[00:00:00] Speaker 01:
versus Corning Optical.

[00:00:09] Speaker 03:
Mr. Jackson, nice to see you again.

[00:00:11] Speaker 03:
Thank you, Your Honor.

[00:00:12] Speaker 03:
May I proceed?

[00:00:13] Speaker 03:
Please proceed.

[00:00:13] Speaker 03:
Thank you.

[00:00:14] Speaker 01:
You switch gears faster than I do.

[00:00:15] Speaker 03:
Go ahead.

[00:00:16] Speaker 03:
Well, there are two issues here.

[00:00:18] Speaker 03:
One is claim construction of reside around, which is in claim 10, and the application of the axial lengthwise contact, which is in claim 13.

[00:00:27] Speaker 03:
And here's another claim construction issue that we believe the board got wrong, and saying reside around just means in the vicinity of or near.

[00:00:38] Speaker 02:
Is this another situation in which it could be that BRI and Phillips are at odds?

[00:00:45] Speaker 03:
Well, I don't think this is a reasonable interpretation to say in the vicinity of or near.

[00:00:51] Speaker 03:
It's just the board picking between one dictionary definition over the other.

[00:00:57] Speaker 03:
without looking at the context of the patent.

[00:00:59] Speaker 03:
And so I don't think it's a reasonable construction.

[00:01:02] Speaker 03:
And in that case, I'm not sure that they would differ.

[00:01:06] Speaker 02:
So as I understand your proposal, you're saying it has to surround.

[00:01:10] Speaker 02:
That's right.

[00:01:10] Speaker 02:
Do you mean it has to completely surround?

[00:01:13] Speaker 03:
There could be a gap.

[00:01:15] Speaker 03:
There could be slits.

[00:01:17] Speaker 01:
Like the slit embodiment.

[00:01:18] Speaker 03:
Yes.

[00:01:19] Speaker 03:
And so 360 degrees is not really the issue.

[00:01:23] Speaker 01:
But we've got you surrounded, but for that door in the back.

[00:01:26] Speaker 01:
Like, it doesn't work for me.

[00:01:28] Speaker 01:
I don't know.

[00:01:29] Speaker 03:
Well, and circle is also another word as well.

[00:01:34] Speaker 03:
To require something as specific as saying it has to be completely 360 degrees.

[00:01:40] Speaker 02:
Like figure 35, where there clearly are curved depictions.

[00:01:51] Speaker 02:
Yes.

[00:01:53] Speaker 02:
the yin and yang.

[00:01:54] Speaker 02:
But it doesn't go completely around, right?

[00:01:58] Speaker 03:
Those don't, no.

[00:01:59] Speaker 03:
And they also are not this particular configuration, which is in the other figures 23 and 26.

[00:02:07] Speaker 03:
It's what they sometimes refer to.

[00:02:10] Speaker 03:
It looks like a milk can a little bit.

[00:02:12] Speaker 03:
And it actually goes around the outside of the body.

[00:02:17] Speaker 03:
And that's what's critical about these claims.

[00:02:19] Speaker 03:
This is not contacting between the nut and the post.

[00:02:22] Speaker 03:
It goes around the external portion of the body.

[00:02:25] Speaker 02:
But now, what is your response to the red briefs argument that, all right, even if we accept your proposition that it has to encircle, as long as it doesn't have to encircle completely, they've got an argument that even under that construction, at least Suzuki would read on that?

[00:02:47] Speaker 03:
Well, it doesn't encircle the body, even partially.

[00:02:51] Speaker 03:
It contacts the face of it.

[00:02:54] Speaker 03:
And the fact that it's a circle doesn't mean that in circles... It covers three sides of it, right?

[00:03:00] Speaker 03:
No, it just covers the face of it.

[00:03:02] Speaker 03:
One side of it.

[00:03:05] Speaker 03:
Of the body.

[00:03:09] Speaker 02:
I'm looking at the figure.

[00:03:11] Speaker 02:
Maybe I'm wrong, but it looks like the continuity member is connected to the connector body and the connector body goes around.

[00:03:22] Speaker 02:
Oh, I see.

[00:03:24] Speaker 02:
Part of that is the post.

[00:03:26] Speaker 03:
That's right.

[00:03:27] Speaker 03:
It would go around the post and be adjacent to the face of the connector body.

[00:03:35] Speaker 03:
And this embodiment that's shown in 23 and 26 in those figures, this has a sleeve-like configuration.

[00:03:42] Speaker 03:
And that's what these claims are directed to.

[00:03:44] Speaker 03:
And that's why it says, reside around the external portion of the body, not above the face of it.

[00:03:51] Speaker 03:
That's something very different.

[00:03:53] Speaker 03:
And so there's another problem with the board's construction and the immediate vicinity of or near.

[00:03:59] Speaker 03:
That doesn't even require contact.

[00:04:02] Speaker 03:
That could be just in the air.

[00:04:04] Speaker 03:
It could be inside, outside.

[00:04:05] Speaker 01:
No, it can't be outside because the rest of, while in theory those words could be outside, the rest of the claim language itself expressly requires external body contact.

[00:04:15] Speaker 01:
Yes, it does.

[00:04:16] Speaker 01:
And external contact, the external body if you're inside.

[00:04:21] Speaker 01:
I don't think the argument even makes any sense to me.

[00:04:23] Speaker 03:
Well, I think that shows that they're inconsistent to... They're not inconsistent.

[00:04:27] Speaker 01:
The plain meaning could be in the immediate vicinity of, but then the claim further limits it to only on the outside proportion.

[00:04:38] Speaker 03:
Your Honor, I don't think a reside around, given that it has to contact, can mean that it needs to be somewhere in the vicinity of.

[00:04:47] Speaker 03:
There has to be contact, and it's there in the rest of the claim.

[00:04:50] Speaker 03:
So to say reside around means somewhere nearby.

[00:04:53] Speaker 03:
I guess you might as well just leave that limitation out because then it doesn't mean anything.

[00:05:02] Speaker 03:
It would be certainly redundant with somehow contacting if that's all that's required.

[00:05:09] Speaker 02:
What if we said that the board's interpretation reasonably should be interpreted as saying

[00:05:17] Speaker 03:
Nearby, but nearby such that it can contact rather than encircled I think that That the portion of it that relates to contact is already in the claim So you basically be giving no meaning to that to the term reside around and it is a distinguishing feature of this a particular embodiment that it actually is on the external portion and Resides around the outside of the body

[00:05:45] Speaker 03:
It is that figure 23 and 26 embodiment.

[00:05:49] Speaker 03:
And to read it another way so that it could contact anywhere on the body really doesn't make sense.

[00:05:57] Speaker 01:
The word around is used 11 times in the patent.

[00:06:00] Speaker 01:
It is.

[00:06:01] Speaker 01:
Four in the claims and seven in the spec.

[00:06:04] Speaker 01:
And apart from the yin yang embodiment, which Judge Amelli asked you about, we'll talk about in one second again.

[00:06:11] Speaker 01:
I don't see anywhere where around is used to mean near.

[00:06:16] Speaker 01:
In every instance, it's clearly used to be an encircle or surrounding.

[00:06:20] Speaker 01:
That's right.

[00:06:21] Speaker 03:
It is.

[00:06:21] Speaker 01:
But the yin-yang embodiment, the word around is used, but then it says it, what's the precise language?

[00:06:27] Speaker 01:
Yin-yang like around or around the yin-yang like fashion or something?

[00:06:32] Speaker 03:
That's it.

[00:06:33] Speaker 01:
Is your argument on that, that the yin-yang descriptor modifies it?

[00:06:37] Speaker 01:
Like if it says, if it were to say, go around a portion of,

[00:06:41] Speaker 03:
It could be that, partially around.

[00:06:43] Speaker 03:
If you look at the figure.

[00:06:45] Speaker 03:
If you look at the figure.

[00:06:46] Speaker 01:
Yin-yang like around.

[00:06:48] Speaker 03:
That's right.

[00:06:49] Speaker 03:
You read the figure and try to understand what those words are.

[00:06:53] Speaker 03:
You don't think it completely encircles, even though the word around is there, because it's been modified.

[00:06:58] Speaker 03:
And it goes partially around.

[00:07:01] Speaker 03:
And it's also one of the reasons we say you don't have to completely go around.

[00:07:06] Speaker 03:
But there are all the other uses of the word around, which are admittedly in different contexts talking about the shielding.

[00:07:11] Speaker 03:
They are all talking about it in circling.

[00:07:13] Speaker 03:
And so around generally means that.

[00:07:14] Speaker 01:
And I found near 13 times all in the spec, never in the claims.

[00:07:18] Speaker 01:
And every time it seemed to mean sort of like adjacent to.

[00:07:21] Speaker 03:
That's right.

[00:07:23] Speaker 03:
And I think that's exactly the failing with the board's claim construction.

[00:07:30] Speaker 01:
One problem, and here's where this is sort of poor draftsmanship in terms of the claims.

[00:07:36] Speaker 01:
is the word reside also appears.

[00:07:38] Speaker 01:
I don't remember the exact number of it.

[00:07:39] Speaker 01:
I highlighted that one in blue throughout the patent.

[00:07:42] Speaker 01:
Maybe it's eight or nine.

[00:07:44] Speaker 01:
But every time it uses the word reside, and I have no doubt you've done the same thing.

[00:07:47] Speaker 01:
Every time it uses the word resides, it uses it with near or approximate to.

[00:07:53] Speaker 01:
And it never uses the word resides when it uses the word around, right?

[00:07:58] Speaker 01:
It does not.

[00:07:59] Speaker 01:
This is a difficulty for me.

[00:08:01] Speaker 03:
That exact syntax is not used in the specification.

[00:08:04] Speaker 01:
Well, no, it's not just the exact syntax, because resides near isn't always together.

[00:08:09] Speaker 01:
But when it's talking about resides, it usually talks about the proximate location as opposed to the circumferential location.

[00:08:18] Speaker 01:
Yes.

[00:08:19] Speaker 01:
And so that's a poor, it combines those two words, and that's why we're here.

[00:08:23] Speaker 03:
I think you're right.

[00:08:25] Speaker 03:
And so the word reside on its own.

[00:08:28] Speaker 03:
would certainly not mean in circle or surround.

[00:08:31] Speaker 01:
You reside in wherever, McLean, Virginia or something, and you're not encircling McLean.

[00:08:37] Speaker 01:
No.

[00:08:40] Speaker 03:
But the two words together, when you add a round with the emphasis on a round.

[00:08:44] Speaker 01:
In the context of coaxial cable technology.

[00:08:46] Speaker 03:
That's right.

[00:08:47] Speaker 03:
And the particular drawings that are shown here on the external portion of the body.

[00:08:54] Speaker 03:
Here, the spring, the supposed spring of Tezuki, which is going to be inserted into Matthews, it doesn't encircle the external portion of the body.

[00:09:04] Speaker 03:
It encircles the post, but then it just touches the front face of the body.

[00:09:10] Speaker 03:
And here again... So perhaps it's domicile.

[00:09:14] Speaker 03:
Yes, Your Honor, it could be a domicile.

[00:09:17] Speaker 03:
So again, the board here made no findings that contacting the front face

[00:09:21] Speaker 03:
isn't circling or surrounding under our construction.

[00:09:24] Speaker 03:
They just use their own and found that it was... Do you want to save the rest of your time for rebuttal?

[00:09:32] Speaker 03:
If I could just briefly talk about axial lengthwise contact.

[00:09:37] Speaker 03:
Here the board stated the right construction but didn't apply it.

[00:09:41] Speaker 03:
The board's construction is contact in the direction of or along the axis, that's the axial part, has to have at least some length.

[00:09:49] Speaker 01:
Yeah, but they found that the Tatsuzuki's spring contacts at more than one point.

[00:09:54] Speaker 01:
And you fault them for arguably relying on the depicted drawing, but they said they didn't.

[00:10:01] Speaker 01:
So, I mean, it's fact-finding, statistical evidence.

[00:10:04] Speaker 01:
Do you want to end on a weak argument?

[00:10:06] Speaker 03:
Well, I think the flaw in the board's argument is they said the ring, no matter how thin, would have axial lengthwise contact.

[00:10:18] Speaker 03:
That essentially says there can never be point contact.

[00:10:21] Speaker 03:
If they say however thin, then that means there is never point contact.

[00:10:25] Speaker 03:
So the claim construction that says no point contact is really meaningless.

[00:10:30] Speaker 03:
There has to be a way to have a ring that has point contact.

[00:10:33] Speaker 03:
And when they say however thin, it shows that they're not actually applying the construction.

[00:10:38] Speaker 03:
There's no evidence that an arbitrarily thin ring would not have some lengthwise dimension along the axis.

[00:10:47] Speaker 03:
And so the board's findings, they're really in conflict with each other for them to say however thin it could still have axial lengthwise contact.

[00:10:55] Speaker 01:
Thank you.

[00:11:19] Speaker 05:
May I please, Court?

[00:11:21] Speaker 05:
I will be brief.

[00:11:24] Speaker 05:
With regard to the term reside around, the board went to the specification.

[00:11:31] Speaker 05:
It could not find a special definition for around.

[00:11:36] Speaker 02:
But it went to the dictionary, and there were seven different definitions, and it picked the seventh one down, even though the first one would support PPC's proposed construction, right?

[00:11:46] Speaker 05:
But all reasonable definitions.

[00:11:49] Speaker 02:
And all definitions that... The problem with this, in my view, is the problem is BRI still has an R in it.

[00:11:56] Speaker 02:
And it has to be reasonable.

[00:11:57] Speaker 02:
It has to be reasonable not just in the context of the world generally, but it has to be reasonable in the context of this patent and what is claimed and what the specification describes, right?

[00:12:09] Speaker 02:
Yes.

[00:12:09] Speaker 02:
So is there anything where it's just hanging out there and there isn't contact or it isn't encircled to some extent that you can point

[00:12:18] Speaker 02:
to me in the specification?

[00:12:20] Speaker 05:
So if you do look at the specification, you will see a number of embodiments where the continuity member is not sleeve-like.

[00:12:34] Speaker 05:
Is not sleeve-like.

[00:12:35] Speaker 01:
That's what they want.

[00:12:36] Speaker 01:
There are 53 figures, and I don't know, in excess of 20 different embodiments.

[00:12:41] Speaker 01:
Your argument can't possibly be that every claim must cover every embodiment.

[00:12:45] Speaker 01:
Right here, it would be physically impossible because of the different

[00:12:48] Speaker 01:
designs.

[00:12:50] Speaker 01:
So your argument can't possibly be that every claim must cover every embodiment.

[00:12:54] Speaker 01:
Is that your argument?

[00:12:57] Speaker 01:
You make a lot of arguments that sound like that in your brief about how it would be wrong to read preferred embodiments out of this claim.

[00:13:04] Speaker 01:
That's what you actually say verbatim in your brief in several places.

[00:13:06] Speaker 01:
And that struck me as very strange in a situation where there are 25 claims and more than 20 disclosed embodiments.

[00:13:13] Speaker 05:
Meaning where there are reasonable definitions that you can choose from.

[00:13:19] Speaker 05:
it would be inappropriate to read out of the claim an embodiment where you're using a reasonable definition for the term around.

[00:13:29] Speaker 05:
In fact, their own use.

[00:13:31] Speaker 01:
Is your claim construction canon, because I've never actually heard this one before, but maybe it makes sense.

[00:13:36] Speaker 01:
Is your canon, whenever there's more than one definition, the one that covers the most number of embodiments should be selected?

[00:13:44] Speaker 05:
I think in this particular case, yes, because it clearly was not excluded through the use of around.

[00:13:52] Speaker 05:
They could have used surround.

[00:13:54] Speaker 01:
Even though in many of those figures you pointed to, like figure five, which would be excluded, it would be excluded anyway because of other limitations.

[00:14:02] Speaker 01:
For example, there the contact was with the inside of the body member and not the outside.

[00:14:07] Speaker 01:
Or how about the embodiments where the contact is actually located

[00:14:11] Speaker 01:
The continuity number resides between the post and the nut, so it's not even with the external body.

[00:14:16] Speaker 01:
I mean, a lot of those embodiments are read out of claim 10, cannot possibly be covered by claim 10 because of other limitations within claim 10.

[00:14:26] Speaker 01:
So why should I necessarily then create a construction of one word within claim 10 that would cover a portion of that embodiment, even though that embodiment can't be covered by claim 10 because of other elements?

[00:14:37] Speaker 05:
So if there are other features of

[00:14:40] Speaker 05:
a claim, limitations that would clearly exclude an embodiment under a broadest reasonable construction, certainly those other embodiments would not fall within the scope of the claim.

[00:14:53] Speaker 01:
And I shouldn't strain to find a reasonable construction that would necessarily cover them vis-a-vis one element when they're clearly not contemplated as being covered by that claim because there are other elements which unquestionably they fail.

[00:15:07] Speaker 01:
Is that a reasonable way to think about it?

[00:15:11] Speaker 05:
One more time with the question.

[00:15:12] Speaker 05:
I'm not sure I'm following the question.

[00:15:14] Speaker 01:
Suppose there are two reasonable interpretations.

[00:15:17] Speaker 05:
Yes.

[00:15:18] Speaker 01:
Suppose there are two reasonable ones.

[00:15:20] Speaker 01:
One is broad, one is narrower.

[00:15:21] Speaker 01:
I shouldn't necessarily choose the broader one solely because it covers more embodiments vis-a-vis that particular element.

[00:15:34] Speaker 01:
when it's clear that those embodiments are not meant to be covered by that claim because of the other elements.

[00:15:40] Speaker 01:
I shouldn't strain to choose a broader one just because on that construction one of the elements of an embodiment would be included when the claim clearly doesn't contemplate covering that embodiment.

[00:15:57] Speaker 05:
I'm struggling a little bit with the question.

[00:15:59] Speaker 05:
If there are limitations in the claim that would exclude an embodiment

[00:16:03] Speaker 05:
you clearly should not construe the claim to encompass that embodiment.

[00:16:06] Speaker 01:
Not only that.

[00:16:07] Speaker 01:
I shouldn't worry about the terms in the claim and be reading them with an eye towards whether that term would include that portion of that embodiment, right?

[00:16:17] Speaker 01:
That embodiment is now off the table.

[00:16:19] Speaker 01:
If it's clear that that embodiment is not contemplated as being covered by claim 10, then I don't really need to pay attention to that embodiment when construing the language of claim 10, do I?

[00:16:28] Speaker 05:
I think you do.

[00:16:30] Speaker 05:
I think you have to look at the use of different terms to define different configurations and relationships between here, the continuity member, and the body.

[00:16:40] Speaker 02:
I think that is... Your response is probably that you begin with a presumption that the same term used in different claims means the same thing.

[00:16:49] Speaker 02:
It's obviously a presumption that can be overcome.

[00:16:52] Speaker 02:
But I assume that's your point.

[00:16:54] Speaker 05:
That's absolutely one of our arguments.

[00:16:56] Speaker 04:
And that an endothel language can inform.

[00:16:58] Speaker 05:
And that it can inform.

[00:17:00] Speaker 05:
Absolutely.

[00:17:01] Speaker 05:
Yes, absolutely.

[00:17:03] Speaker 01:
So there are 11 uses of around in this specification, and every one of them implies surrounding or encircling.

[00:17:12] Speaker 01:
And with the exception of the one use of around, which speaks to figure 35, why isn't Mr. Jakes right that when it says around in a yin-yang like fashion, that it's like saying partially around?

[00:17:28] Speaker 01:
partially around, if the word around does mean, if one of its definitions is surround, you can certainly say partially around, implying partially surrounding.

[00:17:39] Speaker 05:
So if you look at that figure, figure 35, and we have this on page 25 of our brief, that figure shows that those spring members are actually outside of a plane of the base portion of

[00:17:56] Speaker 05:
of the continuity member there.

[00:17:58] Speaker 05:
So even under their definition, it's not encircling or sleeve-like or surrounding.

[00:18:07] Speaker 05:
It's outside of the plane.

[00:18:09] Speaker 05:
It's not only not completely around, it's not even in the same plane.

[00:18:16] Speaker 01:
Would that possibly suggest that claim 35 is not covered?

[00:18:21] Speaker 01:
I mean, figure 35 is not one of the embodiments that is covered by

[00:18:25] Speaker 01:
Claim 10, is that what you're suggesting?

[00:18:30] Speaker 05:
I'm not sure that figure 35 was used to show an embodiment that had to be covered or not.

[00:18:37] Speaker 05:
I think the purpose of using figure 35 was to show that even PPC and their specification didn't limit the definition of the term around to something that had to be sleeve-like.

[00:18:52] Speaker 01:
Those spring members that they say... They didn't ask for a definition of sleeve-like.

[00:18:57] Speaker 01:
They asked for a definition of surround or encircled.

[00:19:00] Speaker 05:
They mentioned sleeve-like here today.

[00:19:03] Speaker 01:
It's hard to see sleeve-like embodiments in the patent and say, for example, those.

[00:19:08] Speaker 01:
But I don't understand Mr. Jakes to be narrowing his definition from encircled to sleeve-like.

[00:19:15] Speaker 05:
But even in circle, these flexible ring portions are not

[00:19:21] Speaker 05:
in the same plane encircling in the way that they would like the claim interpreted, whether it be surrounding or encircling.

[00:19:29] Speaker 01:
I don't remember a planar limitation either.

[00:19:34] Speaker 05:
I think that's what they're saying.

[00:19:37] Speaker 05:
If you look at a cylinder laying flat, I think they're saying that encircling has to touch the horizontal surfaces of the circle.

[00:19:48] Speaker 05:
and not just the vertical surfaces of the circle.

[00:19:51] Speaker 01:
If these arms were extended, they would absolutely encircle it.

[00:19:56] Speaker 01:
It's just that they would do so at an angle.

[00:19:58] Speaker 01:
I could encircle a cylinder like this.

[00:20:02] Speaker 01:
I can also encircle a cylinder like this.

[00:20:06] Speaker 01:
Have you ever played that little ring toss game with your kids or horseshoes, for example?

[00:20:11] Speaker 01:
Sometimes the horseshoe is at an angle.

[00:20:13] Speaker 01:
It's still encircling the post.

[00:20:15] Speaker 01:
Well, technically not, because it's in shape.

[00:20:17] Speaker 01:
But you understand the point.

[00:20:18] Speaker 05:
Yes, yes.

[00:20:20] Speaker 05:
So if that is the construction, then just putting the continuity member on the end of the body would meet their definition, if that's what they're saying.

[00:20:33] Speaker 00:
But that wouldn't encircle it.

[00:20:34] Speaker 05:
Because it would be encircling in the same way that it's not in the same plane.

[00:20:39] Speaker 01:
I don't understand.

[00:20:40] Speaker 01:
If it's off the end of the body, how is it encircling the body?

[00:20:43] Speaker 05:
The spring members that are referred to here

[00:20:47] Speaker 05:
as being around the continuity member are not in the same plane as the base portion of the continuity member.

[00:20:55] Speaker 05:
That's the purpose of that argument.

[00:20:58] Speaker 05:
It's to show that around is not limited to surrounding or encircling.

[00:21:06] Speaker 05:
Because here where they talk about the spring members being around, they don't

[00:21:13] Speaker 05:
in circle or surround the base portion of the continuity.

[00:21:17] Speaker 01:
They say they do it in a yin yang like fashion.

[00:21:20] Speaker 01:
So that's a modification of the word around, isn't it?

[00:21:25] Speaker 01:
I'm missing something.

[00:21:26] Speaker 01:
You can say partially around, can't you?

[00:21:28] Speaker 01:
And that modifies the standard definition around.

[00:21:33] Speaker 01:
So why can't you say around in a yin yang like fashion and similarly modify the definition of around?

[00:21:40] Speaker 05:
If those spring members are around, then that would be no different than putting the continuity member on the face, the front face of the body.

[00:21:52] Speaker 05:
Because those spring members are not in the same plane or encircling or surrounding the base portion of the continuity member.

[00:22:03] Speaker 02:
But that still wouldn't be the same as having it just nearby, right?

[00:22:08] Speaker 05:
That's right, but our point is around is not limited to surround or encircle or sleeve-like.

[00:22:17] Speaker 05:
That's been our point all along, that the definition is broader and they use it in a broader context in their specification.

[00:22:26] Speaker 02:
What about the fact that the board relied on language from the preamble to basically for a claim-differential

[00:22:35] Speaker 02:
differentiation analysis without having made any conclusions as to whether the preamble limited the claim?

[00:22:43] Speaker 05:
I think what the board was saying was that their construction is consistent with the terms that are used in the claim, meaning that having a broader definition of around is appropriate because when PPC wants something

[00:23:04] Speaker 05:
to surround another object, they say so.

[00:23:08] Speaker 02:
Well, that's an after-the-fact effort to try to save what the board did, isn't it?

[00:23:12] Speaker 02:
I mean, that's not what the board said.

[00:23:16] Speaker 05:
I think that's what they were getting at when they referenced the term surround, which appears in the claims which are under appeal, that their construction is consistent with... They weren't referencing the word surround in any

[00:23:33] Speaker 02:
other claim they were referencing it in the preamble of the claim they were looking at, which is a problem when they didn't find that that preamble was limiting in any way.

[00:23:42] Speaker 05:
I don't think that's a problem at all for them to still use that as evidence that they meant something different when they used the term around.

[00:23:54] Speaker 01:
sort of general rule that the elements of the claim are consistent with, in fact, the preamble?

[00:24:00] Speaker 01:
I mean, isn't there some general rule of law that suggests that?

[00:24:05] Speaker 01:
Maybe there should be, if there isn't.

[00:24:06] Speaker 01:
Because I guess the point I'm making is, when you're talking about the preamble, which if nothing else sets out the purpose of the invention, and if they use a different word in the preamble than the body, in fact, if anything, I would think we would, unlike normal statutory construction, if it's all part of the statute,

[00:24:24] Speaker 01:
or normal claim construction if it's in an alternative element, the point of the body is to give life and meaning, right?

[00:24:30] Speaker 01:
The preamble, the whole thing.

[00:24:32] Speaker 01:
So you would think that if anything, we should construe the different words consistently, because the preamble is the purpose for everything that comes after.

[00:24:40] Speaker 05:
I think the general rule is if there are different terms in the body of the claim, you should interpret those terms differently.

[00:24:49] Speaker 01:
I agree.

[00:24:50] Speaker 01:
The problem is this isn't the body.

[00:24:51] Speaker 01:
This is the preamble, and the whole point of the preamble is to give meaning to the actual stuff that comes after.

[00:24:56] Speaker 05:
Understood.

[00:24:57] Speaker 05:
The terms surround, unlike in the case that PPC cites in their brief, the Sementech case, unlike that case where the court found that they didn't want to give different meanings to words in the preamble because it would vitiate the

[00:25:17] Speaker 05:
meaning of terms in the body of the claim.

[00:25:20] Speaker 05:
Here, that's not the situation at all.

[00:25:22] Speaker 05:
The surround term in the claims in this case are dealing with the relationship of different components of a cable.

[00:25:33] Speaker 05:
The around term here is dealing with the relationship between the continuity number and the body.

[00:25:43] Speaker 05:
So the surround does not dictate

[00:25:47] Speaker 05:
that around has to be the same thing, because we're talking about different things.

[00:25:51] Speaker 01:
So your argument in response to me, if I understand it, is if when they use the word surround in the preamble to be talking about the continuity member, then this might be along the lines of what I was suggesting.

[00:26:04] Speaker 00:
Yes.

[00:26:04] Speaker 01:
But they are actually using the word surround to talk about whole different components, the dielectric, the copper, the whatever.

[00:26:11] Speaker 01:
Correct.

[00:26:11] Speaker 02:
Did the board make that finding?

[00:26:14] Speaker 02:
Did the board make that finding?

[00:26:16] Speaker 05:
I don't know that the board specifically made a finding on that, but it's clear from the claim itself what surround is modified.

[00:26:24] Speaker 01:
Well, when Mr. Jake stood up, the first place where he started is something that I think that you ought to address, which is that how can you have the definition of near or in the vicinity of when this claim requires actual contact and external portion of the connector?

[00:26:44] Speaker 01:
Now, don't bother with the internal external thing.

[00:26:46] Speaker 01:
But just because, I don't buy into that because the claim expressly says external.

[00:26:51] Speaker 01:
So the fact that near could be bigger than just external is modified by the other language of the claim.

[00:26:57] Speaker 01:
But what about contact?

[00:26:59] Speaker 01:
There's got to have contact, electrically contact.

[00:27:03] Speaker 01:
So if there has to be contact, doesn't that really preclude almost all of near?

[00:27:16] Speaker 05:
If you're looking at terms in a claim and we're looking at the term just around, we want to give that a reasonable definition.

[00:27:25] Speaker 05:
If there are some other terms in the claim that require the connection that you're talking about, we look at those terms to require that connection.

[00:27:35] Speaker 05:
Here, it's not excluding touching.

[00:27:36] Speaker 05:
No, but it's the same term.

[00:27:37] Speaker 01:
It's the same term.

[00:27:38] Speaker 01:
Continuity member positioned to electrically contact the nut and positioned to reside around an external portion of the connector body.

[00:27:47] Speaker 04:
So how can you... May I make a couple of quick points?

[00:28:04] Speaker 04:
The and has meaning.

[00:28:05] Speaker 04:
Pardon?

[00:28:06] Speaker 04:
The and has meaning.

[00:28:09] Speaker 04:
That's your point.

[00:28:13] Speaker 01:
Okay, go ahead.

[00:28:14] Speaker 01:
What quick points do you want to make?

[00:28:15] Speaker 05:
Because we're out of time.

[00:28:16] Speaker 05:
So much like the combined appeal, here PPC has not explained why even under their construction, the embodiments that Dr. Murakowski said were obvious and that the board found were obvious because there was motivation

[00:28:37] Speaker 05:
to put the Tatsuzuki spring member into the Matthews device in the ways that are described in those embodiments, why that would not meet its claim limitations as well.

[00:28:50] Speaker 05:
And if you look at page 31 of Corning's brief and the annotated excerpt of exhibit 2007,

[00:29:04] Speaker 05:
You will see that drawing and what that's depicting is if you think of a cylinder and you put a washer on it, on the end of a cylinder, that that washer will reside around or encircle the inside part or portion of the body.

[00:29:24] Speaker 05:
PPC can't explain why that doesn't meet the claim limitations even under their construction.

[00:29:32] Speaker 05:
My last point very quickly

[00:29:34] Speaker 05:
axial length.

[00:29:37] Speaker 05:
PPC themselves show in figure 16 an embodiment that they describe as a continuity member that the only portion of that continuity member that touches the post is the inner radial edge and that continuity member is shown

[00:30:08] Speaker 05:
on page 34 of Corning's brief.

[00:30:12] Speaker 05:
And in column 14 of the patent, it is explicitly explained that that contact on the inner radial edge is the only contact that provides the continuity for that device.

[00:30:29] Speaker 00:
And Mr. Walters, I think we have your argument.

[00:30:32] Speaker 00:
Thank you.

[00:30:32] Speaker 00:
We need to give Mr. Jakes his rebuttal time.

[00:30:36] Speaker 00:
How much time?

[00:30:45] Speaker 03:
If it would please the panel, I don't have anything to add unless there's a question.

[00:30:48] Speaker 02:
Well, how do you respond to the fact that if you look at Figure 35, it's not actually encircling, that it's connected to the end of and then on a different plane.

[00:30:58] Speaker 02:
It may have a circular feel to it, but it doesn't actually encircle anything.

[00:31:04] Speaker 03:
Well, if you look at the fact that the word around, using all the other context, means encircle.

[00:31:09] Speaker 03:
You've got this one example where it refers to a pseudo coaxially curved arm

[00:31:15] Speaker 03:
in a yin-yang like fashion around the continuity member.

[00:31:20] Speaker 03:
I think you have to take all that into account looking at the figure and what it's describing.

[00:31:24] Speaker 03:
So around there means partially around and it may not be in the same plane but it can encircle the post or the continuity member, at least in part.

[00:31:41] Speaker 00:
Thank you.

[00:31:41] Speaker 00:
Thank you Mr. Jakes.