 01:
And I'm not seeing why that's not true.

[00:08:20] Speaker 04:
Because one, there is no discussion anywhere in the patent of a machine coordinate system.

[00:08:25] Speaker 04:
The fact that the example is given in the work coordinate system is shown because the dimensions given could only be relevant or could only be accurate if it's measured from the work piece.

[00:08:39] Speaker 04:
You're telling the cutter to move 1.7921 inches in making this cut into the work piece.

[00:08:52] Speaker 04:
Those dimensions, if it was in the machine coordinate system, would be 1.7921 inches plus whatever distance it is from the zero point on the machine, which would be feet away from the work table.

[00:09:06] Speaker 04:
Because the work table is on one of the axes, which is translating back and forth along an axis.

[00:09:12] Speaker 04:
And the cutter is on another arm or spindle, which is on another axis.

[00:09:19] Speaker 04:
And those two, I think this is what

[00:09:21] Speaker 04:
gave me the most problems in coming to grips with this invention were just understanding how all of these movements could take place and how they were taught by figures one through four and five of the patent.

[00:09:37] Speaker 04:
But they are indeed.

[00:09:38] Speaker 04:
And remember, we're talking about a method of programming the CNC machine that uses trigonometric function to get to the accurate movements

[00:09:50] Speaker 04:
So that once it's programmed in the G01 or G02 programming language, those are interpreted by the CNC machine to make the machine move in the way that it needs to move and to make that proper cut that has the convex path.

[00:10:08] Speaker 04:
And it's both the workpiece and the cutter that can be moving.

[00:10:15] Speaker 04:
And those drawings are not limited

[00:10:17] Speaker 04:
you'll notice are not limited to any movement by any one of those parts.

[00:10:21] Speaker 04:
Even though the successive drawings two, three, and four show that the cutter travels through the root section, those drawings don't tell you whether the cutter is moving, whether the work piece is moving, or whether they're both moving.

[00:10:36] Speaker 04:
So there's no limitations in the patent as to this way these movements take place.

[00:10:43] Speaker 00:
Let's assume for the moment that the district court got the claim construction right

[00:10:48] Speaker 00:
Yes, sir.

[00:10:48] Speaker 00:
In turn, to the doctrine of equivalence, and particularly to 48, 21, and 22, which is prosecution history relating to the Heeman patent, you argue that this couldn't have been a disclaimer of G1.

[00:11:10] Speaker 00:
as I understand it, because Heman disclosed both G1 and G2.

[00:11:15] Speaker 00:
Am I correctly interpreting that?

[00:11:17] Speaker 00:
That's correct.

[00:11:18] Speaker 00:
But there is a whole line of cases, including Southwall being one of the leading cases, saying that the fact that you disclaimed something when you didn't need to or you disclaim on a wrong ground, it's still a disclaimer and you're stuck with it.

[00:11:35] Speaker 00:
So how do you deal with that?

[00:11:38] Speaker 04:
I think I'd deal with that and that there was no disclaimer.

[00:11:40] Speaker 04:
I think what Alexi told the patent office was that this case, or the Hayman patent could be distinguished based on the fact that the

[00:11:52] Speaker 04:
machining, this was machining within a metal block, and Heyman had nothing to do with machining within the interior of a metal block.

[00:12:00] Speaker 04:
That was the reason for the distinction.

[00:12:02] Speaker 00:
No, no, no, but you've got to stay with what you said to the panels.

[00:12:05] Speaker 00:
There may have been other distinctions of Heyman, but the whole line of cases I'm talking about doesn't make any difference.

[00:12:12] Speaker 00:
If you have other good grounds for distinguishing a piece of prior art, you're stuck with what you said.

[00:12:17] Speaker 00:
So you're stuck with what you said here.

[00:12:19] Speaker 00:
And what you said seems to be that you disclaimed, you said, we're not G1.

[00:12:25] Speaker 04:
Well, Lexi was saying, and I don't think there's any problem with this, said that they were teaching both

[00:12:36] Speaker 00:
G1 doing it in linear fashion and G2 doing it with circular interpolation was both taught by... But what I'm suggesting to you is that doesn't make any difference that you could have had a different distinction or that the distinction that you made wasn't a good distinction.

[00:12:53] Speaker 00:
That doesn't make any difference because the cases say if you disclaimed, you're stuck with what you said.

[00:12:59] Speaker 00:
And what you said seems to be that you're disclaiming linear.

[00:13:03] Speaker 04:
I think that what was said was actually not a disclaimer, in that it was an accurate description of what was taught by the Alexi patent that it could be used in both G01 and G02 programming.

[00:13:21] Speaker 04:
So I don't see how that could be a disclaimer of the G02 or G01 program.

[00:13:31] Speaker 04:
I'm sorry if I'm not answering your question, Your Honor.

[00:13:34] Speaker 04:
I don't think we're communicating yet.

[00:13:38] Speaker 05:
Isn't the question here whether the disclaimer was clear and unmistakable?

[00:13:49] Speaker 04:
I think that it could be the answer is that I don't think there was any clear disclaimer.

[00:13:54] Speaker 04:
I think in order to have a clear disclaimer you have to recognize that there isn't a teaching

[00:13:59] Speaker 04:
or say that there is not a teaching of that and have some contrary position in your patent.

[00:14:07] Speaker 04:
So it's certainly not clear and unmistakable in the way we argue the case.

[00:14:17] Speaker 04:
If I may proceed, John?

[00:14:19] Speaker 04:
Proceed.

[00:14:21] Speaker 04:
So I think in addition to the reasons I gave Judge Bryson earlier,

[00:14:29] Speaker 04:
The reason Alexei lost, I believe, on summary judgment was because the court limited the interpretation of the claim to the machine perspective, the machine coordinate system, by requiring the form cutter itself to physically move when the claim is not so limited.

[00:14:47] Speaker 04:
First, the claims are silent as to the coordinate system.

[00:14:52] Speaker 05:
Go ahead.

[00:14:52] Speaker 05:
Your argument is that claim one refers to the movement only in a work coordinate

[00:14:57] Speaker 05:
down the system.

[00:14:58] Speaker 04:
No.

[00:14:59] Speaker 04:
Claim one can be done in either coordinate system, either the machine or the work coordinate system.

[00:15:06] Speaker 04:
The example given is in the work coordinate system.

[00:15:09] Speaker 04:
But if the court found only the machine coordinate system has to be used, I think that's talking about, in my mind, looking at the absolute movement of the cutter, whether it goes just back and forth, straight across, and doesn't look at the movement of the cutter and the workpiece combined.

[00:15:28] Speaker 04:
to make the convex path.

[00:15:36] Speaker 04:
The specification confirms that the preferred embodiment of the LEXI patent uses the work coordinate system because of those dimensions that I recited earlier, Your Honor.

[00:15:48] Speaker 04:
We reproduce this at page 31 of our brief and plot it on page 32.

[00:15:54] Speaker 04:
If you look at those plots

[00:15:56] Speaker 04:
you'll see that the coordinate system is fixed on the workpiece.

[00:16:03] Speaker 04:
Because if this were in the machine coordinate system, as I mentioned earlier, it would be substantially further.

[00:16:10] Speaker 04:
Those dimensions would be substantially greater than working on the work coordinate system.

[00:16:15] Speaker 04:
So we think that this makes a significant difference in interpretation of the claim that the court was wrong, our position is accurate, that the

[00:16:27] Speaker 04:
the claim, you have to be able to encompass the work coordinate system within the interpretation of the claim, and it would not do so under the judge's interpretation.

[00:16:39] Speaker 00:
In either event, we think we're entitled to make our case under the doctrine of equivalence.

[00:16:57] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:17:00] Speaker 02:
First and foremost, it's argued the District Court here, in a very thorough and careful opinion, correctly concluded the key... Let me ask you a couple of procedural questions before you start.

[00:17:09] Speaker 00:
First of all, is your 101 argument contingent on our rejecting the District Court's claim construction?

[00:17:18] Speaker 00:
Yes, it is.

[00:17:19] Speaker 00:
Okay, so we don't have to reach that issue if we were to agree with the District Court on the claim construction.

[00:17:23] Speaker 02:
That is correct, Your Honors.

[00:17:25] Speaker 00:
OK, and what about the appealability of the shop rights issue?

[00:17:30] Speaker 02:
So Your Honor, and the court brought to our attention the Supreme Court decision in Plumoff.

[00:17:36] Speaker 02:
That case deals with a bare appeal of a denial of summary judgment.

[00:17:39] Speaker 02:
We don't have that here.

[00:17:41] Speaker 02:
We have a final judgment of non-infringement that the district court entered and actually clarified further by dismissing pending counterclaims of invalidity.

[00:17:50] Speaker 02:
So we have a final judgment.

[00:17:52] Speaker 02:
And under this court's decision in Glaxo,

[00:17:55] Speaker 02:
versus Torr Farm at 153 Fed 1366.

[00:17:59] Speaker 02:
That entitles us to be able to raise any other issue that the district court passed on but did not rule in our favor, which would include the shop rights issue, which we move for summary judgment on, but which was denied.

[00:18:11] Speaker 00:
OK, why don't you go ahead.

[00:18:12] Speaker 00:
Thank you, Your Honor.

[00:18:15] Speaker 01:
Let me ask a second question on that, related to that.

[00:18:19] Speaker 01:
In your view, why is the shop rights issue

[00:18:23] Speaker 01:
uh, raiseable as a cross appeal, as opposed to a ground, uh, in support of, uh, the judgment.

[00:18:29] Speaker 01:
Because you abandoned the counterclaim on shop rights, as I understand it, in your, in your amended answer.

[00:18:36] Speaker 01:
Is that right?

[00:18:36] Speaker 01:
So my understanding is we never had a counterclaim based on shop rights.

[00:18:39] Speaker 01:
We had a counterclaim based on breach of contract.

[00:18:42] Speaker 01:
Right.

[00:18:42] Speaker 01:
But the breach of contract is tied up with the shop rights.

[00:18:45] Speaker 01:
In other words, you're saying you breached a contract which

[00:18:48] Speaker 01:
in type gave us rights in the, it is certainly closely aligned.

[00:18:52] Speaker 02:
We clearly maintained a defense of shop right.

[00:18:56] Speaker 01:
Right.

[00:18:57] Speaker 01:
Okay.

[00:18:57] Speaker 01:
That defense, that's fine.

[00:18:59] Speaker 01:
But when you abandoned the counterclaim, whether it carried with it the shop rights or not, you abandoned the right to a separate declaratory judgment in the final judgment on the assignment agreement slash shop rights issue, right?

[00:19:15] Speaker 01:
So why is that as a

[00:19:17] Speaker 01:
as a cross appeal?

[00:19:20] Speaker 02:
Let me break those two apart, Ron, if I might, and just address the cross appeal first.

[00:19:25] Speaker 02:
This court has made clear that if we are seeking to enlarge our rights under a judgment, that is, if this court were to reach the shop right issue, it would find GE is licensed under the patent in effect.

[00:19:36] Speaker 02:
which is a broader enlargement of rights versus a mere non-infringement.

[00:19:40] Speaker 01:
But because you haven't filed a counterclaim, the judgment that you would get would be a judgment merely of non-infringement, because this is just a defense.

[00:19:50] Speaker 02:
So our interpretation of it is the judgment would say we don't infringe because we have a shop right.

[00:19:58] Speaker 02:
And certainly, from our perspective, a cross-appeal was appropriate and necessary, because this court has said if we don't cross-appeal,

[00:20:05] Speaker 02:
were barred from raising those issues.

[00:20:08] Speaker 02:
So I will say, whether it's treated as an affirmative ground for relief or as an independent cross-appeal, to us, procedurally, we wanted to make sure we preserved the issue, which is why we took a cross-appeal from that issue.

[00:20:20] Speaker 00:
Well, preserve the issue.

[00:20:22] Speaker 00:
Suppose we were hypothetically to agree with you that there was no infringement here.

[00:20:26] Speaker 00:
We wouldn't reach the shop rights issue, right?

[00:20:29] Speaker 02:
So, Your Honor, we think we have a shop right here and should never face this again.

[00:20:34] Speaker 00:
But wait, answer my question.

[00:20:36] Speaker 00:
Do we have to reach, in your view, do we have to reach this?

[00:20:38] Speaker 02:
I do not think so.

[00:20:42] Speaker 02:
OK.

[00:20:42] Speaker 02:
Turning back to the merits, if I can just go to the convex path issue first.

[00:20:50] Speaker 02:
One point which Oleksi does not address at all, I would submit, in his briefs is the issue, the first issue the district court resolved this on, and that is judicial estoppel.

[00:20:59] Speaker 02:
For eight years, this case was about specific movement of a forum cut.

[00:21:03] Speaker 01:
Before you get into the specifics of the arguments, can you help me on the issue that I was discussing with Mr. Schill, which is if my understanding, and Mr. Schill, I think, takes issue with my understanding, but I want to see if you do too, is that from the work piece perspective, that's the view of the world in which the work piece is the center of the universe and everything else is moving around it, as I understand that.

[00:21:33] Speaker 01:
concept of the workpiece perspective and the machine perspective.

[00:21:36] Speaker 01:
The machine is the center of the universe and different pieces of the machine, some point on the machine is fixed and everything else is moving around.

[00:21:46] Speaker 01:
Is that your understanding of what workpiece perspective means such that in the workpiece perspective, the workpiece and the table to which it is affixed do not move?

[00:21:59] Speaker 01:
So no, that is not my understanding of their argument.

[00:22:02] Speaker 01:
No, no.

[00:22:02] Speaker 01:
Is that your understanding of what it means to say the workpiece perspective?

[00:22:06] Speaker 01:
No.

[00:22:07] Speaker 02:
So in this disclosure, the table has a rotary part that's moving.

[00:22:13] Speaker 02:
The workpiece is affixed to the top of the rotary rotating part.

[00:22:17] Speaker 02:
That's right.

[00:22:18] Speaker 02:
So the workpiece is moving relative to the table.

[00:22:20] Speaker 01:
But it's only moving, it seems to me, if you're looking at it from the machine perspective.

[00:22:25] Speaker 01:
From the perspective of the workpiece, the rest of the universe is moving back and forth, is rotating.

[00:22:31] Speaker 01:
Is that not true?

[00:22:32] Speaker 02:
So I think I understand your point.

[00:22:33] Speaker 02:
So this is the train analogy.

[00:22:34] Speaker 02:
If I'm sitting on a moving train and I look at another train, I can't tell whether I'm moving, they're moving, or we're both moving.

[00:22:41] Speaker 01:
Here's the point, it seems to me.

[00:22:43] Speaker 01:
If it's true that the workpiece perspective requires that the workpiece and therefore the table to which it is affixed are not moving, everything else is moving,

[00:22:53] Speaker 01:
then that's inconsistent, it seems to me, with the language in the patent, which says that the table rotates.

[00:23:00] Speaker 01:
Because in the workpiece perspective, the table does not rotate.

[00:23:03] Speaker 01:
Is that not true?

[00:23:04] Speaker 02:
I completely agree with that.

[00:23:06] Speaker 01:
I thought you took issue with my characterization of the workpiece perspective a moment ago.

[00:23:10] Speaker 02:
No.

[00:23:10] Speaker 02:
I think the way you've explained it now, I understand.

[00:23:13] Speaker 02:
I think their workpiece coordinate system reads out movement and simultaneously a number of other limitations from the claims.

[00:23:20] Speaker 01:
So it really is the patent, it seems, is written

[00:23:23] Speaker 01:
in the machine perspective when it talks about the rotating table and the movement of the tool along a convex line, right?

[00:23:35] Speaker 02:
That is absolutely true, Your Honor.

[00:23:36] Speaker 02:
And in fact, just to sort of simplify this, this patent is very clearly written from the perspective of you or I standing, looking at this machine from the tailstock side, watching it move.

[00:23:49] Speaker 02:
All of the descriptions in this patent

[00:23:51] Speaker 02:
the claims and everything else are totally consistent with that.

[00:23:54] Speaker 02:
And in fact, if you're honest, we'll look at the provisional patent application to which Mr. Oleksi claims priority.

[00:24:00] Speaker 02:
He actually tells us that.

[00:24:02] Speaker 02:
And this is at page A3765, and this is, he's repeating the same text from column four of his patent where he describes the movement from two, figures two, three, four, and five.

[00:24:15] Speaker 02:
In his provisional, he says,

[00:24:18] Speaker 02:
Quote, by looking at drawings one, two, three, and B as in Baker, and one, two, three, and B as in Baker, I will tell you are substantively identical to figures two, three, four, and five in the patent.

[00:24:30] Speaker 02:
We describe one cutting pass for machining the curvature on the hooks.

[00:24:35] Speaker 02:
Perrin, the observer is looking from the tail stock side.

[00:24:41] Speaker 02:
Close Perrin.

[00:24:42] Speaker 05:
What's that citation again?

[00:24:43] Speaker 02:
A3765.

[00:24:46] Speaker 02:
right out of the provisional patent application in the appendix.

[00:24:51] Speaker 02:
So this notion that somehow the preferred embodiment of this invention is written from the perspective of someone sitting on the workpiece is just absolutely not accurate.

[00:25:01] Speaker 02:
Mr. Oleksi tells us exactly where he's describing and how he's describing

[00:25:06] Speaker 02:
these movements.

[00:25:07] Speaker 02:
Somebody standing, looking at this machine from the tailstock side of things.

[00:25:10] Speaker 02:
It's not really just the preferred embodiment, right?

[00:25:11] Speaker 02:
It's the claim language itself.

[00:25:13] Speaker 02:
Well, yeah, absolutely.

[00:25:14] Speaker 02:
And in fact, this claim language was dropped in in the original prosecution by amendment, in a massive amendment to the claims, which, you know, candidly, claims exactly what he's describing.

[00:25:26] Speaker 02:
It is the preferred embodiment.

[00:25:28] Speaker 02:
That's what happened here during prosecution.

[00:25:32] Speaker 02:
All right.

[00:25:32] Speaker 02:
So we completely agree.

[00:25:34] Speaker 02:
And in fact,

[00:25:36] Speaker 02:
Mr. Alexi describes this train analogy in his brief, and he makes the point you made very well that if you're sitting on train A, you don't know whether train A is moving, train B is moving, or both or neither.

[00:25:48] Speaker 02:
The only perspective you're able to tell what's moving and so on is from the platform, which is the machine perspective.

[00:25:58] Speaker 02:
And these claims require not only movement of two different elements.

[00:26:01] Speaker 02:
They require movement of the cutting tool and also movement of the rotary table.

[00:26:05] Speaker 02:
But they require that movement to be simultaneous.

[00:26:08] Speaker 02:
The only perspective from which you could detect simultaneous movement is the perspective of standing on the platform.

[00:26:15] Speaker 02:
So the claims are very clearly directed to the machine ordinate system.

[00:26:21] Speaker 02:
Let me turn to the question of non-infringement.

[00:26:24] Speaker 02:
It seems pretty clear here under the district court's construction there's no literal infringement.

[00:26:28] Speaker 02:
It's undisputed that the accused cutters in the GE methods

[00:26:33] Speaker 02:
either don't move at all, which is, of course, one of the interesting points here, or move only in a single linear direction.

[00:26:42] Speaker 02:
If, in fact, this court affirms, I would submit, and this was argued below, there's been a complete failure of proof here on doctrine of arguments.

[00:26:51] Speaker 02:
This was the primary no-DOE argument we made in the summary judgment briefing.

[00:26:55] Speaker 02:
There is no function way

[00:26:57] Speaker 02:
result uh... leaking how you may have made that argument although i don't recall that that particular it was made here so i think sixty two of our of our brief your honor we make the point that if the court affirms on literal infringement there's no one this judgment has to be in affirmed but because there is no way to argue under any theory where do you argue lack of evidence did you argue well we argue that once we will again at page sixty two of our brief what we say is if the court for one

[00:27:26] Speaker 02:
on the claim construction issue, there can be no infringement as a matter of law.

[00:27:31] Speaker 02:
We make two alternative arguments.

[00:27:33] Speaker 02:
One is no infringement as a matter of law.

[00:27:35] Speaker 02:
The other argument is disclosure dedication disclaimer, which is the argument the district court went on and considered.

[00:27:43] Speaker 02:
I don't want to spend a lot of time on this, but if there ever were a vitiation case for a claim element here, there are two separate elements in this claim that must move.

[00:27:55] Speaker 02:
the workpiece and the cutter.

[00:27:58] Speaker 02:
And if the cutter has to move in a convex path, which we submit is absolutely plainly clear from these claims, and the table has to rotate, and that's how this invention works, they have to establish DOE on a limitation by limitation basis.

[00:28:16] Speaker 02:
A cutter that does not move, I would submit to you, as a matter of law, cannot move in a convex way.

[00:28:21] Speaker 05:
Even though, let's say that the G cutter moves on this

[00:28:25] Speaker 05:
very small lines.

[00:28:27] Speaker 05:
Yes, Your Honor.

[00:28:29] Speaker 05:
But at the end of the day, if it's still moving in a convex path, then don't you have a problem?

[00:28:38] Speaker 02:
Well, we might if that were the way our machine operates.

[00:28:41] Speaker 02:
It's not.

[00:28:42] Speaker 02:
From the machine perspective, where these claims need to be evaluated, it's undisputed that our cutter either is completely stationary or at most does this.

[00:28:54] Speaker 02:
moves and I'm just, my arm is literally staying straight as I can.

[00:28:57] Speaker 05:
That's all that's happening with respect to the limitation at issue we're talking about here, which is the... But if that movement, that very abrupt incremental movement that you are showing with your hand, if that results in a convict path

[00:29:13] Speaker 05:
then don't you have a problem.

[00:29:15] Speaker 02:
But it can't result in a convex path because it's a straight line.

[00:29:17] Speaker 01:
You mean it can't result in a perfect convex path because it's going to be jagged.

[00:29:21] Speaker 02:
Well, it's going to be straight.

[00:29:23] Speaker 01:
Other things are moving around it.

[00:29:24] Speaker 01:
Right, but depending on the perspective we're looking at it, you could have a system in which as it's going just like that, something else is moving, let's say, up so that it's actually going like this and making a rough convex curve.

[00:29:40] Speaker 01:
I thought your argument was that

[00:29:43] Speaker 01:
even if that's regarded as being a generally convex curve, that it isn't convex in the way that the patent is claiming.

[00:29:53] Speaker 02:
For sure.

[00:29:53] Speaker 02:
And that is for sure accurate, and it's been disclaimed as the discussion about Heyman makes very clear.

[00:29:59] Speaker 02:
An approximation of a curve is not covered by these claims, as the district court found, and it was disclaimed in prosecution over Heyman.

[00:30:09] Speaker 02:
So even if you were to say like a stair-step kind of an approach,

[00:30:13] Speaker 02:
I'm fundamentally at a step before that, which is this is not even an approximation of a convex curve.

[00:30:20] Speaker 02:
Now, it could result in a cut happening in the blade.

[00:30:24] Speaker 02:
But that cut, by the way, is concave, not convex.

[00:30:28] Speaker 02:
So even Alexei is mixing coordinate systems to try to make the argument that there's a convex path anywhere out there.

[00:30:36] Speaker 02:
Because what's cut in the root section is concave, not convex.

[00:30:43] Speaker 02:
Remember, the supposed genius of this invention was a convex path of the form cutter resulting in a concave cut in the blade.

[00:30:55] Speaker 02:
That's the alleged genius of this invention, Your Honor.

[00:30:58] Speaker 02:
We don't have anything other than what they can point to as an end result of a cut in the blade.

[00:31:05] Speaker 02:
So I would submit under that theory.

[00:31:08] Speaker 02:
I'm happy to address the disclaimer point, Your Honor, but I think it's absolutely clear, and the district court got it spot on here.

[00:31:14] Speaker 02:
Her analysis is excellent on this point, and I don't know that I could say it any better.

[00:31:19] Speaker 02:
So I simply would point to her analysis.

[00:31:21] Speaker 02:
It is absolutely spot on about short straight lines.

[00:31:24] Speaker 02:
And if you compare the short straight lines with what they describe as a different way in the specification of doing it, they match up very nicely.

[00:31:33] Speaker 02:
So not too much needs to be said about that.

[00:31:37] Speaker 02:
As I pointed out before, if the court agrees with us on the claim construction, it need not reach the Section 101 issue.

[00:31:45] Speaker 02:
It need not reach the shop rights issue.

[00:31:47] Speaker 02:
Our issue on the Section 101 argument is simply that if you accept their argument, these movement limitations have no meaning.

[00:31:54] Speaker 02:
And this is a pure claim to programmed instructions of the kind the court has rejected in Benson and cases like that.

[00:32:02] Speaker 01:
You make the argument in your brief, I think, that the shop right

[00:32:08] Speaker 01:
under, at least under Illinois law, is indefeasible.

[00:32:11] Speaker 01:
Yes.

[00:32:12] Speaker 01:
And you take that language and suggest that the company that owns this shop right somehow cannot give it away.

[00:32:21] Speaker 01:
That strikes me as really strange.

[00:32:25] Speaker 01:
I mean, if Mr. Alexi came to GE and said, I'll pay you $500,000

[00:32:34] Speaker 01:
to waive your shop right.

[00:32:36] Speaker 01:
Are you saying that GE would be unable to waive its shop right?

[00:32:41] Speaker 01:
So the indefeasible term comes straight from the set of circuits.

[00:32:44] Speaker 01:
I know, but what it struck me is what they're really saying is it's indefeasible in the sense that the employee can't come back later and say, oh well, I had my fingers crossed.

[00:32:56] Speaker 01:
Not that the company is unable to waive it.

[00:33:01] Speaker 01:
You're not arguing that, are you?

[00:33:03] Speaker 02:
We talked about this very issue a few days ago, and I completely agree with you that if GE wanted to waive a shop right, it could conceivably waive a shop right.

[00:33:12] Speaker 02:
Well, then the only question is whether it has waived.

[00:33:17] Speaker 02:
Right?

[00:33:18] Speaker 02:
I would argue that if the case law says it's indefeasible, at a bare minimum, that waiver has to be beyond any reasonable dispute.

[00:33:27] Speaker 02:
Indefeasible means clear?

[00:33:29] Speaker 02:
Absolutely clear.

[00:33:31] Speaker 02:
I mean, I don't know how to square that.

[00:33:35] Speaker 02:
Indefeasible means it's unwaivable.

[00:33:37] Speaker 02:
I mean, that's absolutely what the Seventh Circuit has held here.

[00:33:40] Speaker 02:
But there is no way to look at this factual record and find that GE has waived its right to a shop right in this case.

[00:33:47] Speaker 02:
We paid for this invention to be made on our time using our machinery.

[00:33:51] Speaker 02:
And we've been litigating this case for 10 years over an invention that was made using our time.

[00:33:57] Speaker 02:
We paid for it.

[00:33:59] Speaker 00:
Mr. Rainey, I think we're out of time.

[00:34:01] Speaker 00:
Thank you, Your Honor.

[00:34:07] Speaker 00:
Thank you, Your Honor.

[00:34:08] Speaker 04:
I just want to make clear that the claims are not limited to either coordinate system.

[00:34:18] Speaker 04:
We could prevail under either coordinate system if we had to.

[00:34:21] Speaker 04:
We think it's easier if the Court recognizes correctly, as we argue.

[00:34:26] Speaker 04:
In addition,

[00:34:29] Speaker 04:
to follow up on one point that was just made.

[00:34:31] Speaker 00:
The clock should be reset.

[00:34:33] Speaker 00:
He had three minutes.

[00:34:33] Speaker 00:
Thank you.

[00:34:42] Speaker 04:
Indefeasible, as we were just discussing, we think applies to the person, not to the company.

[00:34:48] Speaker 04:
So it's indefeasible as to the inventor.

[00:34:52] Speaker 04:
I'd like to describe sort of the Geo 01 and Geo 02 programming

[00:34:58] Speaker 04:
for a moment if we could.

[00:35:00] Speaker 04:
And that is, those are instructions that are given to the CNC machine in two different manners.

[00:35:07] Speaker 04:
The G01, the programmer actually goes in in points, makes a point of one, two, three, four, as many numbers of points as he feels is necessary to achieve the accuracy of the cut they need.

[00:35:20] Speaker 04:
And then each one of those points is programmed into the machine.

[00:35:24] Speaker 04:
The G02, the end points are programmed into the machine,

[00:35:28] Speaker 04:
and the arc is programmed.

[00:35:31] Speaker 04:
And the machine itself will decide how many points it needs to move the cutter to achieve the accuracy that's called for.

[00:35:39] Speaker 04:
So they're both alternative methods.

[00:35:42] Speaker 04:
G2 is more precise.

[00:35:42] Speaker 00:
Excuse me.

[00:35:43] Speaker 00:
G2 is more precise.

[00:35:45] Speaker 04:
Not necessarily on it.

[00:35:46] Speaker 04:
They should both be the same precision as long as you program in the necessary number of points on the G01 curve.

[00:35:54] Speaker 04:
And that's what we tried to show

[00:35:56] Speaker 04:
in our figure six in our blue brief is they start off, one starts off with a connected arc, the other one starts off with a series of points.

[00:36:06] Speaker 04:
But the machine, and these are directions you're giving the machine, the machine chooses how to move the cutter, move the other parts of the machine to achieve that cut.

[00:36:16] Speaker 04:
In the sample that I gave you the exhibit, you'll notice that the convex curve is very hard to see, but it's on the top surface of the hooks.

[00:36:26] Speaker 04:
There's a very slight concave path on the top of those hooks made by the convex curve that was invented by Mr. Alexi of this machine.

[00:36:38] Speaker 04:
The one thing about this system is it was invented.

[00:36:42] Speaker 04:
Before this, there was no way to do this.

[00:36:44] Speaker 04:
The whole industry has adopted this mechanism of doing this invention to make these cuts in rotor root sections.

[00:36:56] Speaker 04:
If the whole industry is adopted, including GE, we believe that there's some significant invention in this that was made by Mr. Alexi.

[00:37:06] Speaker 04:
And we respectfully ask the court to grant us the relief we requested in our concluding paragraph.

[00:37:13] Speaker 04:
Any further questions?

[00:37:15] Speaker 01:
Could I ask a question?

[00:37:17] Speaker 01:
So that I can understand the technology here better.

[00:37:23] Speaker 01:
Suppose this is the workpiece, and it's moving back and forth, rotating back and forth.

[00:37:32] Speaker 04:
The workpiece would not move in that manner, because it would be fixed to the rotary table.

[00:37:36] Speaker 01:
It's fixed to the rotary table, but the rotary table is rotating like that, right?

[00:37:40] Speaker 04:
Well, depends on what coordinate we're in, but I think of the rotary table rotating in this dimension.

[00:37:45] Speaker 01:
Well, OK, but you can have it either this way or that way.

[00:37:47] Speaker 01:
But let's suppose we have it this way, set up this way.

[00:37:50] Speaker 01:
So in the machine coordinate, and it

[00:37:54] Speaker 01:
per the language in the patent, which says that the table rotates, then this would be the table rotating as dictated by the patent, right?

[00:38:03] Speaker 01:
Certainly.

[00:38:03] Speaker 01:
All right.

[00:38:04] Speaker 01:
So the work piece is going back and forth while the cutter is describing this convex curve, as I understand it, as this is coming along here, which results in a convex cut, correct?

[00:38:19] Speaker 04:
No.

[00:38:21] Speaker 04:
The surface it's machining actually turns out to be concave.

[00:38:26] Speaker 04:
Did I say convex?

[00:38:27] Speaker 01:
I meant concave.

[00:38:27] Speaker 01:
I'm sorry.

[00:38:28] Speaker 01:
Yes, a concave cut.

[00:38:30] Speaker 01:
Yes.

[00:38:31] Speaker 01:
Now, suppose the cutter were going in a perfectly straight line as this device is rotating.

[00:38:38] Speaker 01:
Would that not result still in a concave cut, but a deeper concave cut?

[00:38:46] Speaker 01:
No, Your Honor.

[00:38:47] Speaker 01:
What would it result in?

[00:38:51] Speaker 01:
I mean, you say no, so I assume you have some sense of what it would result in in order to be able to say it wouldn't be a deeper cut.

[00:39:00] Speaker 04:
I think the one thing that I think needs to be remembered in this, the invention really, the cutter actually follows the turning workpiece.

[00:39:15] Speaker 04:
So instead of the two pieces coming toward each other, the cutter and the workpiece coming toward each other,

[00:39:21] Speaker 04:
The workpiece is rotating away from the cutter.

[00:39:23] Speaker 04:
The cutter is following the workpiece.

[00:39:26] Speaker 04:
And the cut is made by going into one side of the workpiece and coming out the other.

[00:39:34] Speaker 04:
And that was sort of the way this is made possible, because that's not a usual way that these CNC machines used to make their parts.

[00:39:43] Speaker 04:
But I don't see the cutter if it's going straight across.

[00:39:46] Speaker 01:
Then what shape?

[00:39:48] Speaker 01:
What's the difference in the shape of the cut if the cutter is moving, not in a convex path, but in a straight path?

[00:39:58] Speaker 01:
What different cut is made in that situation?

[00:40:03] Speaker 01:
I would only be guessing, Your Honor.

[00:40:04] Speaker 01:
I don't know the answer to that question.

[00:40:06] Speaker 01:
But I think it's not... You're not sure that it's not what I was saying, which is a deeper concave cut.

[00:40:14] Speaker 01:
Can I control with my coca?

[00:40:15] Speaker 01:
Yes.

[00:40:21] Speaker 04:
Yeah, and I think he reminded me, I mentioned that chasing movement, because the reason for doing that was because the cutter can interfere with the interior surfaces that you're cutting.

[00:40:32] Speaker 04:
So I think if you're going straight in, it's going to interfere more, so you're not going to wind up getting any kind of recognizable cut.

[00:40:40] Speaker 04:
There's just going to be a binding up of the cutter with the metal block.

[00:40:46] Speaker 00:
Thank you, Your Honor.

[00:40:50] Speaker 00:
we didn't have much on the across nothing further from us your honor, the rest of the court has any questions okay thank you thank both counsel the case is submitted