[00:00:00] Speaker 04: First case is BASF Corporation versus Johnson-Mathie, 2016-1770. [00:00:06] Speaker 04: Ms. [00:00:07] Speaker 04: Maynard. [00:00:17] Speaker 01: May it please the court? [00:00:18] Speaker 01: Deanne Maynard on behalf of BASF. [00:00:20] Speaker 01: The limitations at issue here should be given their plain and ordinary meaning. [00:00:26] Speaker 01: A material is effective if a person of skill in the art would consider it, one, to perform the recited catalytic functions. [00:00:34] Speaker 05: So you just said, one, to perform. [00:00:36] Speaker 05: In your brief, you seem to go back and forth between does perform and can perform. [00:00:41] Speaker 05: Are there any material differences in those variations? [00:00:44] Speaker 01: I think it needs to be able to perform, can perform, Your Honor. [00:00:47] Speaker 01: So what circumstances? [00:00:49] Speaker 01: Well, if a person of skill in the art would consider it to be [00:00:53] Speaker 01: an SCR catalyst or an AMOX catalyst in the art of exhaust systems, so it needs to be in the art of exhaust systems, then it is within the scope of these particular limitations. [00:01:06] Speaker 01: Why didn't the claims just recite SCR and AMOX catalyst? [00:01:11] Speaker 01: Well, I think they could have, Your Honor, and it would mean exactly the same thing as it does here, and I think the specification makes that clear, because the specification essentially defines SCR composition. [00:01:21] Speaker 01: an amox composition as the words of a claim, a material effective to catalyze the respective functions. [00:01:29] Speaker 01: And on appeal, I don't take JMI to be disputing that that is both the ordinary meaning of the claim language here, and they don't dispute that a person of skill in the art knows what are SCR catalysts and what are amox catalysts in the art of exhaust systems. [00:01:44] Speaker 01: Instead, their argument to this court is that this patent has given those terms a special meaning. [00:01:50] Speaker 01: And they're wrong about that for two reasons. [00:01:52] Speaker 04: Ms. [00:01:52] Speaker 04: Maynard, it doesn't look so special. [00:01:54] Speaker 04: Virtually every element in the periodic table is generically recited by group. [00:02:01] Speaker 01: I disagree with that, Judge Laurie. [00:02:03] Speaker 01: The patent gives a lot of guidance, as Your Honor notes, as to what can be the various catalysts, which groups 5B, [00:02:20] Speaker 04: 5B, 6B, 7B, 8B, 1B, or 2B? [00:02:24] Speaker 01: That's right. [00:02:25] Speaker 01: I believe your honor's reading from the bottom of column six, which is listed out. [00:02:29] Speaker 01: That provides a lot of detail and information. [00:02:31] Speaker 01: That makes it more definite, your honor, not less. [00:02:33] Speaker 01: There's a lot of information in here from which a person of skill in the art could. [00:02:37] Speaker 04: In terms of effectiveness for oxidation or reduction, that's rather vague. [00:02:42] Speaker 01: Well, these are terms of art, your honor, that persons of skill in the art know. [00:02:47] Speaker 01: These are well-known catalysts. [00:02:49] Speaker 01: And what this invention claims is not these well-known catalysts. [00:02:55] Speaker 01: It's arrangements of these well-known catalysts in a specific architecture. [00:02:59] Speaker 01: And a person of skill in the art knows what SCR catalysts are and which are effective. [00:03:03] Speaker 02: When we're construing claims, are we supposed to say which words are important to create limitations and which ones aren't really that important to the novelty of the invention? [00:03:16] Speaker 02: No, Your Honor. [00:03:17] Speaker 02: It seems inconsistent with our [00:03:19] Speaker 01: with our case law. [00:03:20] Speaker 01: My point is, I think, slightly different than that. [00:03:22] Speaker 01: So my point is that persons of skill in the art know what materials fall within SCR catalysts and AMOX catalysts in the context of exhaust systems, and the intrinsic evidence in this patent makes it clear that this is a well-known field and those are well-known catalysts. [00:03:38] Speaker 01: Indeed, JMI's own patent claims a catalyst with almost precisely the same words [00:03:44] Speaker 01: At appendix 1253, there's a JMI patent that claims a first catalyst effective to oxidize NOx. [00:03:51] Speaker 01: These are well-known terms. [00:03:52] Speaker 01: This is how one of skill in the art claims a catalyst. [00:03:55] Speaker 01: A catalyst is something that does take its name from what it does. [00:04:02] Speaker 01: It catalyzes. [00:04:02] Speaker 01: And a person of skill in the art would say an SCR catalyst is one that can catalyze, in the context of an exhaust system, the SCR of NOx. [00:04:13] Speaker 01: Their patent shows that that's how they know it means. [00:04:16] Speaker 01: That's what it means. [00:04:17] Speaker 01: And also, the intrinsic record shows that there are well-known substances, Judge Laurie, that perform dysfunction. [00:04:25] Speaker 01: The patent gives a lot of information about the crystalline structure that would be required, the types of metals that can be used, both for the SCR catalyst as well as for the Amox catalyst. [00:04:36] Speaker 02: Are you asking us to conclude that this is what [00:04:41] Speaker 02: claim means, or are you asking us to conclude that there is at least additional analysis that needs to occur to determine whether one of skill and the art would have understood that? [00:04:52] Speaker 02: In other words, do you want a reversal on this question or a vacated remit? [00:04:57] Speaker 01: We think this court can reverse on this record and enter a claim construction. [00:05:03] Speaker 01: Both parties agree, if it's not indefinite, to the claim construction means any material that is effective [00:05:10] Speaker 01: to catalyze these reactions. [00:05:12] Speaker 05: I thought there was some dispute about whether, assuming it's not indefinite, the right construction was what a relevant skilled artisan would understand it to mean full stop or a relevant skilled artisan in the exhaust system field would mean it. [00:05:31] Speaker 05: You seem to have been very careful throughout your brief to always attach the exhaust [00:05:38] Speaker 05: exhaust system field. [00:05:40] Speaker 05: Is that in fact a dispute between the parties? [00:05:42] Speaker 01: That is a dispute between the parties. [00:05:44] Speaker 01: Judge Chironto, we think that regardless of whether that term is expressly read in, it would be implicit. [00:05:50] Speaker 01: But we do think the better construction and the more informative construction would be a catalyst that a person of skill in the art would consider to be an SCR catalyst in the art of exhaust systems for two reasons. [00:06:00] Speaker 01: One, the context of the claim makes clear that that's what we're talking about, an exhaust system. [00:06:06] Speaker 01: That's the preamble to the claim makes that clear. [00:06:09] Speaker 01: That's the use. [00:06:10] Speaker 01: And the field of the invention and the patent makes clear that's the field. [00:06:13] Speaker 01: And as this court interprets terms of art generally as to the relevant field, we think that our proffered construction is the better one. [00:06:24] Speaker 01: To your question, Judge O'Malley, whether you enter that construction or you remand for the district court to enter that construction, we think it would be more efficient to go ahead [00:06:31] Speaker 01: and enter that because we believe that's the correct construction under this court's case law. [00:06:36] Speaker 01: And then the case can move on to the other issues on remand. [00:06:40] Speaker 01: Again, I would point out, JMI doesn't dispute that if the claim terms are given their ordinary meaning, a person of skill in the art knows what is an SCR catalyst and what is an AMOX catalyst in the relevant art of exhaust systems. [00:06:55] Speaker 01: Their expert's declaration to the contrary is based on the notion that this patent [00:07:00] Speaker 01: create some special meaning. [00:07:02] Speaker 01: And JMI is wrong about that for two reasons. [00:07:05] Speaker 01: First, nothing in the patent expressly redefines effective or expressly disavows the full functional limit of these limitations. [00:07:16] Speaker 01: So given that, under this court's case law, these claims are interpreted to mean any material that a person of skill in the art considers can perform the recited function. [00:07:26] Speaker 01: That's how this court reads words like data link, clamp, container. [00:07:31] Speaker 01: Catalyst is a word like that. [00:07:32] Speaker 01: It's a word that takes meaning from what it does. [00:07:35] Speaker 01: And this is a perfectly fine way to claim something, especially one like this that's so well understood in the art. [00:07:43] Speaker 02: There's also a lot of discussion in these briefs about the material compositions language. [00:07:49] Speaker 02: Would that be appropriate for us even to consider if we agreed with you and were sending it back? [00:07:54] Speaker 02: Shouldn't that be something that [00:07:56] Speaker 02: The lower court should review in the first instance? [00:08:01] Speaker 01: I'm not sure I understand what Your Honor means by the material composition. [00:08:05] Speaker 02: Well, there was discussion about the construction of the material composition limitation. [00:08:10] Speaker 01: Right. [00:08:11] Speaker 01: And that is this limitation, the effective limitation. [00:08:14] Speaker 01: I think the material composition limitation should be construed to mean any material that a person of skill in the art of exhaust systems would consider to be an SCR catalyst [00:08:25] Speaker 01: or an Amox catalyst. [00:08:29] Speaker 02: But should our construction be a limiting one? [00:08:32] Speaker 02: In other words, could there be other aspects of the material composition's limitation that are still in dispute? [00:08:38] Speaker 01: I don't think that they've argued any other limitations to material. [00:08:42] Speaker 01: I don't think there's a dispute between the parties about material. [00:08:45] Speaker 01: The only dispute about the claim construction is the one that Judge Gerronto identified, which is whether we should make clear that it's an SCR catalyst in the art of exhaust systems or not. [00:08:55] Speaker 04: I guess you would emphasize that the claim says material effective of catalyzing rather than an effective amount. [00:09:06] Speaker 04: It doesn't say effective amount, does it? [00:09:08] Speaker 01: It doesn't, Your Honor. [00:09:09] Speaker 01: It's just describing a performance quality. [00:09:12] Speaker 01: Would a person of skill in the art consider this to be an SCR catalyst? [00:09:15] Speaker 01: And the terms, as Judge Amali pointed out, the patent does use this phrase [00:09:21] Speaker 01: interchangeably with the terms SCR catalyst and AMOX catalyst. [00:09:25] Speaker 01: And it defines SCR composition, your honor, and AMOX composition. [00:09:31] Speaker 01: So in column five at line 47, it defines, so SCR composition is defined higher at line 39. [00:09:39] Speaker 01: SCR composition refers to a material composition effective to catalyze the SCR function. [00:09:45] Speaker 01: And then at line 46, column five, [00:09:49] Speaker 01: ammonia oxidation composition refers to a material composition effective to catalyze the ammonia oxidation function. [00:09:55] Speaker 01: The background section of the invention makes clear that these are well known in the art. [00:10:01] Speaker 01: Yes? [00:10:02] Speaker 05: As Johnson Matty says something or other like the same material at very, very different temperatures either will or will not catalyze nitrous oxide or something, what do you do with that [00:10:19] Speaker 05: variation in property as to the very same material. [00:10:24] Speaker 01: I think this court's case law makes clear, like in Geneva, that if a person of skill in the art would consider it to be an SCR catalyst under any conditions in an exhaust system, then it's covered by this limitation. [00:10:36] Speaker 01: Now again, of course, it would have to be organized in the architecture claimed for it to infringe. [00:10:41] Speaker 01: And just to be clear, this isn't going to be an issue actually at infringement in this case. [00:10:46] Speaker 01: What they're using are materials that are listed in this specification. [00:10:51] Speaker 01: That's what I wanted to ask you. [00:10:54] Speaker 02: How does this play out? [00:10:55] Speaker 02: Because tethering the language of a claim construction to the understanding of one of skill in the art is pretty unusual. [00:11:03] Speaker 02: Usually we're supposed to look at what one of skill in the art would assume and then come up with a construction that they would assume. [00:11:11] Speaker 02: Having the jury say what does one of skill in the art understand it to be, doesn't that mean you have to have expert testimony on the scope of the claim construction? [00:11:20] Speaker 01: Well, so, Your Honor, I don't think there is any dispute here about what is an SCR catalyst or what is an Amox catalyst. [00:11:27] Speaker 01: I don't think there will be any dispute about that. [00:11:31] Speaker 01: This is not going to be an issue at any trial. [00:11:33] Speaker 01: If there were a dispute about, at some point, hypothetically, in a case like this, around the edges of whether something really was a catalyst or not, then I think that would be an infringement question, not a claim construction question. [00:11:43] Speaker 01: But there's not going to be any dispute like that here. [00:11:45] Speaker 01: We're right in the middle of this. [00:11:47] Speaker 01: They've just relied on this for their indefinite disclaimer. [00:11:49] Speaker 05: Although there might have been essentially an extrinsic evidentiary and therefore factual dispute [00:11:58] Speaker 05: about whether relevant skilled artisans sufficiently understand what is an effective catalyst. [00:12:05] Speaker 05: As I understand it, your position is that in this case there is no such dispute because even their expert either explicitly or implicitly recognized that somebody would know what an effective catalyst was and instead drew his opinion by saying, as you said, that this patent requires a certain minimal level. [00:12:27] Speaker 01: That's right, Your Honor, exactly. [00:12:29] Speaker 01: There is no dispute here. [00:12:31] Speaker 01: I'm into my rebuttal time, but I'm happy to address why I think the reading of the patent is wrong, if you would like, or I'll save the rest of my time for rebuttal. [00:12:38] Speaker 04: Well, we'll let you save it. [00:12:39] Speaker 04: We wouldn't want you to exhaust your time. [00:12:42] Speaker 01: Thank you, Judge Laurie. [00:12:44] Speaker 04: Mr. McCann. [00:13:01] Speaker 00: May it please the court? [00:13:01] Speaker 00: Doug McCann from Fish & Richardson on behalf of Johnson & Matthew. [00:13:06] Speaker 00: The court has seen from the papers a key issue in the case is this issue of functional claiming and we certainly agree there's nothing per se improper with functional claiming. [00:13:16] Speaker 00: But we direct the court's attention to Halliburton which says fine, but when you have functional claiming there is often some ambiguity and so you look to the specification to try to determine [00:13:27] Speaker 00: what is within the reasonably certain boundaries. [00:13:29] Speaker 04: The question of Halliburton, which of course was overridden by statute, relates to disclosure of materials. [00:13:36] Speaker 04: There are plenty of materials disclosed in this patent. [00:13:41] Speaker 00: Well, there are, Your Honor. [00:13:41] Speaker 00: But the claim term that's at issue, the one that the district court construed, was material composition A effective for catalyzing NH3 and the corresponding. [00:13:51] Speaker 00: So we are talking about materials and what their identity is. [00:13:55] Speaker 00: And I think, Your Honor, if you look at the pharmaceutical cases in this area that were also cited heavily in the briefs, one thing you see is you're always told, I think in every case, what is it that is going to perform the function? [00:14:07] Speaker 00: Aspirin in an effective amount to grow animals, for example, not any substance that will be effective in growing animals. [00:14:14] Speaker 02: What's your response to the argument that your own patents use the same terminology? [00:14:18] Speaker 00: Your Honor, all I can say to that is every patent in terms of reasonably certain boundaries would have to, you'd look to the specification to see if the boundaries were provided. [00:14:27] Speaker 02: But it certainly does seem to indicate that that's the way one of skill and the art would do this. [00:14:31] Speaker 00: Well, Your Honor, you can draft a claim in this way, provided that you give the appropriate boundary. [00:14:39] Speaker 00: So one of the things, for example, here that we pointed the court to is this catalyst Q and this 6.3% effectiveness. [00:14:49] Speaker 00: The patent says that Catalyst Q will catalyze both SCR and AMOCs, but it uses the terminology specifically, and this is column 18, line 6, it uses the terminology specifically that it's an SCR-only catalyst. [00:15:05] Speaker 00: First, those words are words of function and not architecture. [00:15:10] Speaker 02: And second... So this is your argument about figure 6, ultimately? [00:15:15] Speaker 02: Yes, Your Honor, example 6. [00:15:18] Speaker 02: put a lot of reliance on it. [00:15:19] Speaker 02: If we disagree with your interpretation of Figure 6, what does that do to your argument? [00:15:24] Speaker 00: Well, I have a second argument, Your Honor. [00:15:27] Speaker 00: It's always a good thing for a lawyer. [00:15:28] Speaker 00: So if Your Honor's permission, I'll just finish the part about Example 6, and then I'll discuss the second part. [00:15:33] Speaker 00: So it does indicate 6.3 percent. [00:15:36] Speaker 00: And I noticed in the reply brief, BASF says, and this is the first time we've seen this argument, that's just shorthand, SCR-only catalyst for [00:15:46] Speaker 00: the architecture. [00:15:47] Speaker 02: When you say it's the first time you've seen this argument, I mean, there was testimony from their expert on it, wasn't it? [00:15:52] Speaker 00: There was, Your Honor, and his testimony was consistent with our position. [00:15:56] Speaker 00: So in the claim construction proceeding before the district court, in his reply declaration, he said, specifically in this paragraph 35 of his reply declaration, he said specifically, I do, Your Honor. [00:16:13] Speaker 00: It is pages 1324 and 1325, and it's paragraph 35. [00:16:19] Speaker 00: And he's specifically addressing the words from column 18, SCR-only catalyst. [00:16:24] Speaker 00: And he does not talk in terms of architecture. [00:16:27] Speaker 00: He talks in terms of catalyst function. [00:16:30] Speaker 00: And he says, well, I think that the patent used the word SCR-only catalyst there because that particular material, copper chappisite, doesn't work where the words are used, I believe. [00:16:42] Speaker 00: below 300 degrees, and so a person would not consider that to be optimal as an SCR catalyst, and that's why, as an AMOX catalyst, excuse me, and so that's why those words were used. [00:16:53] Speaker 00: Johnson Matthews' expert had the same view that SCR-only catalyst there is talking about the function. [00:16:58] Speaker 00: And so the person of skill, looking at this claim and trying to decide what goes downstream underneath and what is upstream on top, is going to look to that language and is going to take the conclusion there's [00:17:11] Speaker 00: some minimum level of function here, but I'm not told what it is. [00:17:15] Speaker 02: You don't really respond at all to appellants or at least maybe a little bit, but not in a full developed argument to the appellant's point that the real purpose of the claims and the purpose of the patent or what the patent's all about is the structure of the catalyst, not the makeup of the catalyst. [00:17:37] Speaker 02: Does that matter? [00:17:38] Speaker 00: It does, Your Honor. [00:17:39] Speaker 00: I certainly agree that [00:17:41] Speaker 00: what the inventors were focused on was the architecture. [00:17:45] Speaker 00: But, of course, one has to know what is A and what is B in order to put them in the right orientation to practice the patent claims or to avoid it. [00:17:53] Speaker 00: I thought, Your Honor, perhaps one example that might answer your question there is imagine catalyst Q, which we can see the data and the specification shows that it will function as the SCR catalyst and it will function as the AMOX catalyst, but the temperature, for example, can have an impact. [00:18:11] Speaker 00: So the first question, I have two that relate to that. [00:18:13] Speaker 00: The first question I'd have as the person of skill is, if I'm driving down the road and I hit a certain temperature and my SCR catalyst is now suddenly catalyzing AMOX, where does that put me in terms of whether I infringe this patent or not? [00:18:26] Speaker 00: And the second is, let's say I'm trying to avoid this entirely and I have an SCR catalyst on one substrate and the AMOX catalyst completely separate on a different substrate. [00:18:35] Speaker 00: That's my goal to avoid having a problem with BASF. [00:18:39] Speaker 00: As the specification makes clear, you often coat and dry and coat and dry these catalysts to get the right loading. [00:18:46] Speaker 00: So imagine catalyst Q on what I thought was my SCR-only substrate has a bit of a heavier coating on the downstream end. [00:18:55] Speaker 00: Is BASF going to say, well, that same catalyst Q is performing the functions of both A and B? [00:19:00] Speaker 00: I really wouldn't know. [00:19:01] Speaker 00: I would think maybe, well, it says A and B in the claim. [00:19:04] Speaker 00: Are they supposed to be different or not? [00:19:05] Speaker 00: I can't tell. [00:19:06] Speaker 00: And this specification doesn't provide the guidance [00:19:09] Speaker 00: that one would need to know. [00:19:11] Speaker 02: Well, your friends on the other side would respond that that's really you complaining about the breadth of the claim and not necessarily about how to define the scope of the claim. [00:19:23] Speaker 00: Your Honor, I certainly agree that breadth does not equal indefiniteness. [00:19:29] Speaker 00: And you could have a very broad claim drafted that can also be quite definite in the chemical arts. [00:19:34] Speaker 00: We often see Marcuse groups with billions of compounds, but I can draw every single one of them. [00:19:39] Speaker 00: I do think when you have a broad claim, though, perhaps you should be a little bit more sensitive to making sure that your boundaries are clear. [00:19:47] Speaker 00: And I don't think that that's happening here. [00:19:49] Speaker 00: Now, Your Honor asked me a question earlier about if you don't agree about the 6.3%, where does that leave me? [00:19:56] Speaker 00: And I do have an answer for that. [00:19:59] Speaker 00: And it actually is related to what Judge Taranto asked when we began the discussion with BASF. [00:20:05] Speaker 00: The issue is, is it can perform or does perform? [00:20:10] Speaker 00: I think even under the broadest reading of the construction that BASF is proposing, where any amount, no matter how small, is sufficient, that does mean, though, it has to actually work. [00:20:21] Speaker 00: And first, if you look at the specification, you can see you're not given one particular test to run. [00:20:26] Speaker 00: And I think we all agree that the temperature and the gas flow, for example, can affect whether you see performance or not. [00:20:34] Speaker 00: The HEC reference, which is in the specification, BASF has argued that it's intrinsic. [00:20:40] Speaker 00: If you look at that reference, it has data. [00:20:44] Speaker 00: It's figures 8 and 12, I believe, where you can see, for example, the zeolite does not work at all at 200 degrees Celsius to catalyze NOx, but it does work at 300. [00:20:56] Speaker 00: Their expert citing to those figures says there are operating ranges for these catalysts. [00:21:00] Speaker 00: And so even if you're talking about any amount of function, the person of skill should be told, what is the test that I should use to determine [00:21:10] Speaker 05: what will be satisfactory to be material composition A or material composition B. I don't remember in one of the points that the district court made and based on an argument of yours about one of the three things missing from these claims, identification of materials and one of them is measurement method. [00:21:34] Speaker 05: Does the concept of measurement method here include [00:21:38] Speaker 05: conditions under which the amount is or the functionality is measured or just techniques for measuring levels? [00:21:50] Speaker 00: I think the conditions matter, Your Honor, to determining whether it functions or not. [00:21:53] Speaker 05: Well, what was the argument that was made? [00:21:55] Speaker 05: Was part of the argument that you made about the absence of a measurement method [00:21:59] Speaker 05: an argument about lack of specification of the conditions under which the functionality was being noticed to be present or not? [00:22:10] Speaker 00: We were arguing, Your Honor, that you should have been told a particular temperature and gas flow rate that you could have used. [00:22:17] Speaker 00: In other words, if the specification had a single test 300 degrees Celsius and 200,000 units per hour, and this is how every single catalyst in the specification is tested, I would have a much harder argument. [00:22:29] Speaker 00: when we're talking about the claim at its broadest where any amount is sufficient. [00:22:36] Speaker 02: If the claim is drafted to say that any amount is sufficient, and that's in fact what your opponents argue, do you agree with Ms. [00:22:47] Speaker 02: Maynard's characterization that what you're trying to do is to say that we need to take this outside of its normal and ordinary meaning, which would be able to [00:22:57] Speaker 02: and would cover any catalyst known to a skilled artisan, and instead that you think we need to give it a specialized, narrower meaning. [00:23:05] Speaker 00: Your Honor, to that I would say this. [00:23:06] Speaker 00: I think when Ms. [00:23:08] Speaker 00: Mader makes her argument, she's very focused on the word effective by itself and says there is plain meaning in the cases, especially the pharmaceutical cases. [00:23:18] Speaker 00: It's our view that the term that Judge Robinson was construing was the entire limitation, material composition, any effective to catalyze. [00:23:27] Speaker 00: And there is no plain meaning in this art from that. [00:23:30] Speaker 00: And so I'm not asking this court to vary from the established plain meaning of effective in other cases. [00:23:37] Speaker 00: I am saying that we are construing this entire limitation. [00:23:40] Speaker 00: And there isn't a plain meaning to it from other cases or from the art that would put me in the position of having to show you a clear and unmistakable disavowal, for example. [00:23:50] Speaker 05: I took it, I guess, from the other side's argument is, and I [00:23:55] Speaker 05: I guess this seemed to me to be right when reading, in particular, your expert's testimony, declaration, that even your expert seemed to recognize that a person of skill in the art would recognize what a material effect of catalyzed was. [00:24:16] Speaker 05: But his problem was that when he read the patent, kind of doing a lawyer's job, not an expert's job, he was seeing a requirement for some [00:24:26] Speaker 05: threshold level of effectiveness, and that he couldn't figure out how to identify without more than was in the specification, but not, I think, what you just said, which is that the term doesn't have an ordinary meaning. [00:24:43] Speaker 00: Perhaps I'm being confusing, Your Honor. [00:24:45] Speaker 00: I mean, I do think that the equations are well known, and I do think one could, you know when something is causing the equation to happen, when Knox is actually being catalyzed. [00:24:56] Speaker 00: It is that when you're construing this entire claim and looking for the specification for guidance, there is indication of the specification. [00:25:04] Speaker 00: I mean, you are not supposed to understand plain meaning in light of the specification of the patent. [00:25:07] Speaker 00: There is this indication of a threshold, but you're not told what it is. [00:25:12] Speaker 00: Or as I say, even if you were to say no. [00:25:14] Speaker 02: That's exactly it. [00:25:15] Speaker 02: So the answer then to my earlier question was yes, that your expert acknowledges that there are lots of well-known catalysts that [00:25:26] Speaker 02: People still in the art would know. [00:25:28] Speaker 02: But you're saying that somehow this patent has defined the word effective to require something more, that he can't figure out what it is, as Judge Toronto pointed out. [00:25:40] Speaker 02: So when I asked you if you agreed that she said you're asking that you're suggesting that the patent has some kind of lexicography here, that your answer to that then would be yes, right? [00:25:54] Speaker 00: I really don't think that there's a lexicography, Your Honor. [00:25:56] Speaker 02: I think it's that... It's plain meaning as... He'll define lexicography in your view, obviously. [00:26:03] Speaker 00: I'm sorry, Your Honor? [00:26:04] Speaker 02: He'll define one in your view, but a lexicography none left. [00:26:09] Speaker 00: I mean, perhaps we're saying the same thing in different words, Your Honor. [00:26:12] Speaker 00: We have not argued this case in the sense that we must point to a clear and unmistakable disavowal or lexicography under the Thorner rubric. [00:26:21] Speaker 00: The way we saw this was [00:26:23] Speaker 00: You have a plain meaning that means understood within the context of the specification. [00:26:28] Speaker 00: So yes, the expert does understand what SCR catalysis is. [00:26:33] Speaker 00: But when he reads the specification, he sees the threshold. [00:26:38] Speaker 00: That's not explained. [00:26:40] Speaker 00: Or, as I was saying earlier, the other aspect could be even if you go as broad as possible and it's any, it has to at least work as opposed to not work. [00:26:48] Speaker 00: What test do I use when I see that some catalyst will work under certain conditions but do not [00:26:53] Speaker 00: under others, and that's undisputed. [00:26:55] Speaker 02: Do you agree that my concerns about looking down the road to how this would play out in front of a jury are not well founded? [00:27:04] Speaker 02: In other words, that my concern that we might be having testimony about what a skill in the art would understand, which is arguably bleeding into claim construction, are not realistic ones because there's not going to be any dispute about whether or not if the [00:27:22] Speaker 02: that one up skill in the art would understand that what you're doing falls within that balance. [00:27:27] Speaker 00: I think the court well knows that it's amazing what lawyers can do with words. [00:27:31] Speaker 00: Our concern about that tag on line as understood in the art of exhaust systems is that would become the refuge for all inconvenient facts when the experts were opining as to what, I just say infringement and validity here. [00:27:45] Speaker 00: And that's the reason why you saw our alternative construction was very similar to theirs, but we didn't want [00:27:51] Speaker 02: What's the tagline do, though? [00:27:54] Speaker 02: Why does that make a difference? [00:27:56] Speaker 02: Well, so, for example, if we were arguing that... If we talk about skill in the art, it's got to be in the art, right? [00:28:02] Speaker 00: Yes, it was really, Your Honor, if the district court says that extra tagline, when the party, you know, is faced with, for example, a prior art, if we were arguing, well, you have the same catalyst top and bottom, [00:28:15] Speaker 00: And this is, you know, catalyzing both SCR and AMOCs under this broad reading. [00:28:21] Speaker 00: If then the expert comes along and says, well, as the district court said, though, it's as understood by one in the skill in the art. [00:28:29] Speaker 00: And so you wouldn't think the same substance could possibly catalyze both. [00:28:33] Speaker 00: You'd do something different. [00:28:34] Speaker 00: That was our concern for that tagline. [00:28:37] Speaker 04: Thank you, counsel. [00:28:37] Speaker 04: Your time has expired. [00:28:39] Speaker 00: Thank you, Your Honor. [00:28:39] Speaker 04: This man here has a little rebuttal time. [00:28:43] Speaker 04: Two and a half minutes. [00:28:44] Speaker 02: OK, I think you need to answer that last point first. [00:28:47] Speaker 02: And that is, is this trying to slip something into the claim construction so as to narrow any scope of prior art that could be applicable for purposes of 102 or 103? [00:28:58] Speaker 01: We're just trying to interpret the claims in the appropriate art, Your Honor, which I think is what this court always does. [00:29:04] Speaker 01: The context of these claims is in the art of exhaust systems. [00:29:07] Speaker 01: That's the preamble of the claim and the technical field of claim. [00:29:11] Speaker 01: whether this court, as I was saying to Judge Taranto, whether the court actually were to tack that onto the claim construction or not, I think it's implicitly there. [00:29:18] Speaker 05: Is there something in the meaning of the claim in your understanding that requires somebody applying it to look at, to ask whether this is in fact going to act as a catalyst, one or the other under [00:29:38] Speaker 05: normal operating conditions in exhaust systems, or is there any reference to the conditions under which the exhaust system will operate? [00:29:47] Speaker 05: Because I gather there's at least some evidence, likely evidence, about the 200 versus 300 degrees Celsius difference that the same material may either not do it or do it. [00:29:59] Speaker 01: Well, so I think at a high level, to respond to your question, Judge Toronto, functional claiming is not a use limitation. [00:30:08] Speaker 01: you're claiming. [00:30:10] Speaker 01: So if the person of skill in the art considers the material to be an Amox catalyst or an SCR catalyst in the art of exhaust systems, then it is, as long as there are some conditions when it would function that way in the art. [00:30:22] Speaker 01: And as to the claim itself, to the extent you're asking about the claim language itself, claim one, for example, which is the prominent independent claim at appendix 29, line 40, a catalyst system for treating an exhaust gas stream containing NOx [00:30:37] Speaker 01: the system comprising, and then a material composition be effective to catalyze selective catalytic reduction of NOx. [00:30:45] Speaker 01: So I think it is in the context of this art that it should be construed. [00:30:51] Speaker 01: I do want to just quickly, before I run out of time, say this is not the first time that we made the argument. [00:30:56] Speaker 01: At appendix 1497 below, at the hearing below, my partner explained it exactly like we're explaining here, P and Q. [00:31:04] Speaker 01: At appendix 1497, line 15, my partner said, the other sample, Q, is not an embodiment of the invention. [00:31:11] Speaker 01: It only has one layer. [00:31:12] Speaker 01: It only has the SCR layer. [00:31:14] Speaker 01: That's why it's called an SCR-only catalyst. [00:31:17] Speaker 01: So though we didn't say it's a shorthand, it's the same argument. [00:31:20] Speaker 05: Let me just ask this one more time. [00:31:22] Speaker 05: Yes, Your Honor. [00:31:25] Speaker 05: Does this language, a system with ABC, [00:31:30] Speaker 05: one of which is a material composition effective to catalyze SCR of NOx require proof that it is in fact in the, that it is going to catalyze SCR in an accused exhaust system. [00:31:56] Speaker 04: Is your answer that there isn't a proof of utility [00:31:59] Speaker 01: Yes, it's not about the use, Your Honor. [00:32:01] Speaker 01: This language is how a person of skill in the art would describe an SCR catalyst in the context of an exhaust system. [00:32:09] Speaker 01: So if a person of skill in the art would consider a catalyst to be an SCR catalyst in the art of exhaust systems, then it's covered by this limitation. [00:32:18] Speaker 04: Which is the indefiniteness question, not inoperativeness. [00:32:25] Speaker 01: And a person of skill in the art [00:32:26] Speaker 01: would know what those things are and their expert doesn't dispute.