[00:00:08] Speaker 04:
The last case this morning is Sonics Technology versus Publications International et al.

[00:00:16] Speaker 04:
2016-14-49, Mr. Handgardner.

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

[00:00:28] Speaker 01:
May it please the Court, John Handgardner on behalf of Sonics Technology.

[00:00:32] Speaker 01:
We're here today looking at a case under the Nautilus standard, which is pretty often recited these days, but just to keep it all clear before us.

[00:00:43] Speaker 01:
The inquiry is whether the claims, not just a particular term in the claim, but the claims read in light of the specification delineating the patent and the prosecution history fail to inform with reasonable certainty those skilled in the art about the scope of the invention.

[00:00:59] Speaker 01:
There's a lot in that.

[00:01:01] Speaker 01:
And there's additional statements from the Supreme Court in Nautilus that are important to keep in mind, I think, particularly in this case.

[00:01:08] Speaker 01:
The standard, as the Supreme Court said.

[00:01:10] Speaker 04:
Your problem, though, isn't the word visually subjective?

[00:01:16] Speaker 01:
It is, Your Honor.

[00:01:16] Speaker 04:
It's got different visual abilities.

[00:01:20] Speaker 01:
Your Honor, like many terms and claims, it is subjective.

[00:01:23] Speaker 01:
And I think the term subjective objective has become

[00:01:27] Speaker 01:
sort of a mantra on the defendant's side in this case.

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And I think that's where the district court got a bit tripped up, frankly.

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This court has routinely upheld claim limitations that are subjective.

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And we talked about a number of these cases, but we can go all the way back.

[00:01:45] Speaker 03:
I'm not sure that you're making the distinction you want to make when you

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embrace the term subjective to refer to things like substantial or other words like that.

[00:02:01] Speaker 03:
They're not subjective in the sense that I think the most troublesome cases that you have to deal with, like interval licensing, they don't have to do with interior mental states.

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They have to do with judgments of various sorts.

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So subjective is not making, it seems to me, the distinction on which

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your argument on appeal turns, that perceptual abilities do not have to do with interior mental states.

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They have to do with the normal range of the physical capacities of human eyes.

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And it probably excludes Ted Williams, but except for Ted Williams, you know, who had extraordinary vision at the plate, there's lots of objective information about what human eyes can see.

[00:02:51] Speaker 01:
And Your Honor, I agree with you that subjective is a bit of a distraction.

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But where we disagree is that the visually negligible standard is an internal human state, any more than any of these other claim terms that we're talking about.

[00:03:06] Speaker 01:
If you look at the DDR Holdings case, that dealt with visual dispersal.

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In the DDR Holdings, there was a specific finding

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that there was a known standard in the industry, that the terms, even though they looked somewhat, and I'm going to use your words, but subjective, they were terms that those in the arts could easily apply and had a known standard.

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And here you have your expert testifying that there is no technical standard that he knows of.

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And he said, you know, I just look

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And if it crosses my threshold, then it's visually negligible.

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I mean, that's difficult testimony for you to get around.

[00:03:54] Speaker 01:
Your Honor, that testimony should be viewed in context.

[00:03:57] Speaker 01:
And if we're going to consider, if the court's going to consider the extrinsic evidence in this case, which we don't believe it should, the district court said it did not consider that testimony in reaching its decision, yet it talked about that testimony.

[00:04:12] Speaker 01:
if the extrinsic evidence is going to be considered, that should come after we look at everything else involved in this case.

[00:04:20] Speaker 01:
And I do think it's critically important to heed the Supreme Court's guidance that certainty must be viewed in the context of the subject matter of the invention that we're talking about.

[00:04:31] Speaker 02:
But we did say in interval licensing that there need to be some kind of objective boundaries.

[00:04:37] Speaker 01:
So what are the objective boundaries for visually negligible?

[00:04:41] Speaker 01:
The objective boundaries are established in the specification through a series of factors and criteria that are laid out in substantial detail.

[00:04:49] Speaker 01:
Unlike interval licensing, where it was a muddled specification with different embodiments and it was unclear whether the unobtrusive language applied to which embodiment.

[00:04:59] Speaker 02:
I don't see substantial detail in the specification.

[00:05:02] Speaker 02:
So why don't you point to me your best places in the spec that you think.

[00:05:07] Speaker 02:
or in the written description that you think satisfy the objective boundary requirement of interval licensing?

[00:05:15] Speaker 01:
Absolutely, Your Honor.

[00:05:17] Speaker 01:
I would like to actually, well, I'll go directly to the specification and maybe come back to the claim language.

[00:05:22] Speaker 01:
Within the specification, certainly the clearest delineated section of discussion is in column four, line 60 through column five, line 15.

[00:05:32] Speaker 01:
which are the detailed examples and laying out the factors affecting visual negligibility.

[00:05:38] Speaker 01:
The actual text calls it out as these are what the practitioner needs to be aware of in understanding visual negligibility.

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It identifies three factors, differentiation of graphical indicators, the ability for a person to visually differentiate between the graphical indicators, and it says that they should not be differentiable to a person

[00:06:02] Speaker 01:
It refers to the brightness of the graphical indicators on the page and to the homogeneity of them.

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So in other words, a homogeneous pattern is less obtrusive than a non-homogeneous pattern.

[00:06:17] Speaker 03:
And then... You really want to use the word obtrusive?

[00:06:22] Speaker 01:
Well, this is how it's described.

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I'm using the language from the specification and it uses this language.

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It goes then into the particular objective characteristics that are used to understand this.

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And it talks about the size of the dots, the size of the state zones that contain those dots, the relative size of the dots as compared to the state zones.

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And we'll talk about specific embodiments where it provides percentages.

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It talks about the shape of the dots themselves.

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the density of the dots, how closely packed they are, the pitch.

[00:06:55] Speaker 04:
Can a claim mean different things to different people?

[00:06:59] Speaker 01:
No, it cannot.

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A claim must mean the same to all people.

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And the reason that the specification includes these objective criteria is to provide that level of guidance to a person of skill in the art.

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And it not only provides them in the abstract in terms of the number of dots, the density of dots, and these other factors, it provides two

[00:07:21] Speaker 01:
very specific, very concrete examples that are directly linked to visual negligibility.

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It flat out says that two embodiments will result in visually negligible graphical indicators.

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And those embodiments have a lot packed into them.

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In the first embodiment, each square centimeter of the selected zone on a surface includes more than 3,000 state zones.

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So it's defining a size of one square centimeter as 3,000 state zones.

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It's giving you a precise size requirement for state zones.

[00:07:52] Speaker 02:
Those limitations aren't in the independent claims, are they?

[00:07:56] Speaker 01:
No, those limitations are in the two dependent claims, 60 and 77.

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But they also inform, again, and this is why I emphasize the language from novelists,

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we look at the claims as a whole.

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So this language in the specification and in the claims as a whole informs the understanding of a person's skill in the art.

[00:08:13] Speaker 02:
But the independent claim by definition has to be broader than the dependent claims.

[00:08:17] Speaker 01:
It is.

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And so the claim is not.

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The independent claim nine, for example, is not limited by these constraints.

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But they do inform the person of skill in the art the meaning of this visually negligible requirement.

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by providing criteria.

[00:08:33] Speaker 01:
And this is exactly the same situation that is in Eibel process.

[00:08:39] Speaker 01:
If you look at the claims in Eibel process, it talks about a substantially higher elevation.

[00:08:43] Speaker 01:
Well, what does that mean?

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That may not be an observation made by a human being, but the determination of what is substantially different is a human.

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It could vary from human to human.

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If you take 10 people and put them in a room and ask if a particular line is substantially higher at one end than another, you may get 10 different results.

[00:09:02] Speaker 01:
There is the same level of uncertainty in the Eibel process situation as is being complained of here.

[00:09:12] Speaker 01:
But again, as here in Eibel process, the Supreme Court relied on the fact that substantial elevation was described in the patent itself and the specification.

[00:09:24] Speaker 01:
You have two examples exactly like we have here.

[00:09:27] Speaker 01:
One of them described a degree, a four degree elevation change.

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And the other described a 12-inch elevation change.

[00:09:34] Speaker 01:
The Supreme Court did not limit the claims to those particular elevation changes.

[00:09:38] Speaker 01:
But the Supreme Court very clearly said those examples provide exactly the sort of guidance to persons of skill in the art so that they understand what these claims mean.

[00:09:48] Speaker 01:
They understand the scope with the reasonable certainty that the Supreme Court demands.

[00:09:54] Speaker 01:
And the same is true here.

[00:09:55] Speaker 01:
Now, in that case, it didn't have even as much detail in the Apple process case as we have here.

[00:10:01] Speaker 01:
Because again, these examples go into excruciating detail about the size of the state zone, the ratio of the size of the dot to the state zone.

[00:10:11] Speaker 01:
And this patent also has the same additional context that was so important to the Supreme Court novel process.

[00:10:19] Speaker 01:
The Supreme Court goes out of its way to describe the fact that persons of skill and the art understand these things.

[00:10:23] Speaker 01:
They know how to apply these things.

[00:10:25] Speaker 02:
Right, but you didn't have any testimony that persons of skill and the art did understand these things.

[00:10:31] Speaker 02:
you had your own expert essentially saying, well, I just use my own personal standards.

[00:10:37] Speaker 02:
That doesn't say anything about what those reasonable skill in the art understood.

[00:10:42] Speaker 01:
Again, if we were to go to the extrinsic evidence, Dr. Shruck's testimony is actually much more involved in that.

[00:10:51] Speaker 01:
That's one statement out of it.

[00:10:52] Speaker 01:
He says very repeatedly that this is a repeatable, understandable standard, and that people of skill in the art do understand what this means.

[00:10:59] Speaker 01:
There is not a number I can attach to it, like almost every claim that exists that I've certainly ever litigated in my life.

[00:11:07] Speaker 01:
I can't say that x equals 7, therefore it infringes.

[00:11:11] Speaker 01:
We don't have that situation ever in patent cases.

[00:11:15] Speaker 01:
The same situation here.

[00:11:17] Speaker 01:
Yet, persons of skill in the art understand the meaning.

[00:11:20] Speaker 01:
It's also, I will say, and I see I'm into my rebuttal.

[00:11:23] Speaker 01:
So what construction would you give to a jury?

[00:11:26] Speaker 01:
that it should be given its ordinary meaning.

[00:11:28] Speaker 01:
And that's what the party stipulated in this case, that visually negligible.

[00:11:32] Speaker 01:
This issue came up after the close of discovery when they had raised 100 other indefiniteness issues other than this one.

[00:11:39] Speaker 01:
But it came up because of the arguments that you were making.

[00:11:42] Speaker 01:
No, Your Honor, it did not.

[00:11:43] Speaker 01:
And this was spun up in a deposition after it had never been raised with an expert who had not even been prepared for this topic because there had never been a dispute, both experts in this case,

[00:11:56] Speaker 01:
from day one agreed that the accused products were visually negligible, and there had never been an indefiniteness issue raised.

[00:12:05] Speaker 01:
Now, not only that, their expert's testimony in his opening report was that it's easy to figure out how to make something that is visually negligible.

[00:12:15] Speaker 01:
You just control the dot size and the brightness.

[00:12:18] Speaker 01:
And we've cited that in our brief to their expert's own testimony.

[00:12:21] Speaker 01:
explaining how to make something visually negligible.

[00:12:23] Speaker 01:
It was a well-understood concept.

[00:12:25] Speaker 01:
It's also reflected in the Lamore decision, the Lamore prior art, and in other prior art discussed, Yamaguchi discussed by Mr. Engels.

[00:12:33] Speaker 01:
He discusses how Lamore explains visually negligible.

[00:12:37] Speaker 01:
Their expert, Mr. Engels, discusses how Yamaguchi explains visually negligible.

[00:12:42] Speaker 01:
He applies it in the context of the prior art.

[00:12:44] Speaker 01:
He applies it in the context of the accused products.

[00:12:47] Speaker 01:
He understands it perfectly well.

[00:12:49] Speaker 01:
This is an issue that was created, for lack of a better word.

[00:12:53] Speaker 01:
There is no zone of uncertainty, such as the Supreme Court was concerned about in this case.

[00:12:59] Speaker 01:
This is an issue that has no bearing on anything in this case.

[00:13:03] Speaker 01:
There's never been a dispute about the accused products, and there is no dispute at the time.

[00:13:06] Speaker 04:
Would you like to say the remark from any of you guys?

[00:13:09] Speaker 01:
I would, thank you.

[00:13:11] Speaker 04:
Is it Mr. Coring or Kerry?

[00:13:19] Speaker 00:
Thank you.

[00:13:22] Speaker 00:
Good morning, Your Honors.

[00:13:23] Speaker 00:
May it please the court?

[00:13:26] Speaker 00:
My name is Jacob Corring.

[00:13:27] Speaker 00:
I'm here with my colleague, Terrence Sheehan.

[00:13:30] Speaker 00:
Together we represent the defendant's appellees, PIL, and its customers.

[00:13:38] Speaker 00:
The district court here correctly found the term visually negligible indefinite based on the admitted points that the claim term visually negligible is subjective,

[00:13:50] Speaker 00:
And it lacks any sort of objective standard against which to measure that subjective standard.

[00:13:55] Speaker 00:
Now, I heard counsel here talk a little bit about the term subjective and that there being some information in the specification.

[00:14:03] Speaker 00:
Let's be absolutely clear.

[00:14:06] Speaker 00:
The standard against which this claim is measured is the standard that counsel for Sonics told the district court.

[00:14:13] Speaker 00:
And that is that visually negligible means

[00:14:16] Speaker 00:
something that is visible but that does not interfere with the user's perception of the main information.

[00:14:22] Speaker 04:
In other words, that's functional.

[00:14:25] Speaker 04:
It's functional.

[00:14:25] Speaker 04:
It's not really subjective.

[00:14:27] Speaker 04:
It's something whatever works for its intended purpose.

[00:14:31] Speaker 00:
Well, in this case, I think, Your Honor, it is subjective because... In other words, that might be definite.

[00:14:37] Speaker 00:
If it were functional, perhaps it might be definite.

[00:14:40] Speaker 00:
But the issue here is that

[00:14:42] Speaker 00:
the baseline standard against which we're measuring whether or not these dots are sufficiently non-visible is from the user's point of view.

[00:14:53] Speaker 00:
And as Dr. Ashok, Sonic's expert, testified

[00:14:56] Speaker 00:
There's all sorts of issues that address whether or not a person is going to be able to see the dots.

[00:15:02] Speaker 04:
Now, these claims have gone through re-examination twice, haven't they?

[00:15:06] Speaker 04:
Yes, Your Honor.

[00:15:07] Speaker 04:
And this issue was not fatal to them.

[00:15:12] Speaker 00:
So what I would say, Your Honor, is the issue of indefiniteness wasn't raised at the time, probably because the standard at the time was not the Nautilus standard.

[00:15:23] Speaker 00:
It wasn't this reasonably certain standard that we have right now.

[00:15:26] Speaker 00:
It was the old insolubly ambiguous.

[00:15:28] Speaker 04:
But indefiniteness has always been part of the law.

[00:15:31] Speaker 04:
And whether the Supreme Court changed the lingo or not, indefiniteness was still an issue.

[00:15:37] Speaker 00:
Yes, Your Honor.

[00:15:37] Speaker 00:
And to be honest, we believe that even under the old insolubly ambiguous standard, the same way that the aesthetically pleasing term was found indefinite, datamized,

[00:15:46] Speaker 00:
this term should probably be found indefinite under that.

[00:15:49] Speaker 03:
Whatever else this is, this is radically different from aesthetically pleasing.

[00:15:53] Speaker 03:
That's a matter of taste, of preference, of value judgment, which is inherently subjective in the absolute core meaning of that.

[00:16:01] Speaker 03:
That case is completely irrelevant to this.

[00:16:04] Speaker 03:
The interval licensing is at least in the general field.

[00:16:08] Speaker 03:
But this has nothing to do with aesthetic taste or preference.

[00:16:14] Speaker 03:
This has to do with what the eye can see in the presence of a particular object.

[00:16:21] Speaker 03:
And I'm not sure that that's subjective at all.

[00:16:25] Speaker 00:
Your Honor, I agree with you that the case here that is most on point is interval licensing.

[00:16:30] Speaker 00:
And I know that Your Honor is familiar with that case.

[00:16:33] Speaker 00:
The reason that we talk about this in terms of subjectivity is because the evidence that was developed in this record points to how we determine whether or not these dots are visually negligible.

[00:16:47] Speaker 03:
And none of the experts had the slightest difficulty in doing that here, right?

[00:16:52] Speaker 00:
Yes, because they each said they were applying their own personal opinion in doing it.

[00:16:56] Speaker 02:
The ultimate problem, Your Honor, is that... So why is it that your expert in the beginning felt that these

[00:17:03] Speaker 02:
accused devices did meet the standard.

[00:17:08] Speaker 02:
And yet your light bulb didn't go off until their rebuttal expert talked about the prior art.

[00:17:16] Speaker 00:
Your Honor, the light bulb probably should have gone off a lot sooner.

[00:17:19] Speaker 00:
But I think the reason that it didn't get raised as an issue is because the contentions in this case were unfortunately a little vague.

[00:17:29] Speaker 00:
And the issue of whether or not the prior art in this case showed visually negligible dots just wasn't raised by Sonics or its expert until the rebuttal expert report at the end of July of last year, or at the end of June of last year.

[00:17:44] Speaker 00:
And it was only once that the issue of whether or not the prior art showed visually negligible dots

[00:17:51] Speaker 00:
was never argued by Sonics at any part of the case.

[00:18:12] Speaker 00:
That was the first time that he said, well, these dots, maybe those dots, those don't look visually negligible.

[00:18:18] Speaker 00:
Maybe those are obtrusive.

[00:18:21] Speaker 00:
Maybe they get in the way.

[00:18:22] Speaker 00:
And when we asked Dr. Ashok, tell us why you believe that those dots in the prior art are not visually negligible, that's when he started

[00:18:33] Speaker 00:
stating his standard as being, well, it's from my own personal point of view.

[00:18:36] Speaker 00:
I'm taking a look at these dots, and I think that they're in the way.

[00:18:40] Speaker 03:
If you were asked a question like that, unless you had been prepared in advance to go and figure out what in the science of human cognition

[00:18:51] Speaker 03:
talk about measurements to which numbers could be attached, you would say exactly the same thing.

[00:19:00] Speaker 03:
It's perfectly clear.

[00:19:01] Speaker 03:
That's not interfering with that.

[00:19:03] Speaker 03:
What else do you want me to say?

[00:19:04] Speaker 03:
You never raised this before, and you might even kind of use the word subjective

[00:19:10] Speaker 03:
in a loose, you know, imprecise sense, a term that can cover a lot of different things from things that have nothing to do with human capacities to things that have to do with mental states as opposed to the properties of the physical organ of the human eye.

[00:19:27] Speaker 03:
So the idea that you build a whole theory around a casual set of observations in a deposition which was not even about that subject

[00:19:38] Speaker 03:
I mean, it seems to me it doesn't even tell you that there isn't, in fact, somewhere in the literature a way of attaching numbers to this, let alone whether anybody would need to attach numbers to figure out in any given case whether something was visually negligible or not.

[00:19:58] Speaker 00:
Well, I think, Your Honor, the problem with that line of thinking is that it assumes that there is a standard

[00:20:04] Speaker 00:
And it assumes that that standard can be met somewhere, can identify the point where dots go from negligible, I don't see them to... What is the art here?

[00:20:18] Speaker 03:
What is the art here that we're dealing with if you take a person of ordinary skill in the art?

[00:20:23] Speaker 03:
What's the art?

[00:20:23] Speaker 00:
A person of ordinary skill in the art in this case would probably be somebody an expert in printing and would understand

[00:20:31] Speaker 00:
printing information onto a sheet of paper and identify what information you want to demonstrate and what you want to show and what information you want the user not to notice.

[00:20:43] Speaker 03:
And do you think a person of ordinary skill in the art, a printer, would benefit from or even in the ordinary course look to some psychological metric

[00:20:58] Speaker 03:
that spoke about the properties of the human eye in deciding whether something is visually negligible, or do you think that maybe virtually every printer in the world would look at something and say, yeah, that's a problem, or no, that's not a problem?

[00:21:13] Speaker 00:
I think to answer your question, I don't know the answer to your question.

[00:21:18] Speaker 00:
But I do know this.

[00:21:19] Speaker 00:
There's probably a threshold below which nobody is concerned about dots interfering with other information on the page.

[00:21:28] Speaker 00:
For example, invisible dots.

[00:21:30] Speaker 00:
It's possible to print dots in infrared reflective ink, and those dots would not interfere with the other information on the page.

[00:21:40] Speaker 00:
But at what point in time do we increase the visibility of the dots, or how big do the dots need to be, or what does the pattern need to look like, or what ink do we use?

[00:21:51] Speaker 00:
At what point do we cross the threshold where

[00:21:55] Speaker 03:
And how do we know on this record that basically every relevant person wouldn't agree about that?

[00:22:03] Speaker 00:
Well, we know on the record that right now we have two experts who took a look at one critical piece of prior art.

[00:22:11] Speaker 00:
One said, those dots are not visually negligible.

[00:22:13] Speaker 00:
And the other one said, well, they clearly are.

[00:22:16] Speaker 00:
And that is the crux of the issue that was raised

[00:22:20] Speaker 00:
that caused this issue to be raised in front of the court.

[00:22:23] Speaker 02:
So is it your position that to the extent experts would disagree around the fringes, even if everybody could agree as to some central core of visual negligibility, that it has to be indefinite if there is even this fringe portion that the experts are going to disagree on?

[00:22:41] Speaker 00:
Not quite, Your Honor.

[00:22:42] Speaker 00:
Here's what I would say is if there was some sort of universal standard or some

[00:22:49] Speaker 00:
reference I could go to that might identify this is the way that eyes work, and this is the data that's on a piece of page, and this is the level of printing below which eyes don't optically recognize those dots, then I think experts can disagree about whether or not it meets that standard.

[00:23:09] Speaker 00:
But if you've got two experts who come in and say, well, I think these dots are visually negligible, and the other expert who comes in and says, I think that they're not,

[00:23:17] Speaker 00:
And the reason that they're saying that they disagree is because, well, because I think it is visually negligible based on my own perception.

[00:23:25] Speaker 00:
And then the other expert says, well, now mine is based on my perception.

[00:23:28] Speaker 00:
That's not the kind of dispute that shows a definite claim.

[00:23:33] Speaker 00:
It's the kind of dispute that illustrates that the underlying claim itself has indefiniteness issues that we can't resolve without some additional information.

[00:23:42] Speaker 00:
none of which is on this record or was in front of the district court.

[00:23:45] Speaker 03:
I'm having trouble imagining the printer, that's the audience for this patent, going out and looking at highly complicated psychologist literature, psychology is even the right field, about the capacities of the human eye, as opposed to looking at the thing.

[00:24:12] Speaker 00:
Here's what we know based on the record in front of us, is that there was a piece of prior art, the Lemoore piece of prior art, and it stated the intent of this piece of prior art is to put information on top of a map, underneath a map, that can be read by an optical pen, and that we don't want that information to interfere with the usability of the map by the people who use the map.

[00:24:38] Speaker 00:
And Sonic's expert came in and said, well, I'm taking a look at those dots, and those dots are not visually negligible.

[00:24:45] Speaker 00:
Well, hold on a second.

[00:24:46] Speaker 00:
If indeed all that was required of the L'Amour inventor was to say, if all I want to do is print these dots, and look, everybody understands how this works.

[00:24:56] Speaker 00:
This is something that's just common sense.

[00:24:59] Speaker 00:
I can take a look at it.

[00:25:00] Speaker 00:
Then Dr. Ashok should have said, look, common sense.

[00:25:03] Speaker 00:
They said that they did not want those dots to be seen.

[00:25:06] Speaker 00:
They obviously printed them at a level that was appropriate.

[00:25:09] Speaker 00:
And he should have said, based on that, that standard, then those dots are visually negligible.

[00:25:16] Speaker 00:
But instead he came in and he said, look, there's all sorts of things here that I'm looking at, my personal view of this, that affect whether or not I believe this is visually negligible.

[00:25:25] Speaker 00:
Many of those items, by the way, are not listed in the specification at all.

[00:25:29] Speaker 00:
Things like the particular pattern,

[00:25:32] Speaker 00:
whether or not there's lines in between dots, other kinds of issues that he raised that were particular to him.

[00:25:38] Speaker 04:
Mr. Curran, what about claims 60 and 77 that have more definiteness?

[00:25:44] Speaker 00:
I'm sorry, Your Honor.

[00:25:44] Speaker 04:
Can you repeat that?

[00:25:45] Speaker 04:
Claims 60 and 77 are even more definite.

[00:25:49] Speaker 00:
So claims 60 and 77, first of all, just to address the issue up front, any argument relative to those claims was waived by Sonics at the district court.

[00:26:00] Speaker 00:
I understand they disagree with that, but it's pretty clear if you take a look at the record, they failed to raise it timely at the district court.

[00:26:07] Speaker 00:
They failed to raise it.

[00:26:08] Speaker 00:
Well, the district court found waiver, right?

[00:26:10] Speaker 00:
The district court did find waiver, based on the fact that they raised it for the first time at oral argument three months after briefing was done.

[00:26:16] Speaker 00:
And then in this court, they didn't address waiver in their opening brief.

[00:26:21] Speaker 00:
They didn't cite the appropriate standard, which is abuse of discretion.

[00:26:26] Speaker 00:
offer any argument or case law regarding why she might have abused her discretion.

[00:26:31] Speaker 00:
So the issues of 60 and 77 just frankly aren't in front of this court.

[00:26:35] Speaker 00:
That being said, even if they were in front of this court, or even if we were to consider that argument, the issue about the additional density limitations, first of all, I think Sonic cites in its reply brief to Halliburton note three, which relates to the issue of claim differentiation.

[00:26:56] Speaker 00:
And what claim differentiation tells us and what that note from Halberd tells us is that if we add this additional limitation in a dependent claim, the assumption is that it doesn't define the information in the independent claim.

[00:27:10] Speaker 00:
It's a new piece of information.

[00:27:12] Speaker 00:
So they cite it for the wrong purpose, but it helps illustrate how those density limitations don't help define visually negligible in this case.

[00:27:23] Speaker 00:
Those additional limitations, and as the expert told us,

[00:27:26] Speaker 00:
There's lots of different considerations when we print.

[00:27:30] Speaker 00:
One of them is, for example, ink.

[00:27:32] Speaker 00:
And for example, if I were to print a dot pattern that met the density limitations in claim 1677, but I printed it super dark with the intention that everybody would see it, do I infringe that claim?

[00:27:47] Speaker 00:
I don't know, because the test here and the standard here

[00:27:50] Speaker 00:
depends on who is viewing the dots and their subjective view or their personal view of what they think those dots look like.

[00:27:57] Speaker 03:
Sometimes I find it helpful and I think most of us do in thinking about whether something is definite is to ask the question

[00:28:07] Speaker 03:
How else might they have drafted their claim to eliminate, to be more definite?

[00:28:14] Speaker 03:
How do you think they might do that in order to capture their invention?

[00:28:18] Speaker 03:
I think, you know, not capture it in a way that doesn't trivially allow an end run.

[00:28:22] Speaker 00:
I think they could have done what the Sonics explicitly told the district court they didn't do, which was they could have provided an example in the specification and then limited the term visually negligible to that example

[00:28:35] Speaker 00:
or at least provided some structure within the specification that those ordinary skill in the art could look to, to find a repeatable, accurate application of the claim term and to figure out its objective.

[00:28:49] Speaker 02:
Or if 60 and 77 were independent claims without reference to visual negligibility.

[00:28:55] Speaker 00:
Yes, Your Honor.

[00:28:56] Speaker 00:
I think if they eliminated visual negligibility and just had those limitations in claims 60 and 77 without having that

[00:29:03] Speaker 00:
a subjective, indefinite term in it, yes, then those claims would probably be indefinite.

[00:29:09] Speaker 04:
Thank you, counsel.

[00:29:11] Speaker 04:
Mr. Hancockner has a little more time.

[00:29:16] Speaker 01:
Thank you.

[00:29:17] Speaker 01:
Just to touch on that last point, there's absolutely no evidence that it would be possible to make a dot pattern that satisfied the requirements of claims 60 and 77.

[00:29:28] Speaker 01:
that would not be visually negligible.

[00:29:29] Speaker 01:
That just is not something that's been touched on.

[00:29:31] Speaker 01:
There's no evidence for or against that.

[00:29:33] Speaker 01:
So anything you've heard on that is just counsel's argument.

[00:29:37] Speaker 01:
I think it's also really important to understand that there was no disagreement, as described by counsel, between the experts here.

[00:29:43] Speaker 01:
Again, this case doesn't turn on expert testimony.

[00:29:46] Speaker 01:
It can be fully understood within the interview.

[00:29:47] Speaker 03:
Well, he referred, at one point, to there was a particular, I'm going to call it a picture, a pattern or something, whatever it is.

[00:29:53] Speaker 03:
And your guy said, negligible.

[00:29:56] Speaker 03:
the other guy said, not negligible or the reverse.

[00:29:58] Speaker 03:
Was there such an incident, a particular pattern on which the experts disagreed?

[00:30:03] Speaker 01:
No, and I'll explain why.

[00:30:04] Speaker 01:
Thanks.

[00:30:05] Speaker 01:
The expert, Amit Ashok, the expert for Sonics, agreed at all points that the Lemoore reference discloses the concept of visually negligible indexes dot patterns.

[00:30:18] Speaker 01:
And there's never been a dispute that that idea of making the pattern visually negligible, so it doesn't interfere with the map,

[00:30:26] Speaker 01:
was part of Lemoore.

[00:30:28] Speaker 01:
What Mr. Ashok did testify was that one of the embodiments in Lemoore, the checkerboard pattern, might not result in a visually negligible pattern because it was contrary to some of the instruction of Lemoore himself.

[00:30:43] Speaker 01:
Lemoore placed a big emphasis on an isotropic distribution of dots

[00:30:47] Speaker 01:
And Mr. Ashok was simply pointing out that that's not an isotropic distribution.

[00:30:51] Speaker 02:
But he didn't say they might not.

[00:30:52] Speaker 02:
He said they tend to make it more visible to the reader's eye.

[00:30:58] Speaker 02:
Yes.

[00:30:58] Speaker 02:
And he used the phrase visually intrusive.

[00:31:01] Speaker 01:
Yeah, more visi- tends to make it visually intrusive.

[00:31:04] Speaker 01:
He did not say that it couldn't be visually negligible, but he did say it could become visually intrusive.

[00:31:09] Speaker 01:
And that was his concern.

[00:31:10] Speaker 01:
And that was actually reflected in the second re-examination, the testimony of Mr. Syerson, the printing expert,

[00:31:16] Speaker 01:
that Sonics offered to the Patent Office and that resulted in the issuance of the re-examination certificate.

[00:31:23] Speaker 01:
That he testified at length about that checkerboard, or not at length, but he testified about that same checkerboard pattern and this issue of visual negligibility was central to the dispute regarding Lamour in the re-examination.

[00:31:36] Speaker 01:
Dr. Shoke's testimony related to that same issue.

[00:31:40] Speaker 01:
Mr. Engels, their expert, did not ever say that

[00:31:44] Speaker 01:
every one of the Lamour patterns was always going to be visually negligible.

[00:31:48] Speaker 01:
There was no testimony on that by Mr. Engels.

[00:31:50] Speaker 01:
He just said the same thing that Dr. Shoke said, Lamour discloses the concept of visually negligible.

[00:31:57] Speaker 03:
Okay, I just want to nail this down because one of the very most concrete things your friend on the other side of the aisle said was, as I heard it, there was a pattern

[00:32:07] Speaker 03:
The two experts looked at the pattern, and they disagreed about whether that pattern was visually manageable.

[00:32:13] Speaker 03:
Is that true or not true?

[00:32:15] Speaker 01:
Not true.

[00:32:18] Speaker 04:
OK.

[00:32:18] Speaker 04:
Counselor, what is not indefinite is your timing.

[00:32:22] Speaker 01:
Thank you.

[00:32:23] Speaker 04:
Thank you.

[00:32:24] Speaker 04:
We'll take a case on revisions.

[00:32:29] Speaker 00:
Thank you.

[00:32:30] Speaker ?:
All rise.