[00:00:53] Speaker 03: Our second case this morning is number fifteen dash sixteen twenty Osram versus Schuber, Mr. Sanders. [00:01:25] Speaker 02: Good morning, Your Honors. [00:01:28] Speaker 02: Charles Sanders on behalf of Osram. [00:01:32] Speaker 02: The board here erred by applying a gloss on its claim construction that resulted in its failure to find anticipation based on Akasaki. [00:01:42] Speaker 02: Akasaki meets the plain language of the board's construction, which was etching that proceeds in directions dictated by the crystallographic planes of the material being etched. [00:01:56] Speaker 02: However, the board found no anticipation because the board applied a clause that excluded etching where defects are present, as in Figure 2 of the 475 pack. [00:02:07] Speaker 03: I don't think it said that. [00:02:08] Speaker 03: It said that defects aren't necessarily subject to crystallographic etching. [00:02:14] Speaker 03: And the question is, are these defects crystals? [00:02:18] Speaker 03: And is the elimination of the defect crystallographic etching? [00:02:23] Speaker 03: And what did you have in the record [00:02:25] Speaker 03: that contradicts the board's conclusion that that wasn't established? [00:02:31] Speaker 02: Your Honor, it's correct. [00:02:32] Speaker 02: In the claim construction section, the board stated that defect action could be covered by the plain language of its claim construction. [00:02:40] Speaker 02: But then when it turned to the invalidity section, the board returned to Figure 2 of the 475 patent itself and declared that excluded from its construction. [00:02:52] Speaker 02: And Figure 2 showed [00:02:54] Speaker 02: crystallographic etching at defect sites. [00:02:58] Speaker 03: Well, putting aside Figure 2, what is there in the record that defect sites involve crystallographic etching? [00:03:07] Speaker 02: In addition to the intrinsic evidence of Figure 2, the parties do not dispute here that crystallographic etching has its conventional meaning. [00:03:16] Speaker 02: There are also two technical treatises, both of which the Board discussed at institution, but did not discuss in its final written decision. [00:03:24] Speaker 02: the first of those. [00:03:25] Speaker 03: So you didn't have a declaration from an expert that the fixing of defects involves crystallographic etching? [00:03:33] Speaker 02: Yes, we did, Your Honor, from Dr. Wetzel. [00:03:35] Speaker 02: And the position that we took throughout this appeal, including Dr. Wetzel's testimony and his deposition, was that etching through damage is equally crystallographic etching. [00:03:48] Speaker 02: And that's shown by the 475 patent itself. [00:03:53] Speaker 03: Where does your expert say this? [00:03:58] Speaker 02: Let me direct, Your Honors, to A 1331. [00:04:05] Speaker 02: And it is pages 212 to 213 of the deposition. [00:04:14] Speaker 02: And this is where our expert, Dr. Wetzel, explains [00:04:19] Speaker 02: that the only difference is that Akasaki does not use the term 1331. [00:04:25] Speaker 03: And which pages of the deposition? [00:04:27] Speaker 02: Sure. [00:04:27] Speaker 02: It is page 212. [00:04:30] Speaker 02: Line 20 is the question at A 1331. [00:04:35] Speaker 02: And the answer is at page 213 and begins at line 7. [00:04:45] Speaker 02: And this is where Dr. Wetzel explained that [00:04:49] Speaker 02: The only difference is the label in the 475 pattern of using the term crystallographic. [00:04:57] Speaker 02: There is no dispute. [00:05:01] Speaker 03: This is difficult to follow. [00:05:03] Speaker 03: I don't see that this is saying that the elimination of defect sites involves crystallographic etching. [00:05:12] Speaker 03: You see he talks about the translation from the Japanese. [00:05:18] Speaker 03: Interesting, but not on point. [00:05:20] Speaker 02: Your Honor, at page 213, the paragraph that begins at line 16 through line 22. [00:05:27] Speaker 02: So through all the material here, they describe exactly the same thing, exactly the same solutions with exactly the same results. [00:05:34] Speaker 02: So to label one step in this process with a new name cannot take away from this work that they have achieved exactly the same thing. [00:05:41] Speaker 02: And I would direct, Your Honor, as well to page part of the intrinsic record, A490. [00:05:50] Speaker 02: which is the wire reference, where the very solution that Akasaki uses, which is K08 solution, is described as etching with strong crystallographic anisotropy. [00:06:04] Speaker 02: That's in the intrinsic record at A490. [00:06:08] Speaker 02: What was that? [00:06:10] Speaker 00: I know A490, but which one? [00:06:11] Speaker 02: It's on the right-hand side, the paragraph underneath the figure. [00:06:16] Speaker 02: It is the second sentence. [00:06:19] Speaker 02: which discusses the free etching. [00:06:22] Speaker 02: And the end of that sentence talks about the etching with strong crystallographic anisotropy as demonstrated in figures one and two. [00:06:30] Speaker 02: The captions of figures one and two refer to etching in KOH solution. [00:06:37] Speaker 02: That is in figure two in the caption toward the right-hand side of the page. [00:06:41] Speaker 02: And in figure one, the first line of the caption toward the right-hand side of the page. [00:06:47] Speaker 03: Where does it say these are defect sites? [00:06:50] Speaker 02: Your Honor, the point here is that the presence of defects doesn't preclude the crystallographic etching from occurring. [00:06:58] Speaker 02: It occurs equally at defect sites, as illustrated in Figure 2, as stated in the three of the extrinsic references. [00:07:09] Speaker 02: The 1991 CRC handbook refers to etching, crystallographic etching, at Pitts. [00:07:15] Speaker 02: The 1987 [00:07:19] Speaker 02: technical treatise refers to etching crystallographic etch pits and the Kozawa reference also refers to hexagonal crystallographic etch pits formed by etching. [00:07:32] Speaker 00: Is it your position that this defective etching necessarily is crystallographic etching? [00:07:40] Speaker 00: Is that your position? [00:07:41] Speaker 02: Our position is that defect etching is crystallographic [00:07:45] Speaker 02: when an etching solution is used that etches that material crystallographically and that KOH solution, which is used in Akasaki, is such a solution. [00:07:55] Speaker 02: Our position is not that defect etching is always crystallographic. [00:07:59] Speaker 02: If there were an etching solution used that was not a crystallographic etching solution, then it would not be crystallographic etching. [00:08:05] Speaker 00: So as I understand the board's decision, they said defect etching could be but is not necessarily crystallographic etching. [00:08:13] Speaker 00: And you agree with that. [00:08:15] Speaker 02: We agree with that. [00:08:15] Speaker 02: That was the statement in the claim construction section. [00:08:19] Speaker 02: And then later in the opinion, at A17, the board addresses figure two of the 475 patent itself. [00:08:30] Speaker 02: And that's the paragraph at the bottom of A17. [00:08:32] Speaker 00: Right, where they say we're not persuaded this embodiment says that defect etching is crystallographic etching. [00:08:41] Speaker 02: That's correct, Your Honor. [00:08:43] Speaker 00: So why are they wrong about that? [00:08:44] Speaker 02: Why are they wrong about Figure 2? [00:08:47] Speaker 02: Figure 2 describes etching to form, well, let me take the entire explanation of Figure 2. [00:08:56] Speaker 02: In the paragraph before Figure 2, and this is at column 3 of the patent, starting at line set A34, the column [00:09:12] Speaker 02: is three, and the paragraph starts around line 18. [00:09:17] Speaker 02: And at line 23, the applicants explain what they've discovered here, which is that by applying an initial processing step, that's what they describe as the unexpected result, they can then crucifix the actual sidewalks. [00:09:34] Speaker 02: They go on to say, this unexpected result in reading from line 26 of column 3 has been explored in several experiments by the applicants. [00:09:41] Speaker 02: applicants have identified other etching solutions that are able to etch various crystallographic claims into not only gallium nitride GaN, but other materials. [00:09:51] Speaker 02: They then go on in the next paragraph. [00:09:53] Speaker 03: Figure 2 is talking about the seaplane, whereas the claims are directed to the non-seaplane, right? [00:10:00] Speaker 02: Figure 2 is an example of crystallographic etching of the seaplane. [00:10:04] Speaker 02: Now, some claims of this patent are not limited to etching non-seaplanes, [00:10:08] Speaker 02: I would direct your honor to one of the challenge claims, which is claim 13. [00:10:19] Speaker 02: Claim 13 has no limitation to etching non-seaplanes. [00:10:24] Speaker 02: What figure 2 is, it's an example of crystallographic etching. [00:10:28] Speaker 02: It's an embodiment of claim 13. [00:10:31] Speaker 02: To be sure, there are other claims that require etching non-seaplanes crystallographically. [00:10:37] Speaker 02: And figure two would not be an embodiment of those claims. [00:10:40] Speaker 02: But nonetheless, it's an example of crystallographic etching. [00:10:43] Speaker 02: The difference between what Dr. Schubert discovered, thought he had discovered, and what was in the prior art was applying the initial etching step to expose those non-sea planes. [00:10:54] Speaker 02: There's no dispute that that's met by Akasaki. [00:10:57] Speaker 00: Can you remind me, did you argue claim 13 and these other claims separately? [00:11:01] Speaker 00: Or did you argue all your claims together? [00:11:03] Speaker 02: We argued all of them together. [00:11:05] Speaker 02: And the reason is, [00:11:06] Speaker 02: that figure two is an example of crystallographic etching. [00:11:10] Speaker 02: That's a term that's recited in all of the claims. [00:11:13] Speaker 02: And so there was no reason to distinguish claim 13. [00:11:17] Speaker 02: But there was an argument made by Dr. Schubert that figure two was not an embodiment. [00:11:23] Speaker 02: I was simply in response to Judge Stike's question. [00:11:26] Speaker 02: It is an embodiment of some of the claims. [00:11:27] Speaker 02: But it's an example of crystallographic etching. [00:11:30] Speaker 02: And that applies to all of the claims. [00:11:32] Speaker 02: And that was the error that the board made [00:11:34] Speaker 02: in excluding, after they said a defect etching could be encompassed, and then excluding the very defect etching that's described in the 475 patent. [00:11:43] Speaker 03: Let me tell you what the problem is. [00:11:46] Speaker 03: It seems to me that this description of figure 2 in the patent and the testimony and other material that you refer us to is not exactly crystal clear on its face. [00:11:58] Speaker 03: And under those circumstances, and without [00:12:02] Speaker 03: clear expert testimony supporting your position, it seems to me difficult to say that the board's decision is not supported by substantial evidence. [00:12:12] Speaker 02: So, Your Honor, on this issue, which is a claim construction issue, there is no deference to the board. [00:12:17] Speaker 02: It's a legal issue, and the... I don't know that it's a claim construction issue. [00:12:25] Speaker 02: Whether crystallographic etching embraces etching of defects [00:12:29] Speaker 02: was treated by the board as a claim construction issue. [00:12:32] Speaker 03: Well, they said that it could, and it looked to see whether in this instance it did. [00:12:37] Speaker 02: And the exercise of applying its construction, which was reached without discussing the specification, to Figure 2, is a claim construction exercise. [00:12:49] Speaker 02: That is not an issue on which the board gets any deference. [00:12:52] Speaker 02: That's [00:12:52] Speaker 02: issue of what does the intrinsic evidence teach about what the proper claim construction should be. [00:12:58] Speaker 02: It should have been considered in the claim construction section, and it's disfavored to exclude embodiments. [00:13:04] Speaker 02: To the extent that there is a lack of clarity here, it was on Dr. Schubert to show that figure two was something that was distinguished from being part of the invention. [00:13:14] Speaker 02: It's described as something the applicants have now observed. [00:13:18] Speaker 02: That's the exact language in column three. [00:13:21] Speaker 02: It's at line 35. [00:13:23] Speaker 02: Applicants have now observed the formation of edge pits. [00:13:28] Speaker 02: This is something that they consider to be a part of their invention. [00:13:30] Speaker 02: It was claimed explicitly in claim 13. [00:13:32] Speaker 02: Dr. Schubert has identified nothing in the intrinsic record that distinguishes figure two and says figure two is not something that is meant to be covered by these patent claims. [00:13:46] Speaker 02: There's nothing in the prosecution history that indicates that figure two shouldn't be covered. [00:13:50] Speaker 02: It's not labeled prior art, which it should be under the NPEP, if that's what it was supposed to be a description of. [00:13:57] Speaker 02: And it's not described in the plain language here as something that's prior art. [00:14:01] Speaker 02: It's described as something that's part of the invention. [00:14:03] Speaker 02: Applicants have now observed. [00:14:06] Speaker 02: They were discussing the new crystallographic etching solutions that they had described in the prior paragraph. [00:14:12] Speaker 02: And they were using Figure 2 to illustrate the application of these solutions. [00:14:15] Speaker 03: So this is also clear. [00:14:15] Speaker 03: Why didn't you have an expert declaration that made it clear? [00:14:19] Speaker 02: Your Honor, we did have an expert declaration that made it clear. [00:14:23] Speaker 02: The expert declaration was referenced in our petition. [00:14:28] Speaker 02: It was referenced as well throughout the briefing before the PTAB. [00:14:34] Speaker 02: The board chose not to rely on it. [00:14:36] Speaker 02: The board addressed the intrinsic evidence. [00:14:40] Speaker 02: The intrinsic evidence is clear and in our favor here. [00:14:44] Speaker 02: because there is nothing to indicate that figure two was excluded. [00:14:47] Speaker 02: Indeed, figure two is consistent with the extrinsic evidence that wasn't created especially for the PTAB. [00:14:55] Speaker 02: There was evidence from two technical treatises that described etching the pits just like here in the 475 pattern as crystallographic etching. [00:15:06] Speaker 02: I can give the appendix sites to those two treatises as well, as well as a prior art reference, [00:15:13] Speaker 02: that was referenced in the provisional application that the applicant submitted, that also shows etching of defects and calls it creating hexagonal etch bits, crystallographic etch bits. [00:15:26] Speaker 03: OK. [00:15:26] Speaker 03: You're into your rebuttal time. [00:15:28] Speaker 03: Do you want to save the rest of it? [00:15:29] Speaker 03: Yes, Your Honor. [00:15:30] Speaker 03: We'll give you two minutes. [00:15:31] Speaker 03: Thank you, Your Honor. [00:15:39] Speaker 03: Mr. Leda, is that how you pronounce it? [00:15:41] Speaker 01: Yes, Your Honor. [00:15:42] Speaker 01: Good morning. [00:15:43] Speaker 01: May I please report? [00:15:45] Speaker 01: There was no gloss on the claim construction decision that the board made. [00:15:51] Speaker 01: The board was very clear about what it said. [00:15:53] Speaker 01: You had to have etching that was dictated by the crystal planes of the material. [00:15:58] Speaker 01: And at pages 17 to 18 of their decision, they clearly held that that wasn't found. [00:16:04] Speaker 03: And if we... What is the issue here, whether the defect sites have a crystal structure? [00:16:10] Speaker 01: Actually not, Your Honor. [00:16:12] Speaker 01: That's an issue for a different day because the references that were not instituted on, Kazawa, Theyer, some of these others, that the petitioner has continually injected into the proceeding all the way up into this appeal, they deal, Kazawa does, for example, with defects in the material itself. [00:16:34] Speaker 01: Veier is a bulk GAN material made under high pressure where our expert testified that it didn't show crystallographic etching at that position, even though that wasn't instituted on. [00:16:46] Speaker 01: But there's been a lot of time spent in the proceeding on it so that petitioner can try to raise those issues later. [00:16:53] Speaker 01: In Akasaki, there is no defect etching of the type that's talked about in those references because [00:17:00] Speaker 01: In Akasaki, it's merely debris or, if you will, the crumbs on the table, the damage that's caused by the ion bombardment from the reactive ion etching. [00:17:12] Speaker 01: I thought they were indentations. [00:17:14] Speaker 01: I'm sorry? [00:17:15] Speaker 01: I thought the defect sites were indentations. [00:17:18] Speaker 01: The defect sites in some of the prior art and in figure two are indentations, but the damage that's being discussed in Akasaki [00:17:28] Speaker 01: is not indentations that it's talking about. [00:17:30] Speaker 01: It's talking about this damage that's on the top. [00:17:33] Speaker 01: That's why we call it material A. And so what there's... Well, how do I... Could you show me where in Akasaki that's made clear? [00:17:45] Speaker 01: I don't know that it's... It could be clearer in Akasaki because he doesn't spend much time on this. [00:17:51] Speaker 01: There's no mention of the details of this because he wasn't concerned about it. [00:17:56] Speaker 01: What he says is that, and this is at A631, and for example, in the paragraph where the number above it is 006, that it's taking away the damage layer. [00:18:19] Speaker 01: You know, there's no discussion in Akasaki about [00:18:24] Speaker 01: defects in the material B that we called the epitaxial layer system itself. [00:18:32] Speaker 01: And that's precisely why the board found that there was no evidence of record that material B, or the epitaxial layer system, was etched at all, let alone crystallographically etched. [00:18:47] Speaker 01: And in fact, the petitioner's expert, Dr. Wetzel, at A1319 in the record, [00:18:54] Speaker 01: He testified, I would not know whether they have removed all the damage or not, and therefore I cannot state whether they have even ventured to etch behind damage or not. [00:19:05] Speaker 01: That's at page 164 of his deposition, A1319. [00:19:10] Speaker 01: And so, unlike the situation in Kazawa and some of these other things, or Figure 2, where there's a defect that's an indentation, there's not even a discussion of that in Akasaki, and it appears to be this [00:19:22] Speaker 01: as our expert Dr. Shealy testified, an amorphous layer that's on top of the epitaxial layer. [00:19:30] Speaker 01: And that damage is being removed by whatever action took place. [00:19:40] Speaker 01: The petitioner's position on the appeal, and in this case, has continually rested on fundamental mischaracterizations [00:19:50] Speaker 01: of both the patent and now of the board's decision. [00:19:53] Speaker 01: And so let's start with the invention itself. [00:19:57] Speaker 01: They say that somehow the invention is not about crystallographic etching, but a fair reading of columns three and four of the patent will show you as well as... Do you understand them to be assuming that it's about crystallographic etching? [00:20:11] Speaker 01: I'm sorry. [00:20:12] Speaker 01: I just didn't hear you. [00:20:12] Speaker 03: I didn't hear them say it wasn't about crystallographic etching. [00:20:16] Speaker 01: Well, what they've said in their papers, Your Honor, is that [00:20:18] Speaker 01: They didn't discover crystallographic etching. [00:20:20] Speaker 01: That was known in the art by Kozawa and these others. [00:20:23] Speaker 03: I don't understand. [00:20:23] Speaker 03: The issue here today is whether this Kawasaki reference shows crystallographic etching or not. [00:20:32] Speaker 03: So everybody agrees that the... Why do you say that they're fundamentally mischaracterizing it? [00:20:37] Speaker 03: Everybody seems to be on the same page as to what the issue is. [00:20:41] Speaker 01: Actually, not, Your Honor. [00:20:43] Speaker 01: They've taken the position that the inventors had a two-step process and that the exposing step was the new thing. [00:20:49] Speaker 03: And the reason why that they've taken that position in their papers is... I'm talking about what they're saying here today, what they're arguing about. [00:20:57] Speaker 03: For you to sort of go into the history, the legislative history of what happened here and say, well, at some point they argue this or argue that. [00:21:07] Speaker 03: Why do we care? [00:21:09] Speaker 01: Let me go to figure two, which you heard certainly today about. [00:21:13] Speaker 01: And this related actually to figure two. [00:21:16] Speaker 01: With respect to figure two, the patent makes clear that figure two is about something that was known. [00:21:22] Speaker 01: It says this was known, that you could etch pits with known etchings in the top surface, but that the sea plane is otherwise impervious to [00:21:38] Speaker 01: to etching. [00:21:39] Speaker 01: And one of the things that puts the lie to their discussion of figure two, which is not an embodiment of the patent, which our expert testified and the board found was not an embodiment, is in column four at lines 60 to 61. [00:21:56] Speaker 01: It states that because the seaplane is impervious to all of the chemicals used in this study, no etch mask is required for the crystallographic etching step. [00:22:06] Speaker 01: Now, I heard counsel say [00:22:08] Speaker 01: that figure two is crystallographic etching of the sea plane. [00:22:12] Speaker 01: But the patent makes it perfectly clear. [00:22:14] Speaker 01: It's never said, that never is stated in the patent. [00:22:17] Speaker 01: Figures five and nine are referred to as the invention. [00:22:20] Speaker 01: But what the patent makes clear is that the top surface, that sea plane top surface is impervious to all agents used in the study. [00:22:29] Speaker 01: So it makes no sense on the one hand to say as they do that figure two represents crystallographic etching. [00:22:35] Speaker 01: And for the inventors to make clear that crystallographic, that the sea plane was impervious to the top surface, was impervious to all agents used in the study. [00:22:46] Speaker 01: And when council talks about other solutions being used, they're not, the inventors weren't claiming those. [00:22:56] Speaker 00: Are you saying that figure two is not showing the sea plane? [00:22:58] Speaker 00: Is that what you just said? [00:23:00] Speaker 01: No, Your Honor. [00:23:01] Speaker 01: What I'm saying is that figure two does show what's described in paragraph, the third paragraph, excuse me, in column three. [00:23:13] Speaker 01: And the legend in column two at about line 43 says what figure two is. [00:23:22] Speaker 01: And it is the top surface. [00:23:24] Speaker 01: It is the seaplane. [00:23:26] Speaker 01: And it does show defect etching in the seaplane, which was in the prior art. [00:23:30] Speaker 01: They say it was previously known. [00:23:33] Speaker 01: And so they would have this court believe that figure two is an invention, even though it's described in the patent as showing something that was previously known. [00:23:43] Speaker 03: Where does it say that? [00:23:45] Speaker 03: Where does it say it was previously known? [00:23:48] Speaker 01: In column four, your honor, line 34, [00:23:56] Speaker 01: well, the full sentences, as described before, I'll go up to that one in a minute, it's been, and if I skip down to that line 34, previously has been shown that these agents can etch- This is column three, not four, right? [00:24:11] Speaker 01: Yeah. [00:24:11] Speaker 01: I'm sorry if I said column four. [00:24:13] Speaker 01: I meant column three. [00:24:14] Speaker 01: Yes. [00:24:14] Speaker 01: Column three, line 34, had previously been shown to etch pits at defect sites in the seaplane of Gann. [00:24:22] Speaker 01: And above that, and again, column three, [00:24:25] Speaker 01: Line 16, 17, 18. [00:24:29] Speaker 01: Molten KOH is known to form pits at dislocations in the sea plane of GaN. [00:24:35] Speaker 01: So this was known. [00:24:37] Speaker 01: They're saying, here's what we saw in our study that accords with the prior art. [00:24:41] Speaker 01: And then they say at the bottom of column four that I said before, by the way, you know, the sea plane, everybody knows, and as we've shown in our own study, is impervious to crystallographic etching. [00:24:52] Speaker 01: So figure two is not an embodiment, and the reason why that they're pressing it is because they want to say that these... Suppose we were to agree with them and say that figure two is an embodiment. [00:25:02] Speaker 03: Do you lose? [00:25:04] Speaker 01: We might lose based on some other art, but we wouldn't lose this appeal because, as I was stating earlier, there is no evidence in the record that shows that either what we call material A, the amorphous damage layer, or material B [00:25:21] Speaker 01: the epitaxial layer system in Akasaki was crystallographically etched. [00:25:26] Speaker 01: In fact, there's no evidence that the epitaxial layer system, which is what has to be etched in Akasaki, was etched at all. [00:25:33] Speaker 00: And that's what the board found as... Because the board said, and you would agree with the board's conclusion, that even if this figure two was an embodiment of your invention, it shouldn't be right into the plank construction. [00:25:44] Speaker 00: Is that your position? [00:25:46] Speaker 01: That's certainly correct, but it was certainly the case that we believe that it's not an embodiment of the invention and that that's a manufacture for this lawsuit. [00:25:56] Speaker 01: But yes, Your Honor. [00:25:58] Speaker 01: And in fact, I also wanted to point out that during the hearing... So just to be clear about it... I'm sorry, Your Honor. [00:26:03] Speaker 03: If we decide that you're wrong about Figure 2 and say that Figure 2 is an embodiment of the claimed invention, where does that leave us? [00:26:13] Speaker 01: For purposes of this appeal, the appeal would have to be affirmed because figure two is actually showing a defect in what figure two shows as our expert testified. [00:26:31] Speaker 03: Try to be clear about this. [00:26:34] Speaker 03: I'm asking you to assume that figure two is an embodiment of the invention. [00:26:38] Speaker 01: Yes. [00:26:39] Speaker 03: And you've argued to the contrary. [00:26:40] Speaker 03: Let's just hypothetically say we decide you're wrong about that. [00:26:44] Speaker 03: Yes. [00:26:44] Speaker 03: Where does that leave us? [00:26:45] Speaker 03: Do you lose then? [00:26:46] Speaker 03: No. [00:26:46] Speaker 03: And if you don't, why do you win? [00:26:50] Speaker 01: The reason why that the appeal would have to be affirmed in that hypothetical situation is because figure two does show a etch pit in the epitaxial layer system. [00:27:02] Speaker 01: And there is etching of the etch bit. [00:27:06] Speaker 01: We know there's at least some etching. [00:27:07] Speaker 01: We don't think it's crystallographic, but there's some etching of what we've been calling material B, the epitaxial layer system. [00:27:14] Speaker 01: Whereas in Akasaki, there is no evidence at all whatsoever. [00:27:19] Speaker 01: Even their expert couldn't say that it happened. [00:27:22] Speaker 01: that there was any etching, let alone crystallographic etching, of material B, the epitaxial layer system. [00:27:28] Speaker 01: And that's why even if figure 2 were wrongly read into the construction. [00:27:32] Speaker 03: Figure layer B is the non-C plane? [00:27:37] Speaker 01: You said layer B, your honor. [00:27:39] Speaker 01: Yes. [00:27:39] Speaker 01: Material B, layer B is the non-C plane. [00:27:43] Speaker 01: In this instance, it would be non-C plane, yes. [00:27:50] Speaker 01: in the case of Akasaki. [00:27:53] Speaker 01: In figure two, there is no discussion of non-C plane because it's simply the etch pit in the top surface of the C plane. [00:28:03] Speaker 01: I was going to mention that in the hearing at the board, and this is at A368, they asked me if defects are etched at the same time that you're etching crystallographically. [00:28:18] Speaker 01: does that mean that there's no crystallographic etching? [00:28:21] Speaker 01: And I said, no, it doesn't mean that. [00:28:23] Speaker 01: So for example, when you're etching a non-seed plane and you're doing it crystallographically, these materials, even when they're well-made, have different kinds of defects in them, like dislocations from the mismatch between the substrate and the lattice that grows on top. [00:28:39] Speaker 01: That's different from a defect pit or an etch pit. [00:28:43] Speaker 01: Anyway, if etching continues along [00:28:46] Speaker 01: in the non-C plane and it is crystallographic and it also etches a defect. [00:28:51] Speaker 01: I said, and the board took it into consideration, that that doesn't mean there's no crystallographic etching going on. [00:28:57] Speaker 01: It's just that it goes by the defect and then continues on its crystallographic way. [00:29:02] Speaker 01: So the board never held or never viewed this case as that you can't have crystallographic etching in the presence of defects. [00:29:12] Speaker 01: That was never said by them, and because of the colloquy that we had at the hearing at A368, it's clear that they were in mind of what our position was on that. [00:29:22] Speaker 01: I would just note that looking at Akasaki, and just focusing on that for a minute here, [00:29:40] Speaker 01: There was, as the board had ample reason to find, there was no express disclosure of crystallographic etching or even crystal planes in Akasaki. [00:29:49] Speaker 01: There was no data showing that. [00:29:52] Speaker 01: The smoothness that it referred to or the making of square or parallel ends was clearly caused by the dry etching. [00:30:00] Speaker 01: And all Akasaki talks about is the removal of damage. [00:30:04] Speaker 01: So we end up at inherency and really the best, as you heard today, [00:30:10] Speaker 01: that OSRAM, the petitioner can say, is that a KOH solution was used. [00:30:16] Speaker 01: But we don't know what the concentration was. [00:30:18] Speaker 01: And there's simply no evidence, no data, nothing of any kind to indicate that the crystallographic etching occurred with respect to the epitaxial layer system, or even that it was etched at all. [00:30:31] Speaker 01: And the board made those findings. [00:30:33] Speaker 01: They're subject to the substantial evidence rule. [00:30:35] Speaker 01: And that's why this particular appeal should be affirmed, Your Honor. [00:30:39] Speaker 01: And with respect to these other issues, our expert testified, just to put that into the... OK, I think we're out of time. [00:30:46] Speaker 03: Thank you, Mr. Levin. [00:30:47] Speaker 03: Thank you, Your Honor. [00:30:59] Speaker 03: I think Mr. Sanders has two minutes. [00:31:04] Speaker 02: Your Honor, first to address the issue of if this court finds that [00:31:08] Speaker 02: Figure 2 was improperly excluded from the board's construction. [00:31:13] Speaker 02: Then, necessarily, a broader construction should have been applied. [00:31:16] Speaker 02: That, at minimum, entitles us to a remand to get consideration under that construction. [00:31:22] Speaker 02: We would submit that reversal is proper, but at minimum, we would be entitled to a remand. [00:31:26] Speaker 02: Your Honor asked earlier about our expert testimony. [00:31:30] Speaker 02: Our expert goes through both the intrinsic and extrinsic evidence in detail at A, [00:31:35] Speaker 02: 1126 through 1131 discussing figure two, discussing the 1987 reference that refers to crystallographic etch pits. [00:31:47] Speaker 02: So that expert testimony explains the specification as well as the extrinsic evidence. [00:31:56] Speaker 02: It's clear that figure two. [00:31:59] Speaker 02: What page is that? [00:32:00] Speaker 02: 1126 begins the section. [00:32:02] Speaker 02: Which one? [00:32:03] Speaker 02: It's in the only volume, yes, volume one, through 1131. [00:32:07] Speaker 02: It's right at the start of the declaration, paragraphs five through 14. [00:32:19] Speaker 02: In paragraph nine at A 1128, our expert expressly says, the passage above describes, that's the passage that we're looking at from the specification in column three. [00:32:31] Speaker 02: The passage above describes and figure two shows an example of crystallographic etching. [00:32:35] Speaker 02: The board's construction covers this example in the specification, which I believe is proper. [00:32:39] Speaker 02: Of course, the board reached a contrary conclusion in the final decision. [00:32:43] Speaker 02: And then the extrinsic evidence is discussed at 1130 to 1131. [00:32:46] Speaker 02: That 1131 shows the 1987 text. [00:32:51] Speaker 02: It extracts the crystallographic etchpits shown on the page. [00:32:54] Speaker 02: In the caption, they're called crystallographic etchpits. [00:32:58] Speaker 02: It was well appreciated by those skilled in the art that crystallographic etching embraced etching of defects. [00:33:04] Speaker 02: And the board never considered whether etching through damage is crystallographic. [00:33:10] Speaker 02: It had said at the time of institution, we have construed crystallographic etching in a way that does not preclude etching that removes damage. [00:33:17] Speaker 02: And then the board went and reached a contrary conclusion in its final decision because the board improperly excluded etching of defects. [00:33:25] Speaker 02: from its construction by adding a gloss in the invalidity section of its opinion about Figure 2.