[00:00:03] Speaker 05:
The first case this morning is Consolidated Appeal for Purposes of Argument 15-1408 and 15-1409, Pentair Water Pool and Spa vs. Hayward Industries.

[00:00:17] Speaker 05:
Mr. Boland, whenever you're ready.

[00:00:30] Speaker 02:
Glad to see you brought some water with you.

[00:00:32] Speaker 02:
Thank you.

[00:00:34] Speaker 03:
Whenever I get started, I run a little dry.

[00:00:38] Speaker 03:
No pun intended there, but once I get going.

[00:00:43] Speaker 03:
Good morning.

[00:00:44] Speaker 03:
May it please the Court?

[00:00:45] Speaker 03:
I'm Mark Boland and represent the appellant, Pentair.

[00:00:48] Speaker 03:
Today we respectfully ask the Court to reverse the judgment of the Patent Office Board that Claim 12 would have been obvious over the Rasmussen and Mueller references applied.

[00:01:01] Speaker 03:
Given the time, I'm just going to focus on a few key points today.

[00:01:07] Speaker 03:
Claim 12 at issue relates to a pump for aquatic applications, and the typical applications are described in column three of the patent.

[00:01:17] Speaker 03:
They're pools, they're spas, it can be a landscape pond.

[00:01:22] Speaker 03:
And so the pump is here, the reservoir is here, and the pump, when it's turned on, it will suck water into the cavity.

[00:01:31] Speaker 03:
There's a blade inside the pump that will then begin to pump the water to an output pipe.

[00:01:40] Speaker 05:
So just in the interest of time, so your position is it's limited, this word priming is limited to just the startup operation.

[00:01:48] Speaker 03:
Yes.

[00:01:49] Speaker 05:
And the board concluded that no, it was not so limited.

[00:01:52] Speaker 05:
So what's the best you can do?

[00:01:54] Speaker 05:
Is it figure four in the specification?

[00:01:57] Speaker 05:
What is it you can point to to say that the board was incorrect

[00:02:00] Speaker 05:
in its broadest reasonable interpretation.

[00:02:02] Speaker 03:
Sure, Your Honor.

[00:02:04] Speaker 03:
In the claim construction, first the plain language in claim 12, it discusses achieving prime.

[00:02:13] Speaker 03:
It talks about determining whether the pump is primed, and it calls for a maximum prime in-time allotment.

[00:02:21] Speaker 03:
The ING clearly signifies achieving prime, going from a non-prime state to a prime state.

[00:02:28] Speaker 04:
Isn't that your problem?

[00:02:29] Speaker 04:
You yourself just stated

[00:02:30] Speaker 04:
achieving prime any time in the operation.

[00:02:34] Speaker 04:
No, I meant in the startup phase.

[00:02:36] Speaker 04:
But if you did say during the operation.

[00:02:39] Speaker 02:
Yes, sir.

[00:02:40] Speaker 02:
What about your testimony by your expert, Dr. Woolley, who says, in answer to your question, it refers to any time that the flow rate gets below a certain level.

[00:02:52] Speaker 03:
I believe that testimony may have been discussing Rasmussen, if I'm not correct, Your Honor, but in the 479 patent, there's

[00:03:00] Speaker 03:
If you look at the board's construction, it said three things.

[00:03:03] Speaker 03:
It said at restart, at startup, at restart, and when a loss of prime condition is determined.

[00:03:13] Speaker 03:
And I'm reading from page 19 of our brief.

[00:03:15] Speaker 03:
So three things, okay?

[00:03:18] Speaker 03:
The 479 patent clearly discloses a startup routine with the priming.

[00:03:24] Speaker 03:
The 479 patent does not disclose a restart.

[00:03:27] Speaker 03:
There is no automatic restart.

[00:03:30] Speaker 03:
So any start is going to be back to the beginning to press the start button.

[00:03:37] Speaker 03:
Third, when a loss of prime condition is determined, okay, and consider that in connection with Hayward's arguments that that's in the context too of having a maximum priming time allotment.

[00:03:51] Speaker 03:
There's no disclosure in the specification of that particular type of embodiment.

[00:03:58] Speaker 03:
There's no

[00:03:59] Speaker 03:
determination of a loss of prime, where a clock would start and say, okay, now you have a predetermined amount of time to regain the prime.

[00:04:09] Speaker 05:
Well, isn't there some stuff in the spec, even with respect to Figure 4, that refers to begins repetitive operation and is repeated, which suggests it's not exclusively at startup?

[00:04:21] Speaker 03:
Yes, Your Honor, that language does appear, and it's only in the context of the startup routine as described in Figure 4A.

[00:04:28] Speaker 03:
And in our briefs, if you'll recall, we have figure 4a with a red box for the startup routine, and there's some additional disclosure of that lower right-hand corner, the green box.

[00:04:39] Speaker 03:
The red box contains a diamond, 410.

[00:04:42] Speaker 03:
That's the only place where there's an actual comparison of the flow to a predetermined priming flow value.

[00:04:52] Speaker 03:
The only place.

[00:04:54] Speaker 03:
So the board's construction reads on subject matter that's not disclosed.

[00:04:59] Speaker 03:
And in any claim construction analysis, of course, one of the fundamental goals is to determine what was invented here.

[00:05:07] Speaker 03:
How can we align the claim with the intrinsic evidence?

[00:05:11] Speaker 03:
The specification and the prosecution history, of course.

[00:05:15] Speaker 03:
And when everything is said and done, the language by itself, read in light of the specification,

[00:05:22] Speaker 03:
where this is the only embodiment.

[00:05:24] Speaker 03:
What about Read in Light of Claim 13?

[00:05:26] Speaker 03:
Yes.

[00:05:27] Speaker 03:
Claim 13, Your Honor, uses slightly different language.

[00:05:32] Speaker 03:
The alarm that's triggered in Claim 13 is a priming dry alarm.

[00:05:38] Speaker 03:
The alarm that's triggered in Claim 12 is a priming alarm.

[00:05:43] Speaker 03:
Claim 13 doesn't have a maximum priming time allotment.

[00:05:47] Speaker 03:
The root word, prime, or variance of it appear in both claims.

[00:05:52] Speaker 03:
But the law is clear.

[00:05:54] Speaker 04:
Doesn't Claim 13 teach that the system is checking whether the system is primed, and this continues even after the max priming time?

[00:06:08] Speaker 03:
I would respectfully disagree with that, Your Honor.

[00:06:11] Speaker 03:
And if, again, you turn to the image of Figure 4A,

[00:06:18] Speaker 03:
In the startup routine represented in red, and this is page nine of our reply brief, the diamond 410 is the only place where there's an actual comparison of flow to a predetermined priming flow value.

[00:06:34] Speaker 03:
In the claim 13 embodiment, which I've got marked in green here, which occurs during normal operation as part of the filter algorithm,

[00:06:49] Speaker 03:
What's being measured there is shaft power.

[00:06:53] Speaker 03:
The controller is determining the shaft power.

[00:06:57] Speaker 03:
If during normal operation it senses the shaft power is approaching zero for 10 seconds, a priming dry alarm can go off and then the system is interrupted according to the specification.

[00:07:11] Speaker 03:
That is not a comparison with prime.

[00:07:14] Speaker 03:
That's perhaps

[00:07:16] Speaker 03:
There's never a determination in normal operation that prime has been lost.

[00:07:22] Speaker 03:
There's a determination at some point that the blade can be spinning in air and have negligible torque.

[00:07:29] Speaker 03:
And therefore, it senses that's almost zero shaft power.

[00:07:33] Speaker 03:
And one of the things that the patent seeks to avoid is running in air.

[00:07:38] Speaker 02:
And therefore... Why else would it be running in air other than that it's lost prime?

[00:07:47] Speaker 03:
Well, it can lose prime because of, say, there's a blockage in the intake system.

[00:07:56] Speaker 03:
And the system is designed to detect that.

[00:07:58] Speaker 03:
And when it's running at zero shaft power for 10 seconds, it will trigger this priming dry alarm, which is different than the routine at startup where the system runs.

[00:08:12] Speaker 03:
It does this repetitive comparison of flow rate versus priming flow rate.

[00:08:17] Speaker 03:
very quickly and if it reaches prime within the allotted time it goes down to figure 4B and enters the normal operation.

[00:08:26] Speaker 03:
If it doesn't, the box all the way to the left says trigger the priming alarm or dry and the system will then, the alarm goes off and according to the specification the process is interrupted.

[00:08:40] Speaker 05:
Did you try to amend the claim at all during the proceeding?

[00:08:45] Speaker 03:
I don't believe so, Your Honor.

[00:08:49] Speaker 03:
And turning to Rasmussen, the main reference, our position is that even if the broadest, even if the board's claim construction is upheld, and even if the combination of references is applied, Rasmussen is fundamentally different.

[00:09:09] Speaker 03:
Rasmussen discusses a down-hole pump that's submerged into a well.

[00:09:16] Speaker 03:
And if you read the text and look at figure one, you'll see the pump down underneath the fluid level, and it's got an opening in the bottom 20.

[00:09:24] Speaker 03:
So it draws water in automatically when it's submerged.

[00:09:27] Speaker 03:
These are called self-priming pumps.

[00:09:30] Speaker 03:
When Rasmussen starts up, the control logic that's Rasmussen's invention is turned off.

[00:09:37] Speaker 03:
So if the claim is limited to start up or restart, there's a clear distinction over Rasmussen.

[00:09:45] Speaker 03:
The control logic for determining whether the flow rate has dipped below the set point is inoperable.

[00:09:54] Speaker 03:
So when Rasmussen's critically analyzed, the only aspect of the board's claim construction that's relevant or even potentially relevant is the loss of prime determination.

[00:10:08] Speaker 03:
And in that particular aspect of the construction, Rasmussen never discloses

[00:10:15] Speaker 03:
a loss of prime determination.

[00:10:17] Speaker 04:
Is this during startup?

[00:10:20] Speaker 04:
Pardon?

[00:10:22] Speaker 04:
It does not detect the loss of prime.

[00:10:25] Speaker 04:
Is it only during startup?

[00:10:27] Speaker 04:
Is that what Rasmussen teaches?

[00:10:29] Speaker 03:
So Rasmussen, your honor, has the pump down below.

[00:10:33] Speaker 03:
It pumps the well fluid, which is crude oil, typically up top, and it's got a physical flow meter.

[00:10:41] Speaker 03:
It's determining the flow rate, gallons per minute, for example.

[00:10:45] Speaker 03:
And what Rasmussen does is say, I have a predetermined set point.

[00:10:50] Speaker 03:
When that flow drops below a predetermined value and stays there for a certain amount of time, shut down.

[00:10:59] Speaker 03:
So there's no damage to the pump below.

[00:11:02] Speaker 04:
But help me understand this.

[00:11:05] Speaker 04:
Are you saying that Rasmussen does not read on claim 12 because Rasmussen does not detect prime at startup?

[00:11:16] Speaker 03:
under a limited construction if this court finds that the construction is limited to startup.

[00:11:22] Speaker 03:
Yes, that's true.

[00:11:23] Speaker 03:
But even under the broader construction... Let's say we find the broader construction.

[00:11:27] Speaker 03:
Under the broader construction, Rasmussen is equally irrelevant because startup is one thing.

[00:11:34] Speaker 03:
Restart is the next aspect of the construction.

[00:11:38] Speaker 03:
Rasmussen states at the bottom of column two, at restart,

[00:11:42] Speaker 03:
which is again a manual restart.

[00:11:44] Speaker 03:
There's no automatic restart.

[00:11:46] Speaker 03:
That control logic is shut down there as well.

[00:11:50] Speaker 03:
So we're into the third component.

[00:11:52] Speaker 03:
When a loss of prime is determined.

[00:11:56] Speaker 03:
Rasmussen is not determining loss of prime.

[00:11:59] Speaker 05:
It's only a loss of flow, which can be for... As long as it discloses a shutoff due to a low flow rate, then who cares?

[00:12:09] Speaker 05:
then why isn't that sufficient?

[00:12:10] Speaker 03:
Well, Your Honor, the low flow rate can be due to all of the items summarized in our brief.

[00:12:16] Speaker 03:
You can have contamination, rocks, sludge entering that pump from the well fluid.

[00:12:21] Speaker 03:
And those can physically block the blade.

[00:12:25] Speaker 03:
So the flow rate dips.

[00:12:27] Speaker 03:
And because the pump is submerged, it's still fully primed.

[00:12:32] Speaker 03:
So when Rasmussen's alarm goes off at the control board, there's a LED light.

[00:12:37] Speaker 03:
One goes off when it drops below the set point and one goes off when the pump gets shut off.

[00:12:43] Speaker 03:
No one knows the reason.

[00:12:45] Speaker 03:
And the claim says determining a loss of prime.

[00:12:50] Speaker 03:
Rasmussen doesn't make that determination.

[00:12:52] Speaker 03:
It doesn't make a diagnosis at all.

[00:12:57] Speaker 05:
And that's our... Why don't you move on to the second issue?

[00:13:00] Speaker 05:
I'll move on to the second one.

[00:13:03] Speaker 03:
The second one, Your Honor.

[00:13:12] Speaker 03:
What we have in the 051 patent, claim one, again it's a smart pump and it's programmed to do various things.

[00:13:21] Speaker 03:
One of them is to operate in a limp mode.

[00:13:23] Speaker 03:
A limp mode is a state of operation at reduced or comprised levels.

[00:13:31] Speaker 03:
And under the board's construction, that means at reduced power or at reduced speed to achieve a reduced power.

[00:13:41] Speaker 03:
If you turn to

[00:13:43] Speaker 03:
the Struthers reference.

[00:13:48] Speaker 03:
At page two of our reply brief, we summarized the various aspects of Struthers.

[00:13:56] Speaker 03:
So in the 051, when a problem's detected of the nature that's disclosed, like a lightning surge, you can call it voltage, or current inside the motor to go out of whack, or there can be an overheating situation.

[00:14:11] Speaker 03:
It's programmed to enter the limp mode.

[00:14:15] Speaker 03:
In struthers, the pump states can be an empty tank, the tank level's too high, there can be overheating.

[00:14:24] Speaker 03:
In each of those situations, struthers shuts down the pump or just triggers an alarm.

[00:14:29] Speaker 03:
So the only focus on struthers that was presented below was really this clog removal process.

[00:14:38] Speaker 02:
Well, Struthers addresses a relationship between torque and speed, right?

[00:14:45] Speaker 03:
It certainly does, Your Honor.

[00:14:47] Speaker 03:
And what it teaches is that when there's a physical clog, put that motor into an aggressive state to attack it with the blade.

[00:14:56] Speaker 03:
So it develops a low torque, a heavier force grinding through the clog.

[00:15:01] Speaker 03:
And to get that low torque, excuse me, the high torque,

[00:15:08] Speaker 03:
extra force you want to grind through it, you have to reduce the speed to allow the torque to go up so that power is a function of torque times speed.

[00:15:19] Speaker 03:
So in the aggressive Struthers mode, there's only a disclosure of the high torque and low speed embodiment.

[00:15:33] Speaker 03:
Let's search for the questions.

[00:15:34] Speaker 03:
I'll save the remaining time for rebuttal.

[00:15:38] Speaker 00:
May it please the Court?

[00:15:57] Speaker 00:
I'll begin with the 051 patent.

[00:16:02] Speaker 01:
The central issue in the 051 patent, as Your Honors know, is

[00:16:07] Speaker 01:
the meaning of the term limp mode and the teachings of the reference struthers with respect to limp mode.

[00:16:13] Speaker 01:
The board's construction in the final written decision is a restatement of its construction from the institution decision.

[00:16:24] Speaker 01:
Under both of those constructions and under any construction that's true to the BRI standard, we submit that the board was correct in

[00:16:34] Speaker 01:
finding that Struthers teaches the Lent Mode.

[00:16:37] Speaker 04:
Why did the board change its construction in this patent from the initial to the final determination to include the phrase to achieve a reduction in power?

[00:16:49] Speaker 01:
I think that's a very good question.

[00:16:52] Speaker 01:
And if one was to look literally at the final written decision, they said that they looked at what the ex parte examiner had said during the ex parte prosecution.

[00:17:02] Speaker 01:
And while it was true that the ex parte examiner did say reduce speed state, reduce power state, it was the board's perception that the ex parte examiner had seen some type of association between limp mode and power.

[00:17:17] Speaker 01:
Simultaneously in parallel with that, we believe that the board was trying to be responsive to a point that Penter made, which is a very inviting point, which is while under the original construction,

[00:17:31] Speaker 01:
if a user walks over to their variable speed pump and changes the speed from a high speed to a low speed, is that going to be a limp mode?

[00:17:38] Speaker 01:
And I think that responsive to that, and again, following their perception that the examiner associated limp mode with power, they restated their construction.

[00:17:50] Speaker 01:
Now, what's interesting is that the discussion of the ex parte examiner, where he espouses his understanding of the meaning of limp mode, was in his discussion

[00:18:01] Speaker 01:
of his belief that Struthers taught a limp mode.

[00:18:03] Speaker 01:
So it's not just that the board believes that Struthers teaches a limp mode.

[00:18:07] Speaker 01:
It's also that the ex parte examiner believes that a limp mode is taught by Struthers.

[00:18:13] Speaker 01:
And in that same passage of the final written decision, where the board discusses how their restatement of the construction was inspired by the ex parte examiner, they mention that it's consistent with Pantir's expert's testimony about the meaning of the word limp mode.

[00:18:31] Speaker 01:
their expert understands lit mode to mean.

[00:18:33] Speaker 01:
And interestingly, in the copending litigation, twice, once at A5770 and once at A5856, their expert admitted Struthers teaches a lit mode.

[00:18:47] Speaker 01:
So the evolution of the term lit mode is helpful to understand.

[00:18:51] Speaker 01:
At the end of the day, the source text, of course, is the specification, and with deference to the prosecution history, of course.

[00:19:01] Speaker 04:
And I think there are three key locations in the specification and the file history that we can look to that actually talk about the Lint Mode and what it means aside from just... Why don't you point to the specification where it teaches the added limitation in the final decision to achieve a reduction in power?

[00:19:21] Speaker 01:
I don't see that in the specification, Your Honor.

[00:19:25] Speaker 01:
I do see column two lines one through seven where the Lint Mode is described

[00:19:30] Speaker 01:
using and slash or, reducing voltage and or frequency.

[00:19:36] Speaker 01:
Now everybody agrees that frequency here is a reference to speed.

[00:19:40] Speaker 01:
So reducing the voltage and or the frequency.

[00:19:43] Speaker 01:
Now column 18, lines 19 through 24, we get the other reference where they're talking about limp mode and actually explaining what it means.

[00:19:51] Speaker 01:
And that's where they say it's reducing at least one or both of voltage or the frequency.

[00:19:58] Speaker 01:
A third location that's extremely instructive is in the parent application, which went on appeal to the board.

[00:20:05] Speaker 01:
And by the way, the claim construction on that appeal to the board was the initial claim construction in this case, reduced power state, reduced speed state.

[00:20:14] Speaker 01:
But in that appeal to the board of the parent case, which is incorporated by reference into this case, the first independent claim, which appears in this record, is claim 18 because of just the documents that are in the record here.

[00:20:27] Speaker 01:
Pentair claimed something to the effect of reducing at least one of the voltage and the frequency in order to drive the motor in a limp mode to clear a foreign object obstruction.

[00:20:40] Speaker 01:
So, you know, we can talk about the technological concepts or we can talk about the labels, the words that are on them, but what we see in that claim in the parent application, this is a divisional, it's the same spec, is a claim to reducing the speed

[00:20:58] Speaker 01:
to clear a clock.

[00:21:00] Speaker 01:
That's exactly what Struthers teaches.

[00:21:03] Speaker 01:
So, Your Honors, if I might, I would point to the Board's claim construction.

[00:21:11] Speaker 01:
Of course, claim construction is de novo, but if we were going to stay with the Board's ultimate claim construction, it's two disjunctive prongs.

[00:21:21] Speaker 01:
It's a reduced power state or

[00:21:25] Speaker 01:
a reduced speed state to achieve a reduction in power.

[00:21:30] Speaker 01:
If we're going to avoid eviscerating one of those prongs, we have to understand each prong to have a different meaning.

[00:21:36] Speaker 01:
A reduced speed state is not a reduced power state.

[00:21:38] Speaker 01:
A reduced speed state to achieve a reduction in power is exactly what's happening in Struthers.

[00:21:44] Speaker 01:
In the background of the invention, Struthers talks about reducing the speed for the purpose of avoiding an overload.

[00:21:52] Speaker 01:
An overload is too much power.

[00:21:54] Speaker 01:
This thing, if you don't keep the system in check, the power is going to go up.

[00:22:00] Speaker 01:
It's going to overheat.

[00:22:01] Speaker 01:
You're going to have a big problem.

[00:22:04] Speaker 01:
Our expert, Professor Amati, testified at A6209, A62 to A62010.

[00:22:11] Speaker 01:
This is exactly what's happening in Struthers.

[00:22:14] Speaker 01:
Now, everyone seems in agreement here that power equals torque times speed.

[00:22:20] Speaker 01:
Power equals torque times speed.

[00:22:22] Speaker 01:
So you have two variables.

[00:22:23] Speaker 01:
If speed is constant and fixed, and you don't change the speed, when the torque goes up, the power is going to shoot up.

[00:22:32] Speaker 01:
It's going to shoot up.

[00:22:33] Speaker 01:
Left unchecked, this torque is going to cause the power to go way up.

[00:22:37] Speaker 01:
It's going to overload.

[00:22:38] Speaker 01:
It's going to overheat, exactly like what's in the background of the invention in Struthers.

[00:22:42] Speaker 01:
But when that torque starts going up by virtue of there being a clog, in order to prevent this power from shooting way up,

[00:22:50] Speaker 01:
The speed is throttled down and the motor is allowed to limp along slowly.

[00:22:55] Speaker 01:
And here we have a situation where we have a reduced speed state that's achieving a reduced power relative to what the power would have been.

[00:23:06] Speaker 01:
It's right there in Struthers, Your Honors.

[00:23:09] Speaker 05:
Can I take this after the 479 patent?

[00:23:11] Speaker 05:
Sure.

[00:23:13] Speaker 05:
Where you began was appropriately with the broadest reasonable interpretation, because that's the current state of the law about what standing concerns some of us has raised at that.

[00:23:21] Speaker 05:
In this particular circumstance, do you see a difference between the most reasonable interpretation and the broadest reasonable interpretation with regard to priming?

[00:23:30] Speaker 01:
With regard to priming?

[00:23:32] Speaker 01:
No, I apologize, Your Honor.

[00:23:36] Speaker 01:
Say that question again.

[00:23:37] Speaker 01:
I want to make sure I understand.

[00:23:38] Speaker 05:
OK, we're looking.

[00:23:39] Speaker 05:
We're applying the standard of broadest reasonable interpretation, which is the standard that the board appropriately applied in construing the claim.

[00:23:47] Speaker 05:
Is there a difference, in your view, with respect to the board's selection of the broadest reasonable interpretation and what would otherwise be the most reasonable interpretation under a straightforward claim construction that doesn't implicate broadest reasonable interpretation?

[00:24:02] Speaker 01:
And we're talking about the 479 claim 12?

[00:24:06] Speaker 01:
No, I think under any standard, Claim 12 means exactly what it says.

[00:24:12] Speaker 05:
And I believe... Well, you don't think there's some ambiguity?

[00:24:18] Speaker 01:
In 479?

[00:24:18] Speaker 01:
Yeah.

[00:24:19] Speaker 01:
No, I think the verb tense is very clear.

[00:24:22] Speaker 01:
I think it says, is primed, and I think it says, is not primed.

[00:24:27] Speaker 01:
There was some reference

[00:24:28] Speaker 05:
But if we look at Figure 4, your friend makes an argument that the only disclosure there with respect to Figure 4 is only in connection with the start-up.

[00:24:38] Speaker 01:
Well, he also started to talk about there was a suggestion that the word ing is in Claim 12, but it's not in Claim 13.

[00:24:49] Speaker 01:
I don't know if I misheard that, but I do see that word in Claim 13, actually.

[00:24:55] Speaker 01:
And Claim 13 is directed towards a loss of crime.

[00:24:59] Speaker 01:
So to say that there's no disclosure of loss of prime in the specification of a 479 when claim 13 is admittedly directed towards a loss of prime scenario wouldn't be consistent if that was what Penter was arguing.

[00:25:24] Speaker 01:
So with respect to the 479 patent,

[00:25:29] Speaker 01:
Can I answer your question, Your Honor?

[00:25:31] Speaker 05:
Well, yeah.

[00:25:31] Speaker 05:
But why don't we talk about Claim 12, which is the claimant issue, and where the disclosure there is clear that it goes beyond startup.

[00:25:41] Speaker 01:
Yes.

[00:25:42] Speaker 01:
Well, first of all, again, the issue, I think, is properly framed as whether or not Claim 12 is of sufficient breadth to cover an initial acquisition of prime, after prime never existed.

[00:25:56] Speaker 01:
or a subsequent acquisition of crime after crime had existed and had been lost.

[00:26:02] Speaker 01:
And we've never taken the position that Claim 12 excludes a startup situation.

[00:26:08] Speaker 01:
Our position at Claim 12 is a generic claim that covers multiple species.

[00:26:12] Speaker 01:
And there's certainly no requirement for the specification to teach the species of the prior art for that prior art to render the generic claim unpatentable.

[00:26:23] Speaker 01:
I mean, to require a specification to teach

[00:26:26] Speaker 01:
the prior art would be a little circular.

[00:26:29] Speaker 01:
But even if we go in to the specification of the 479 and we get into detail, at 3 colon 26 through 27, they refer to figures 4a and 4b as one example process.

[00:26:42] Speaker 01:
Now, at 3 colon 38, whereas typically, you know, conventionally, somebody might title this portion of their specification a detailed description of the invention, this is entitled the description of example embodiments.

[00:26:57] Speaker 01:
And of course, we know that a claim can be directed towards certain aspects of the specification and not others.

[00:27:06] Speaker 01:
We don't see recited in claim 12 the moment in time when a clock stops ticking.

[00:27:14] Speaker 01:
We know that there's a clock.

[00:27:16] Speaker 01:
We know it's going to tick.

[00:27:17] Speaker 01:
But there is no anchor.

[00:27:20] Speaker 01:
There is nothing explicitly or otherwise in claim 12

[00:27:25] Speaker 01:
that would require Claim 12 to have that clock start.

[00:27:28] Speaker 04:
There's nothing in Claim 12 that would require a construction of this to go beyond the initial startup.

[00:27:37] Speaker 01:
I think that it's generic language in and of itself.

[00:27:42] Speaker 04:
I mean, you're talking about the plain meaning of the words.

[00:27:45] Speaker 04:
Correct.

[00:27:45] Speaker 04:
Claim 12 does not say, does not contain the restriction that, or the limitation rather, that it goes on beyond

[00:27:54] Speaker 04:
the initial startup.

[00:27:56] Speaker 04:
Absolutely you're correct.

[00:28:00] Speaker 01:
So what the specification does say... Well is that a problem for you?

[00:28:05] Speaker 01:
No, actually the way I understood the question was that claim 12 doesn't include any limitation on any individual species.

[00:28:12] Speaker 01:
That's what I understood the question to be asking.

[00:28:15] Speaker 01:
There's no limitation on claim 12 that it be at startup.

[00:28:18] Speaker 01:
There's no limitation on claim 12 that it be after startup.

[00:28:21] Speaker 01:
There's no limitation.

[00:28:22] Speaker 01:
It can be at any point in the process.

[00:28:25] Speaker 04:
You're arguing that the plain meaning of the words in Claim 12 should take us to beyond the initial startup.

[00:28:36] Speaker 01:
Yes, they cover all time periods.

[00:28:38] Speaker 01:
It covers all time periods.

[00:28:41] Speaker 01:
Where do they say that in Claim 12, all time periods?

[00:28:46] Speaker 01:
Because it doesn't carve out specific time periods for which it's applicable.

[00:28:52] Speaker 04:
So the plain meaning of the word would exclude anything beyond initial start-up?

[00:28:57] Speaker 01:
Actually, no.

[00:28:57] Speaker 01:
The term priming is often used to refer to a loss of prime.

[00:29:03] Speaker 01:
Number one, we see the term priming in Claim 13.

[00:29:06] Speaker 01:
And number two, from the prosecution history, there's a claim of priority to a parent application specifically alleged to apply to Claim 12 in the copending litigation and the proceeding below.

[00:29:22] Speaker 01:
Priorities alleged for claim 12 back to the priority document.

[00:29:26] Speaker 01:
The sole and exclusive reference to prime in the parent document at paragraph 31 is loss of prime.

[00:29:34] Speaker 01:
That's it.

[00:29:35] Speaker 01:
The words loss of prime don't find their origin in any type of analogy to a painter and whether a painter uses the words loss of prime.

[00:29:42] Speaker 01:
They're right there in the file history of this patent.

[00:29:45] Speaker 01:
Your Honor, if I may, at column nine,

[00:29:50] Speaker 01:
lines 29 through 34.

[00:29:51] Speaker 01:
This is described as a priming control, this process.

[00:29:57] Speaker 01:
We sat in a room and looked at their expert, Gary Woolley, and asked him to read out loud the abstract of Rasmussen.

[00:30:05] Speaker 01:
And after he read that, we looked at him and said, and that's a priming control that's not happening at startup.

[00:30:13] Speaker 01:
He said, yes.

[00:30:15] Speaker 01:
His position has been that

[00:30:17] Speaker 01:
There's no concern in Rasmussen about priming control at startup.

[00:30:21] Speaker 01:
Our position is that Rasmussen teaches a loss of prime, and that this claim is not limited in such a respect as it would exclude a loss of prime.

[00:30:30] Speaker 01:
Loss of prime, again, not just our words.

[00:30:33] Speaker 01:
These words come from the file history.

[00:30:35] Speaker 01:
These are concepts that are also covered by Claim 13, which uses the priming language.

[00:30:40] Speaker 01:
And if one looks at Rasmussen A1154, that's nine, column nine lines, A through 18.

[00:30:47] Speaker 01:
It says, when the flow gets too low, display indicates an abnormally low flow indicating more than the usual quantity of gases through the system.

[00:30:56] Speaker 01:
The lights go off, and after the timer, another timer.

[00:31:02] Speaker 05:
Just finish your sentence.

[00:31:03] Speaker 05:
OK.

[00:31:03] Speaker 01:
One set of lights goes off.

[00:31:05] Speaker 01:
When the display indicates abnormally low flow indicating more than the usual quantity of gas, timer starts ticking.

[00:31:12] Speaker 01:
When the timer's done, it elapses.

[00:31:14] Speaker 01:
A new pattern of lights emerges.

[00:31:16] Speaker 05:
And your timer's done.

[00:31:17] Speaker 01:
Thank you.

[00:31:20] Speaker 01:
Thank you, Your Honor.

[00:31:30] Speaker 01:
Your Honor, my colleague advises me that I only just took 15 minutes.

[00:31:39] Speaker 05:
Did we start with 20 or 15?

[00:31:41] Speaker 05:
I can't remember.

[00:31:45] Speaker 05:
We started with 15?

[00:31:48] Speaker 02:
I apologize for that.

[00:31:59] Speaker 05:
Does the court have any questions for me?

[00:32:12] Speaker 01:
If not, I'll sit down.

[00:32:15] Speaker 01:
Thank you.

[00:32:29] Speaker 03:
In the board's claim interpretation in the 479 patent, where you have startup, restart, or when a loss of prime is determined.

[00:32:44] Speaker 03:
At startup, Rasmussen shuts down the control logic.

[00:32:50] Speaker 03:
Whether you call it determining flow or priming, it's shut down.

[00:32:54] Speaker 03:
At restart, it's shut down.

[00:32:56] Speaker 03:
So all left with is a loss of prime determination.

[00:33:00] Speaker 03:
A determination requires a diagnosis.

[00:33:05] Speaker 03:
So when on the control panel, Rasmussen's controller has sensed a loss of flow from the physical flow meter and it sets off one red light, that loss of flow persists for the predetermined time and then the pump gets shut down and a second red light goes off.

[00:33:25] Speaker 03:
No one knows why the light went off.

[00:33:28] Speaker 03:
that cannot be a determination of loss of prime.

[00:33:32] Speaker 03:
Rasmussen says that the low flow can be due to contamination, abrasives, solid deposits.

[00:33:41] Speaker 05:
But I think I asked you the first time around, so maybe you're not understanding the question, or maybe I'm not understanding the answer.

[00:33:47] Speaker 05:
Sure.

[00:33:47] Speaker 05:
Which is, as long as it discloses a shutoff due to low flow rate, why isn't that sufficient?

[00:33:53] Speaker 03:
Because that is not a determination of loss of prime.

[00:33:56] Speaker 03:
The low flow rate

[00:33:57] Speaker 03:
can be due to many different reasons, all described in columns one and two.

[00:34:02] Speaker 02:
Is it zero flow rate?

[00:34:04] Speaker 02:
Let's say it's a zero flow rate.

[00:34:05] Speaker 03:
Yes, sir.

[00:34:06] Speaker 03:
Isn't that a loss of prime?

[00:34:07] Speaker 03:
No, your honor.

[00:34:08] Speaker 03:
In a zero flow rate where a rock has come in and blocked that blade so it can't spin, that pump in Rasmussen is fully primed.

[00:34:17] Speaker 03:
It's like if you're driving a car, your check engine light goes on.

[00:34:22] Speaker 03:
You might feel something wrong with the car or the motor and pull over.

[00:34:25] Speaker 03:
The driver doesn't know what's causing that check engine light.

[00:34:29] Speaker 03:
It's the same thing.

[00:34:30] Speaker 03:
It's as if, say that you had a claim that says, determining if a page... In the example, isn't there a reduction in power at that time?

[00:34:40] Speaker 03:
For the check engine light, Your Honor.

[00:34:43] Speaker 04:
Not necessarily.

[00:34:44] Speaker 04:
I mean, you don't know why, but you stop the car.

[00:34:47] Speaker 04:
Well, at that point, you no longer are at full primer, right?

[00:34:53] Speaker 03:
In my example, the driver could equally have continued driving the car with the check engine light.

[00:34:59] Speaker 05:
My point is... So Rasmussen covers more than the claim.

[00:35:03] Speaker 05:
That doesn't mean it doesn't cover the claim.

[00:35:06] Speaker 03:
Well, Your Honor, with due respect, the claim says a loss of prime is determined.

[00:35:12] Speaker 03:
And our position is there's never such a determination made.

[00:35:16] Speaker 03:
And there's been no evidence put on that that determination was made in Rasmussen.

[00:35:22] Speaker 03:
the claim language, controller determining whether the current flow rate is above a priming flow value in order to determine whether the pumping system is primed.

[00:35:33] Speaker 03:
The pumping system can be fully primed and the flow rate can go to zero because there's a blockage or there's damage to the pump blade because of wear and deposits and the like.

[00:35:46] Speaker 03:
And in all those situations other than transient gas, which may cause a blip in the flow rate,

[00:35:53] Speaker 03:
Where the pump is submerged, as in Rasmussen, a loss of flow cannot be equated with a loss of prime.

[00:36:01] Speaker 03:
On Struthers and the other appeal now, a couple of last points.

[00:36:08] Speaker 03:
Struthers is taking the, the controller takes the pump and operates it in an aggressive manner.

[00:36:16] Speaker 03:
Would you agree an unprimed pump will not pump?

[00:36:22] Speaker 03:
an unprimed pump will have no fluid in it to pump, Your Honor.

[00:36:29] Speaker 03:
And in Rasmussen, because it's submerged, that pump is going to be primed.

[00:36:35] Speaker 03:
It doesn't state a percentage, but I believe somebody skilled in the art would tell you practically the entire time.

[00:36:42] Speaker 03:
What happens is there's transient gas pockets that can come in, and what Rasmussen does is try to keep things running then.

[00:36:50] Speaker 03:
So it allows a little grace period for the gas to come in.

[00:36:53] Speaker 03:
You can see a blip at the flow meter.

[00:36:55] Speaker 03:
And then once the gas passes through, continue operation.

[00:36:58] Speaker 03:
So it wants to keep running when there's gas.

[00:37:02] Speaker 03:
So that's what we contend on Rasmussen.

[00:37:07] Speaker 03:
Given the time, I don't think I will get into the Struthers and 051 any further.

[00:37:12] Speaker 03:
So let's see if the court has questions.

[00:37:15] Speaker 03:
Thank you very much for your time.

[00:37:16] Speaker 05:
Thank you.

[00:37:17] Speaker 05:
We thank both parties, and the cases are submitted.