[00:00:28] Speaker 04:
Next case is Pentair Water Pool versus Haywood Industries, 2015-18-09.

[00:00:37] Speaker 04:
Mr. Bulland.

[00:00:48] Speaker 01:
Good morning.

[00:00:48] Speaker 01:
We have police court.

[00:00:50] Speaker 01:
I'm Mark Bulland for the appellant Pentair.

[00:00:55] Speaker 01:
This case,

[00:00:57] Speaker 01:
involves a question where the board made a critical error on claim construction.

[00:01:04] Speaker 01:
The board purported to apply the broadest reasonable interpretation or BRI standard to the claim language and in doing so it effectively read the invention right out of claim one.

[00:01:17] Speaker 01:
It read claim one inconsistently with the disclosure and with the intrinsic evidence

[00:01:24] Speaker 01:
including the plain language of claim one.

[00:01:28] Speaker 01:
And therefore, the construction that was applied by the board cannot be the broadest reasonable construction.

[00:01:37] Speaker 01:
So claim one is a focused claim.

[00:01:40] Speaker 01:
It's a method.

[00:01:41] Speaker 01:
It's got six steps.

[00:01:44] Speaker 01:
The 420 patents at issue here is not attempting to claim the whole world.

[00:01:51] Speaker 01:
The key inventive feature

[00:01:54] Speaker 01:
is the last couple steps of claim one, where after the steps go through an iteration where a controller senses an overheat condition.

[00:02:05] Speaker 04:
You want to read if to mean if and when?

[00:02:13] Speaker 01:
We want to read if to mean, Your Honor, cause and effect.

[00:02:17] Speaker 01:
The word if in the language triggers the effect.

[00:02:21] Speaker 01:
The word if is the cause of the effect.

[00:02:24] Speaker 01:
The word if dictates the effect.

[00:02:27] Speaker 01:
And that is the precise meaning of if, not only in the last clause of the- Why wouldn't the word be when then?

[00:02:35] Speaker 00:
If it's true, why wouldn't we see the word when?

[00:02:39] Speaker 01:
That's a good question.

[00:02:41] Speaker 01:
Yes, sure.

[00:02:42] Speaker 01:
So when is, when signifies time.

[00:02:46] Speaker 01:
And it's Pentair's position, and I believe this is consistent with the record and the intrinsic evidence thing.

[00:02:54] Speaker 01:
when could in some circumstances define an event.

[00:02:57] Speaker 01:
But whether the trigger, the triggered event occurs within a millisecond or a half a second or a second or two seconds after the triggering event, that specific time period of when is not of critical importance.

[00:03:13] Speaker 01:
That's a detail that a programmer of skill in the art could take into account when designing the program.

[00:03:20] Speaker 01:
What's disclosed and what's claimed

[00:03:24] Speaker 01:
is a logical sequence of steps where according to the specification and according to figure 8, which is the claimed embodiment essentially, you have a diagram.

[00:03:39] Speaker 01:
You have a logical diagram at 410 and above that the controller is sensing the heat sink temperature

[00:03:50] Speaker 01:
and you go down and the sensing continues through a loop where it says, yes, an attempt to restart the drive.

[00:04:01] Speaker 01:
And that is not discretionary.

[00:04:04] Speaker 01:
That's the result.

[00:04:06] Speaker 01:
And so in this case, what we have is a cause and effect situation that is very similar to what occurred

[00:04:18] Speaker 01:
in this court's decision in Alteras.

[00:04:21] Speaker 01:
And I believe Judge Lurie was on the panel in that case.

[00:04:24] Speaker 01:
It's cited in our brief.

[00:04:26] Speaker 01:
It's from 2003.

[00:04:27] Speaker 01:
And there was similar if clause that was characterized as conditional language.

[00:04:34] Speaker 01:
And the court found that due to the word if, it's present mandated that the result occur.

[00:04:42] Speaker 01:
So in that particular case, the if language was found to be cause and effect.

[00:04:48] Speaker 01:
So what the board found or what the board read into the claim was essentially divorcing the fifth step, sensing from the sixth step of attempting to restart the drive.

[00:05:08] Speaker 01:
In other words, the board did not apply a cause and effect relationship.

[00:05:13] Speaker 01:
The board essentially said under claim one,

[00:05:18] Speaker 01:
There's a sensing step.

[00:05:20] Speaker 01:
And separately, there's a restarting step or an attempt to restart step.

[00:05:24] Speaker 01:
And those two are not linked.

[00:05:26] Speaker 01:
The board read the linking and the cause and effect right out of claim one.

[00:05:31] Speaker 01:
And in doing so, it used language that the attempt to restart can occur at any time or at some point.

[00:05:39] Speaker 01:
And if the temperature happens to be below the second sensed temperature, you have claim one.

[00:05:46] Speaker 01:
And we respectfully submit that that

[00:05:48] Speaker 01:
construction is way over broad.

[00:05:51] Speaker 01:
It's divorced from the specification.

[00:05:54] Speaker 01:
There's no indication in the 420 specification.

[00:05:58] Speaker 01:
The main description of this embodiment is at the bottom of column 19 and the top of column 20.

[00:06:04] Speaker 01:
And it's discussing figure 8.

[00:06:06] Speaker 01:
And there's no indication that there can be an indefinite or indeterminate delay between the sensing and the result.

[00:06:17] Speaker 03:
The Alturas case that you cited, I thought that that was actually not particularly helpful to your side because I'm just reading from the text here that the claim term was booting normally if said testing automatically indicates a normal boot segment.

[00:06:37] Speaker 03:
The court read that to mean to indicate that the testing step must occur before the computer boots normally, not that

[00:06:45] Speaker 03:
As you were saying, there can be no intervening event.

[00:06:51] Speaker 03:
Why is that case helpful to you?

[00:06:53] Speaker 01:
Thank you, Judge President.

[00:06:54] Speaker 01:
I believe that in that case, the court was saying that the testing step determines whether the automation boot sequence occurs.

[00:07:05] Speaker 01:
So it's a condition preceding?

[00:07:07] Speaker 01:
Well, the if language was given conditional effect.

[00:07:12] Speaker ?:
Right.

[00:07:13] Speaker 01:
Conditional preceding.

[00:07:14] Speaker 01:
And that's cause and effect.

[00:07:15] Speaker 01:
condition precedent, you could call it too.

[00:07:18] Speaker 01:
And in our view of the claim language here, if does not permit discretion.

[00:07:28] Speaker 01:
When the claim says attempt to restart if the temperature is below the second predetermined temperature level, attempt to restart.

[00:07:37] Speaker 01:
And that's the critical distinction over the prior art.

[00:07:40] Speaker 01:
For example, at the outset of the re-examination,

[00:07:45] Speaker 01:
the petitioner and our friends Hayward sought to have claim one found unpatentable over this Baldor reference.

[00:07:55] Speaker 01:
Baldor is probably the closest reference in the record as far as we're aware and the examiner found that Baldor alone did not teach the last two sensing and attempting to restart steps as claimed.

[00:08:11] Speaker 01:
So the board

[00:08:13] Speaker 01:
did pick up a rejection which involved Danfoss as a secondary reference, which I'll get to momentarily.

[00:08:20] Speaker 01:
But the key distinction is that Baldor bases the attempt to restart on a timer.

[00:08:29] Speaker 01:
There's a time delay.

[00:08:30] Speaker 01:
It can be from 0 to 60 seconds.

[00:08:34] Speaker 01:
There can be up to eight attempts over 10 minutes.

[00:08:38] Speaker 01:
And if the restart is not successful during that time frame,

[00:08:42] Speaker 01:
The system shuts down, and it will remain shut down until a human intervenes at some point in time.

[00:08:50] Speaker 01:
Similarly, in the Danfoss reference, there's a shutdown.

[00:08:56] Speaker 01:
So Danfoss and Baldor both get to the shutdown point.

[00:09:01] Speaker 01:
But what Danfoss does, and we've spelled this out as clearly as we could in our briefs, Danfoss shuts down, there's a trip lock, an alarm is triggered,

[00:09:12] Speaker 01:
and it requires a human being to go reset the drive.

[00:09:17] Speaker 01:
We've quoted the language in Danfoss.

[00:09:19] Speaker 01:
It can be reset manually in one of three ways, one of which is pushing the reset button.

[00:09:25] Speaker 01:
And power has to be, you have to cut the power off and then reapply it.

[00:09:31] Speaker 01:
You're basically rebooting the system in Danfoss before there can be a manual restart.

[00:09:38] Speaker 01:
Okay, so Danfoss is purely manual.

[00:09:41] Speaker 01:
after you get the initial shutdown because things are too hot.

[00:09:46] Speaker 01:
And in fact, at page 11882 and then 884, there's specific findings again by the examiner on the record indicating that Dan Foss specifically teaches away from an automatic restart.

[00:10:05] Speaker 01:
So besides the claim construction issue, Your Honors, we respectfully submit that

[00:10:12] Speaker 01:
it was improper to combine those two references.

[00:10:16] Speaker 01:
They may be common up to a shutdown point but after that they diverged significantly in this particular world.

[00:10:26] Speaker 01:
Dan Foss is a manual reset and then restart and Baldor is simply restarting based on a timer.

[00:10:36] Speaker 01:
If Baldor gets to the point where the attempts to restart have been exhausted

[00:10:42] Speaker 01:
and the system shut down, Baldor then gets into a human operator world.

[00:10:47] Speaker 01:
An example that we gave in our briefs is that one embodiment covered by this claim is a pool, a swimming pool.

[00:10:59] Speaker 01:
I'm not saying the claims are limited to a pump for a swimming pool, but that's what the commercial dispute is about that underlies this case.

[00:11:09] Speaker 01:
A pool pump is typically unattended by the owner.

[00:11:13] Speaker 01:
And so if a Danfoss or Baldor system were used and there was a motor overheat situation and no one was around, according to Danfoss, that pump could be down for two weeks.

[00:11:27] Speaker 01:
If the owner was away, he'd come back, he'd have a pool that was green, because pools quickly turn green from algae and other

[00:11:35] Speaker 01:
invasive materials, and in Baldor, if the restart attempts cycled through eight times for ten minutes were unsuccessful, a Baldor situation would result in the same type of analogy.

[00:11:51] Speaker 01:
Claim one of the 420 patent, it ensures that the problem that caused the shutdown is resolved before

[00:12:03] Speaker 01:
the attempt to restart is made.

[00:12:05] Speaker 01:
And that's the critical difference.

[00:12:07] Speaker 01:
And so we respectfully submit that A, the claim construction was overbroad, and a proper claim construction would result in a clearly patentable claim.

[00:12:19] Speaker 01:
And second, even under a broad construction, the combination of references shouldn't have been made in the manner that the board did for the reasons presented in our brief and as I briefly touched on here.

[00:12:30] Speaker 04:
And I'll reserve the rest unless... We will save the remainder of your time, Mr. Bowman.

[00:12:34] Speaker 01:
Thank you.

[00:12:35] Speaker 04:
Mr. Nikolsky.

[00:12:42] Speaker 02:
Thank you.

[00:12:42] Speaker 02:
Good morning, Your Honors.

[00:12:43] Speaker 02:
May it please the Court?

[00:12:44] Speaker 02:
In this legacy inter-parties reexamination proceeding, the board correctly held that claims 1 through 4 of the 420 patent are obvious in view of the Baldor reference and the Danfoss reference.

[00:12:54] Speaker 02:
These are two very analogous teachings and references.

[00:12:58] Speaker 02:
That finding of obviousness was well supported.

[00:13:00] Speaker 02:
I'd like to make three points to your honors that are important in response to Pentair's position.

[00:13:05] Speaker 02:
First, the board's claim construction was correct and was proper.

[00:13:09] Speaker 02:
Second, your honors, the obviousness determination made by the board is proper under the board's construction and even under Pentair's construction if the court chooses to adopt that construction.

[00:13:19] Speaker 02:
Thirdly, your honor, there are alternative grounds of affirmance that this court can look to to substantiate the obviousness finding.

[00:13:26] Speaker 02:
Turning to the claim construction issues, Your Honor.

[00:13:29] Speaker 03:
Would we run into chennery problems on the third round?

[00:13:31] Speaker 02:
I'm sorry, Your Honor.

[00:13:32] Speaker 03:
Do we run into chennery problems seeking to affirm the board on the ground that was not the one adopted by the board?

[00:13:41] Speaker 02:
I don't think so, Your Honor, and I think it's just additional evidence that this court could look to.

[00:13:46] Speaker 03:
If it wanted to substitute you.

[00:13:48] Speaker 03:
You know what I mean when I say it.

[00:13:49] Speaker 03:
I don't.

[00:13:50] Speaker 03:
The basic doctrine of administrative law that whereas a court can affirm a district court on grounds that are different from the ones that are even rejected by the district court, you can't do that with an administrative agency.

[00:14:05] Speaker 03:
You have to take the administrative agency's position and call it yes or no.

[00:14:10] Speaker 03:
And if there are additional grounds, it has to go back to the administrative agency for the administrative agency to decide that question.

[00:14:16] Speaker 02:
I don't know the answer to that question, your honor, but I think that with the references that are in front of the court, particularly the ones that were adopted, that is sufficient for the court to uphold an obviousness determination.

[00:14:28] Speaker 02:
Turning to the claim construction issues, your honors, the board correctly concluded that the term attempting to restart the drive to the motor if the second temperature value is less than the lip bone temperature limit sets forth the condition precedent.

[00:14:40] Speaker 02:
It does not set forth the cause and effect relationship.

[00:14:42] Speaker 02:
that opposing counsel has argued.

[00:14:44] Speaker 02:
And it certainly does not set forth an immediate cause and effect relationship that has been advanced.

[00:14:49] Speaker 02:
The claim language itself, Your Honors, when we look at the claim language itself, it merely says that there is a condition precedent.

[00:14:57] Speaker 02:
It doesn't say the words only if.

[00:14:59] Speaker 02:
It doesn't say that the restart attempt occurs in response to.

[00:15:02] Speaker 02:
And none of the causation words that opposing counsel uses now to characterize its claims, they don't appear in the claims themselves.

[00:15:09] Speaker 02:
Additionally, Your Honors, when we look to the specification itself and look at the teachings of the 420 patent, the 420 patent only describes the words using the words can, for example.

[00:15:19] Speaker 02:
The procedures that are set forth in figure eight use the word can.

[00:15:23] Speaker 02:
An attempt can occur.

[00:15:24] Speaker 02:
And additionally, Your Honors, the board found that claim one only covers part of what is in figure eight.

[00:15:30] Speaker 02:
It doesn't cover all of it.

[00:15:32] Speaker 02:
And because of that, it was reasonable for the board to interpret this term as something that is nothing more than a conditioned precedent to a

[00:15:39] Speaker 02:
The obviousness issues, your honors, turning to those issues.

[00:15:43] Speaker 02:
The board's obviousness determination is well supported by substantial evidence.

[00:15:47] Speaker 02:
Again, either under the board's claim construction or even under Penter's claim construction.

[00:15:52] Speaker 02:
The Ballador reference teaches virtually all of claim one.

[00:15:55] Speaker 02:
It is a variable frequency drive.

[00:15:58] Speaker 02:
It has the ability to sense a heat sink over temperature condition.

[00:16:01] Speaker 02:
It has the ability to trip that drive if the heat sink temperature is too high.

[00:16:05] Speaker 02:
And it shuts it down.

[00:16:07] Speaker 02:
And it also has the ability to do an automatic restart.

[00:16:09] Speaker 03:
The automatic restart is not responsive to the lowering of temperature.

[00:16:16] Speaker 03:
Is that right?

[00:16:18] Speaker 02:
Well, Your Honors, we believe that that teaching comes from Dan Foss.

[00:16:21] Speaker 03:
Well, right.

[00:16:21] Speaker 03:
But Baldor itself will just start without regard to whether the temperature has gone down beneath a safe level.

[00:16:29] Speaker 02:
Your Honors, one of the points that Dr. Amati in our proceedings had set forth in his declaration is that he understands that temperature

[00:16:37] Speaker 02:
is a gating item to a restart, even in the situation with Baldor and the teachings of Baldor.

[00:16:41] Speaker 02:
And that's because of this concept of oscillation.

[00:16:45] Speaker 02:
According to Dr. Amati, in variable frequency drive space, if you only had one temperature value, the system would go into a state of oscillation.

[00:16:53] Speaker 02:
It would trip and then it would restart.

[00:16:54] Speaker 02:
It would trip and then it would reset.

[00:16:56] Speaker 02:
To avoid that, there are two, Professor Amati states that there are two values, an upper temperature limit and a lower temperature limit.

[00:17:03] Speaker 02:
His understanding is that that is present in

[00:17:06] Speaker 02:
And a person of ordinary skill, and you aren't reading the Baldor reference, understands that that is present in there.

[00:17:13] Speaker 03:
Of course, responding to a significant decrease in temperature wouldn't be the only way to avoid the oscillation problem.

[00:17:21] Speaker 03:
You could also put in a period of time.

[00:17:24] Speaker 02:
That's correct.

[00:17:25] Speaker 03:
It would be a form of oscillation, but it would be very slow.

[00:17:28] Speaker 03:
You wouldn't have the kind of problem that you would have with the instantaneous efforts by the machine.

[00:17:33] Speaker 03:
Correct.

[00:17:36] Speaker 03:
Is there any portion of Baldor that we look to where we would say, that's where the lower safe level temperature is the trigger for the resumption of the restart?

[00:17:48] Speaker 02:
Yeah, there is some discussion in Baldor that when you have a fault condition and it trips, that fault conditions should be dealt with first before there's a restart.

[00:17:58] Speaker 02:
And I think that that

[00:17:59] Speaker 02:
is a teaching that says you want to wait for this condition to be alleviated, this temperature condition to be alleviated before you attempt to restart.

[00:18:05] Speaker 02:
Otherwise, you will get into an oscillation state.

[00:18:09] Speaker 02:
Your Honors, the teachings that are taken from Danfoss are very narrow, and they're very specific teachings, and it was proper for the board to take those teachings and use them in the context of Ballard.

[00:18:18] Speaker 02:
First of all, Danfoss teaches that there's a sensing of multiple heatsink temperatures even after shutdown.

[00:18:25] Speaker 02:
Secondly, it teaches that there is a sensing of a lower temperature value, a lower heatsink temperature value.

[00:18:31] Speaker 02:
And in fact, in the Danfoss system, it discloses that there is a shutdown if the temperature is above 80 to 90 degrees.

[00:18:38] Speaker 02:
It trips the drive if it's above that value.

[00:18:41] Speaker 02:
It also explicitly discloses that one should wait and that the system waits until the temperature is lower than 60 degrees in order to permit a reset attempt to occur.

[00:18:51] Speaker 03:
Now, taking those two- It doesn't have an automatic.

[00:18:55] Speaker 03:
That's correct.

[00:18:55] Speaker 03:
It has manual.

[00:18:56] Speaker 03:
That's correct.

[00:18:57] Speaker 03:
It won't even allow you to go in and reset until you hit 60.

[00:19:01] Speaker 03:
Is that the way it works?

[00:19:02] Speaker 02:
That's correct, Your Honor.

[00:19:03] Speaker 02:
It prohibits a reset from happening until the temperature value is below 60.

[00:19:07] Speaker 02:
But once those teachings are incorporated into the system of Baldor, Baldor has the automatic restart.

[00:19:12] Speaker 02:
So what would happen is the lower temperature from Danforth becomes the gating item for there to be the automatic restart that is tripped in the Baldor system.

[00:19:23] Speaker 02:
So Your Honors, there are

[00:19:25] Speaker 02:
There are multiple grounds here that this court can rely on to support the obviousness determination.

[00:19:32] Speaker 02:
And we respectfully submit that the claims are invalid in view of the cited references.

[00:19:37] Speaker 02:
Does the court have any further questions?

[00:19:40] Speaker 03:
I think you may have already addressed this, but there's a separate argument made that even under the board's claim construction, we long to find the disputed claims to be obvious.

[00:19:54] Speaker 03:
To the extent that you haven't addressed that by your discussion of Baldor and Danforth, do you want to address that?

[00:20:01] Speaker 02:
Sure, Your Honor.

[00:20:02] Speaker 02:
So in the situation where you have a, if you were to take Penter's claim construction, for example, that there is a trigger present.

[00:20:11] Speaker 02:
That is taught by the combination of these two references.

[00:20:14] Speaker 02:
It is taught by Baldor and Danforth's combination because

[00:20:18] Speaker 02:
Dr. Amati testified that it would be beneficial to avoid oscillation.

[00:20:22] Speaker 02:
It would be beneficial to have a situation where you have two different temperature values.

[00:20:27] Speaker 03:
You're really relying on Dr. Amati, is that the name?

[00:20:30] Speaker 03:
Professor Amati.

[00:20:30] Speaker 03:
Professor Amati.

[00:20:31] Speaker 03:
You're really relying on him to bridge the gap in that respect, aren't you?

[00:20:35] Speaker 02:
Well, not necessarily, Your Honors.

[00:20:37] Speaker 02:
We're relying on him for the motivation to combine the teachings.

[00:20:40] Speaker 03:
The reason for combining the teachings.

[00:20:41] Speaker 03:
But also for an interpretation as to what a person of ordinary skill in the art would interpret Valdor to

[00:20:47] Speaker 02:
That's correct.

[00:20:49] Speaker 02:
It's both the extent of its disclosure and the rationales for combining references together.

[00:20:57] Speaker 02:
Your Honor, so there are sufficient rationales that the person of ordinary skill in New York would want to take the teachings of Danfoss and incorporate into Baldor.

[00:21:05] Speaker 02:
The Baldor system tries to avoid an over-tenant condition.

[00:21:09] Speaker 02:
It trips.

[00:21:10] Speaker 02:
It can restart itself.

[00:21:12] Speaker 02:
Having that additional teaching

[00:21:14] Speaker 02:
in there of using the second temperature level, avoids the oscillation condition, and it also meets the limitations of Glynne.

[00:21:22] Speaker 02:
Unless the court has any further questions, I'd like to say thank you.

[00:21:25] Speaker 04:
Thank you, counsel.

[00:21:26] Speaker 04:
Mr. Boland has a few minutes.

[00:21:29] Speaker 04:
Thank you.

[00:21:30] Speaker 01:
Just a couple brief rebuttal points.

[00:21:33] Speaker 01:
Judge Bryson, in Baldor, regardless of what Dr. Amati says, you asked counsel

[00:21:40] Speaker 01:
Where is it in the document that there's any disclosure of temperature being a trigger?

[00:21:45] Speaker 01:
And I can assure the court, there is none.

[00:21:47] Speaker 01:
It's simply not there.

[00:21:50] Speaker 01:
And all that's there is a timer.

[00:21:52] Speaker 01:
Second, Dan Foss was found by the examiner at the site I gave in my opening comments to expressly teach away from an automatic restart.

[00:22:02] Speaker 01:
And it's manual.

[00:22:04] Speaker 01:
So the so-called sensing of temperature

[00:22:07] Speaker 01:
that the board allegedly took from Dan Foss and plugged into Baldor to allegedly meet our claims.

[00:22:15] Speaker 01:
What that is as we briefed, it's a temperature that's sensed, okay, and it's the numbers put on a display.

[00:22:24] Speaker 01:
It's put on a screen.

[00:22:26] Speaker 01:
It's not monitored electronically in any way.

[00:22:30] Speaker 01:
So let's take that displayed temperature and add it to Baldor.

[00:22:36] Speaker 01:
So you have Baldor now with its timer, and it's got up to 10 minutes to try to successfully restart, and you have a disassociated displayed temperature, okay?

[00:22:52] Speaker 01:
That's still, first of all, why would you do that?

[00:22:56] Speaker 01:
This was, you know, there's no rationale disclosed with specific findings supported by substantial evidence that would give you the how

[00:23:06] Speaker 01:
or why or what would happen to make this combination.

[00:23:10] Speaker 01:
So first of all, why would anyone do it?

[00:23:12] Speaker 01:
You're adding a superfluous feature from Danfoss into Baldor which would seemingly work fine for its own purposes on its own.

[00:23:23] Speaker 01:
Second, if you took that displayed temperature from Danfoss and put it into Baldor, presumably

[00:23:34] Speaker 01:
an operator would still have to come by and notice what the temperature is.

[00:23:40] Speaker 01:
And then if, perhaps, Beldor's system had already been completely shut down because the restart attempts expired, presumably then an operator could do something.

[00:23:51] Speaker 01:
But we submit that's not the claimed invention at all.

[00:23:55] Speaker 01:
And so unless the court has further questions, I see my time is up.

[00:23:59] Speaker 04:
Thank you.

[00:24:00] Speaker 04:
Counsel will take the case on revising.