[00:00:00] Speaker 05:
same players is 161572, Garmin versus ITC.

[00:00:08] Speaker 05:
I mean, I don't mind if you want to sit there.

[00:00:10] Speaker 05:
It's going to confuse me because I have my mind set on who says what when.

[00:00:14] Speaker 05:
But no, you don't have to move.

[00:00:21] Speaker 05:
But we will start with Mr. Groombridge.

[00:00:40] Speaker 02:
Your Honor, I will speak first about the claim construction issue and then about the validity issue.

[00:00:51] Speaker 05:
Can I just ask you a kind of preliminary question?

[00:00:53] Speaker 05:
Let's assume for a moment that we were to agree with the Commission's claim construction, that there's a little confusion for me in these cases because there's some overlap.

[00:01:02] Speaker 05:
So with regard to the invalidity questions that are presented in this appeal,

[00:01:07] Speaker 05:
I guess there's no overlap with the earlier case, because they were dealing with certain claims on the 550.

[00:01:16] Speaker 05:
But here, clarify for me.

[00:01:18] Speaker 05:
The other case, we were clearly talking about an obviousness combination of Tucker and Betz.

[00:01:23] Speaker 05:
What are we talking about here with respect to invalidity?

[00:01:26] Speaker 05:
Are we talking about anticipation under Tucker, or are we also talking about an obviousness combination?

[00:01:31] Speaker 02:
I think we're talking about both, Your Honor.

[00:01:32] Speaker 02:
We're talking about some claims being anticipated by Tucker.

[00:01:38] Speaker 02:
and some claims are being obvious.

[00:01:44] Speaker 05:
And is it clear to you that you preserved the obviousness contentions with respect to bets on appeal to the Commission?

[00:01:51] Speaker 05:
Because I was having a little trouble putting together the record.

[00:01:55] Speaker 05:
Or is there an assertion by the other side?

[00:01:56] Speaker 05:
As you understand that, I guess we'll hear from them.

[00:01:58] Speaker 02:
Well, Your Honor, I think the Commission found that it was obvious for purposes of

[00:02:06] Speaker 02:
the claims of the 550 patent that they held to be invalid.

[00:02:09] Speaker 02:
They found that it was obvious to combine Tucker and Betz.

[00:02:14] Speaker 03:
Yeah, but we're not dealing with that issue in this case.

[00:02:17] Speaker 03:
What the commission found is that the processor limitation wasn't obvious.

[00:02:28] Speaker 03:
The question there is whether you have to rely on Pucker alone or whether you can rely on Betz as well for the process of limitation, right?

[00:02:36] Speaker 02:
I believe we, I mean, my view is we did preserve that, that in response... The reliance on Betz.

[00:02:42] Speaker 02:
The reliance on Betz.

[00:02:44] Speaker 02:
In other words, of saying that in response to the Commission's question of what would be, to the parties, of what would be the validity consequences

[00:02:58] Speaker 02:
of what became their construction.

[00:03:04] Speaker 05:
Okay, well I got you sidetracked, so why don't you proceed.

[00:03:07] Speaker 02:
Well, while we're on this, and maybe it makes sense to then talk about the liturgy, it's our view, first of all, that having found that Taka

[00:03:25] Speaker 02:
He does disclose a single linear downscale transducer element.

[00:03:32] Speaker 02:
There's no real stopping point.

[00:03:35] Speaker 02:
Tucker clearly also discloses a sonar signal processing means.

[00:03:44] Speaker 02:
The sonar signal processor in the sense that it takes the echoes that come back from the sonar

[00:03:54] Speaker 02:
processes that signal, which it refers to as the signal, and then outputs that to a printer to create visual images.

[00:04:06] Speaker 02:
And it says you could use a cathode ray tube if you wanted to.

[00:04:10] Speaker 02:
But figures 12 through 15 are visual images that are created by that apparatus.

[00:04:20] Speaker 02:
figures nine and ten are the circuit diagram for the sonar signal processor.

[00:04:28] Speaker 02:
And it talks about what's being processed as a signal there.

[00:04:33] Speaker 02:
Therefore, having got as far as that, we don't see any way in which you could stop and now say Tucker doesn't disclose some means of processing this.

[00:04:46] Speaker 02:
It's clearly a signal

[00:04:47] Speaker 02:
It's clearly being processed.

[00:04:49] Speaker 02:
And it's being processed so it can be fed to a device that will display it graphically.

[00:04:54] Speaker 04:
And that signal is a similar echo that it's processing.

[00:04:57] Speaker 02:
Yes.

[00:04:59] Speaker 02:
It's an electrical signal that is coming back from the transducer.

[00:05:05] Speaker 02:
Right.

[00:05:05] Speaker 02:
And so in our view, I don't know how to say it.

[00:05:13] Speaker 02:
More simply, in other words, it seems that it's

[00:05:17] Speaker 02:
That's just what Tucker says.

[00:05:19] Speaker 02:
And the argument that seems to be made is that it's not a quote downscanner sonar signal processor.

[00:05:28] Speaker 02:
And we view that as being wrong in several regards.

[00:05:33] Speaker 02:
First of all, the claim limitation isn't to downscan sonar signal processor.

[00:05:38] Speaker 02:
It's a sonar signal processor.

[00:05:42] Speaker 02:
Second of all, that's kind of a semantic argument in the sense of the

[00:05:46] Speaker 02:
the signal processor process is a signal, it's a downscan signal.

[00:05:50] Speaker 02:
If you feed it in from a downscan sonar transducer, and having found that TACA is exactly that, then it is by definition a downscan sonar signal processor.

[00:06:02] Speaker 02:
When the transducer of TACA is rotated downwards, it's now a transducer, and the signal is coming back as a downscan

[00:06:12] Speaker 05:
Is that in contrast to a phased array what your friend ended up talking about last time?

[00:06:19] Speaker 02:
In our view, TACA is a phased array and that leads back into what we see as the problem with the Commission's construction here.

[00:06:28] Speaker 05:
Isn't that problematic for you because assuming we agree with the Commission's construction that the phrase at issue excludes phased arrays.

[00:06:42] Speaker 05:
then doesn't that give you a problem in terms of your validity argument on Tucker?

[00:06:47] Speaker 02:
No, Your Honor, because that's precisely what's... Phased arrays can act simultaneously and in-phase.

[00:06:53] Speaker 02:
They can also act differently.

[00:06:55] Speaker 02:
But the Commission inserted a functional limitation here into the claim construction.

[00:07:04] Speaker 02:
Act simultaneously and in-phase.

[00:07:06] Speaker 02:
Phased arrays can absolutely do that.

[00:07:08] Speaker 02:
The fact that they can operate out of phase as well

[00:07:12] Speaker 02:
in no way takes tracks from their ability to meet that language.

[00:07:19] Speaker 02:
And so if I have, and if you look at Taka, for example, right, Taka has three channels that control transducer, and you can vary those, but in the 1-1-1 configuration where we're applying equal power to each of the three channels,

[00:07:38] Speaker 02:
it's acting simultaneously and in phase.

[00:07:46] Speaker 02:
To us, one of the things that's wrong with the commission construction is that even though its ostensible purpose is to distinguish phased arrays, it fails to do that.

[00:07:57] Speaker 02:
Because the phased array can perform the simple functionality of a single element, but it can also

[00:08:06] Speaker 02:
which is what that language acts simultaneously in a phase apparently intended to embrace, it can also perform more complicated functionality by putting a functional limitation in there and fail to distinguish the prior argument.

[00:08:18] Speaker 03:
I'm not understanding this somewhat convoluted argument about infringement.

[00:08:23] Speaker 03:
Yeah.

[00:08:23] Speaker 03:
I don't get it.

[00:08:26] Speaker 03:
Could you state it more simply?

[00:08:28] Speaker 02:
About claim construction, Your Honor?

[00:08:30] Speaker 03:
Yeah, claim construction.

[00:08:33] Speaker 02:
Yes, I'll try.

[00:08:37] Speaker 03:
I think everyone agrees that the... The commission says that phased arrays are not within its claim construction, right?

[00:08:47] Speaker 02:
I think the commission never actually says that.

[00:08:49] Speaker 02:
I think what the commission did was to try to come up with language that would capture the minimum set of things that have been distinguished.

[00:09:06] Speaker 02:
in the prosecution.

[00:09:08] Speaker 02:
But I think that the language that the commission came up with fails to do that.

[00:09:15] Speaker 03:
Isn't the claim construction issue whether it has to have the identical beam pattern?

[00:09:22] Speaker 03:
I mean, isn't that?

[00:09:23] Speaker 02:
I'm sorry.

[00:09:24] Speaker 03:
Isn't the claim construction depend on whether it requires an identical beam pattern?

[00:09:33] Speaker 02:
Your Honor, in our view, the beam pattern is the

[00:09:35] Speaker 02:
second step of the infringement analysis.

[00:09:38] Speaker 03:
The key language... Does it have to have the same beam pattern?

[00:09:47] Speaker 02:
To act together as if they were a single crystal or element means that it has to have a beam pattern.

[00:09:53] Speaker 02:
The same?

[00:09:55] Speaker 02:
Well, as close as it can... essentially the same.

[00:09:58] Speaker 02:
I think it can be identical.

[00:10:00] Speaker 02:
There's a slight difference because there are... because of the

[00:10:04] Speaker 02:
joints in the multiple element.

[00:10:07] Speaker 02:
But in our view, Your Honor, this language, when they added the single part of the claim language, they said it's well known in the transducer field that a plurality of such crystals can be arranged and can be electrically connected to circuitry such that the plurality of crystals act together as if they were a single crystal or element.

[00:10:26] Speaker 02:
What that was telling the skilled person was it's totally OK to make this single

[00:10:35] Speaker 02:
transducer elements out of multiple pieces, but you should wire them in such a way that they approximate or resemble a single crystal to the greatest degree possible.

[00:10:48] Speaker 02:
That's what that language says, and that's what everybody who ever looked at this before the Commission thought that was the appropriate construction of single, in single linear downscan transducer

[00:11:04] Speaker 02:
And we have this and in our view, there's a very serious public notice function question here because it appears that as far as we can tell the first time that the words act simultaneously and in phase or ever put down in writing somewhere is when the commission comes up with its construction, even though lots of people have looked at this record.

[00:11:26] Speaker 05:
Well, I'll tell you, to be frank, and this is anybody's fault, but I've hardly, this is a very convoluted claim construction argument presented.

[00:11:36] Speaker 05:
I mean, we've got like seven different alternative constructions that have been used along the way.

[00:11:42] Speaker 05:
And then when we get down to the entire construction, the entire phrase, it seems like we're really analyzing the word single versus others.

[00:11:52] Speaker 05:
So it's very difficult to follow.

[00:11:56] Speaker 05:
when we start talking about all these different constructions.

[00:12:00] Speaker 02:
I apologize for the confusion, but I think they all say operating as a single, substantially rectangular element.

[00:12:10] Speaker 02:
Right.

[00:12:12] Speaker 02:
And that would seem to be the common thread in all of those constructions.

[00:12:19] Speaker 02:
Certainly none of them, prior to the Commission's construction, said act simultaneously and in phase.

[00:12:25] Speaker 05:
OK, why don't we hear from the other side and reserve the rest of your time for rebuttal.

[00:12:41] Speaker 01:
May it please report.

[00:12:42] Speaker 01:
As Your Honor recognizes, the claimed construction dispute centers on how the crystals forming a single transducer must function or operate.

[00:12:51] Speaker 01:
Garmin insisted in its briefs that its construction is broad.

[00:12:54] Speaker 01:
But it is actually very narrow.

[00:12:56] Speaker 01:
As Mr. Groombridge admitted, its construction requires that the crystals operate in such a way so as to produce the same beam pattern as a monolithic bar.

[00:13:06] Speaker 01:
And there is absolutely no support in the intrinsic record for that requirement.

[00:13:11] Speaker 05:
What is more?

[00:13:11] Speaker 05:
But when you talk about Mr. Groombridge's claim construction, you talk about the ALJ's claim construction.

[00:13:16] Speaker 01:
Yes, which the ALJ adopted Garmin's construction.

[00:13:19] Speaker 01:
And the ALJ understood, just as the commission did,

[00:13:23] Speaker 01:
that Garmin's construction requires analysis of the beam pattern.

[00:13:27] Speaker 01:
Now, what is more, Garmin's construction presents a gotcha.

[00:13:30] Speaker 01:
Garmin's instructions essentially restricts the term to a monolithic bar, because as the record shows, the only thing that can operate like a monolithic bar and produce the same beam pattern as a monolithic bar is a monolithic bar.

[00:13:44] Speaker 01:
Now, the commission's construction correctly construed the term single linear downscan transducer element,

[00:13:51] Speaker 01:
consistently with the intrinsic record to encompass a single transducer formed of a plurality of crystals in which the plurality of crystals act together simultaneously and in phase as if they were a single crystal.

[00:14:06] Speaker 01:
That requirement corresponds to arguments made by the applicant during the prosecution of the 840 patent.

[00:14:12] Speaker 01:
And in particular, the applicant explained at APPX 4392 that the transducer may be formed of a plurality of crystals

[00:14:21] Speaker 01:
such that the plurality of crystals act together as if they were a single crystal or element.

[00:14:27] Speaker 01:
Also on that page, the app.

[00:14:29] Speaker 04:
So just to kind of simplify things, at least for me anyway, given all the different claims instructions that are involved here, I don't understand your argument why the Tucker reference does not disclose a single processor.

[00:14:45] Speaker 04:
I mean, there's a circuit for receiving a single, for processing a single, for plotting

[00:14:52] Speaker 04:
even for printing out, you can print out the signal.

[00:14:55] Speaker 04:
Why is that not a processor?

[00:15:00] Speaker 01:
It is not a processor because there's no express disclosures that correspond to the sonar signal processor limitation and the required functions as to those limitations.

[00:15:11] Speaker 03:
I don't understand that answer.

[00:15:13] Speaker 03:
I mean, the patent includes a very broad description of what's a processor.

[00:15:19] Speaker 03:
Basically, it's something that displays

[00:15:21] Speaker 03:
the results of the transducer information.

[00:15:25] Speaker 03:
What is the argument as to how Tucker doesn't disclose the processor so broadly defined?

[00:15:31] Speaker 01:
Tucker does not contain expressed disclosures of the required sonar signal.

[00:15:35] Speaker 03:
Why does it have to be expressed?

[00:15:36] Speaker 03:
Why do they have to use the word processor?

[00:15:38] Speaker 01:
It has to be expressed because that's the argument that Harmon presented.

[00:15:42] Speaker 01:
It never argued that Tucker inherently discloses the required sonar signal processing limitations.

[00:15:48] Speaker 03:
It discloses a display.

[00:15:49] Speaker 03:
It says it takes the information.

[00:15:52] Speaker 03:
gives detailed information about how it creates a display.

[00:15:56] Speaker 01:
Garmin did not make those arguments, and there's no evidence in the record from an expert showing that a person having ordinary skill in the art... Put that aside.

[00:16:06] Speaker 03:
Doesn't Tucker disclose a processor under the definition of the patent?

[00:16:11] Speaker 01:
It does not expressly disclose it.

[00:16:13] Speaker 01:
And the commission was not in a position to assume that Tucker disclosed the sonar signal processor limitation based on the words before it.

[00:16:20] Speaker 03:
I don't know what does expressly mean.

[00:16:21] Speaker 04:
It has to use the word processor?

[00:16:23] Speaker 01:
It does not have to use the same word.

[00:16:24] Speaker 04:
If there's no processor, then how's the data generated?

[00:16:31] Speaker 01:
Again, this argument sounds like an inherent disclosure argument.

[00:16:35] Speaker 01:
which Garmin never made.

[00:16:37] Speaker 01:
It never pointed to any expert testimony that would suggest that a person having ordinary skill in the art would read Tucker and understand Tucker to necessarily include the sonar signal processor.

[00:16:47] Speaker 04:
Would you agree with me that under Tucker embeds that we have a circumstance where there's output data that's generated and analyzed?

[00:16:58] Speaker 01:
I would agree with Your Honor that Tucker does output data.

[00:17:01] Speaker 04:
Yes.

[00:17:03] Speaker 04:
How is that processed then?

[00:17:05] Speaker 04:
How is that processed if there's no... How do you have the output data if there's no processor?

[00:17:14] Speaker 01:
These are good questions, Your Honor, but it's not answered by Tucker.

[00:17:18] Speaker 01:
And so as the Commission noted in its opinion, expert testimony would have been helpful for Garmin to establish by clear and convincing evidence that Tucker discloses the required sonar signal processor limitation.

[00:17:31] Speaker 01:
Now, Your Honor, Judge Proce had

[00:17:34] Speaker 01:
I had mentioned FETS earlier.

[00:17:36] Speaker 03:
I do want to make... But wait, wait, but look, on the face of it, Tucker says, here's the data, it processes the data, it creates a display.

[00:17:45] Speaker 03:
I mean, how could that not be a processor?

[00:17:48] Speaker 01:
Garman was unable to point to the specific parts of Tucker that discloses the required functions of the processor, and that's the evidence that the Commission considered.

[00:17:58] Speaker 01:
There's not a single

[00:18:00] Speaker 01:
Garmin submitted a 270-page expert witness statement on invalidity, and there is not a single statement there that mentions or shows that Tucker discloses the sonar signal process.

[00:18:09] Speaker 04:
How else can you generate output data if you don't have a processor?

[00:18:13] Speaker 01:
That's something that Garmin should have proved because that's what's required by the claims.

[00:18:18] Speaker 03:
On the face of it, it talks about processing the data.

[00:18:23] Speaker 01:
On the face of it, Tucker does not disclose receiving signals represented in sonar returns

[00:18:28] Speaker 01:
and processing the signals to generate sonar image data.

[00:18:33] Speaker 03:
I disagree with you, but there it is.

[00:18:37] Speaker 01:
And on the issue of bets, Garmin first argued to the ALJ that bets discloses a sonar signal process solar limitation.

[00:18:45] Speaker 01:
The ALJ disagreed and found that there was no such disclosure in bets.

[00:18:50] Speaker 01:
Now Garmin should have known then that bets was an issue, but did not challenge the ALJ's finding

[00:18:56] Speaker 01:
on a petition to review for the Commission.

[00:18:58] Speaker 01:
So any arguments as to bets are waived.

[00:19:01] Speaker 01:
Also, Garmin never argued to the Commission any obviousness arguments to show that the required sonar signal processor limitation was so satisfied by what was known by a person of ordinary skill in the art.

[00:19:14] Speaker 01:
Thus, substantial evidence supports the Commission's finding that the prior art does not disclose or teach the required sonar signal processor.

[00:19:24] Speaker 01:
If there are no further questions, we ask this Court to affirm the Commission's determination for the reasons stated here and in our brief.

[00:19:31] Speaker 01:
Thank you.

[00:19:32] Speaker 03:
Thank you.

[00:19:35] Speaker 01:
Mr. Bransley.

[00:19:47] Speaker 00:
May it please the Court.

[00:19:49] Speaker 00:
First I want to address the Tucker reference.

[00:19:52] Speaker 00:
It's an analog system from 1961.

[00:19:54] Speaker 00:
The strength of the electrical pulses that it receives causes a needle to move and it draws a very sketchy and unclear picture on the graph paper.

[00:20:05] Speaker 00:
There is no processor at all in Tucker.

[00:20:08] Speaker 00:
It is not receiving or processing data.

[00:20:10] Speaker 03:
The specification says that a processor can be hardware.

[00:20:14] Speaker 03:
An analog system is hardware, right?

[00:20:17] Speaker 00:
The processor implementation that's described in this specification of inadequate patents refers to a particular processor that processes... No, it has a very broad definition of processor.

[00:20:29] Speaker 03:
It says it can be hardware, doesn't it?

[00:20:31] Speaker 00:
It can be hardware or software implemented, but it has to be able to process linear downscan sonar data signals.

[00:20:39] Speaker 00:
And Tucker, as Mr. Brunbridge has acknowledged, isn't the right type of system.

[00:20:43] Speaker 00:
It's a phased array system.

[00:20:45] Speaker 00:
There was no commission finding that it was or was not.

[00:20:47] Speaker 00:
The parties agreed that it is.

[00:20:49] Speaker 00:
Tucker cannot possibly be part of these claims anymore.

[00:20:52] Speaker 00:
They cannot apply.

[00:20:54] Speaker 00:
Phased array systems were known in the prior art.

[00:20:56] Speaker 00:
They were clearly distinguished between during prosecution, repeated again in the IPR.

[00:21:02] Speaker 00:
Tucker is irrelevant for that reason.

[00:21:04] Speaker 00:
It's irrelevant because it lacks a sonar signal processor, or at least we have a failure of proof, as the commission found, that's supported by substantial evidence and must be affirmed.

[00:21:15] Speaker 00:
Also, as my colleague mentioned, Tucker explains to the mathematics that's in Tucker that the maximum angle that it could be depressed from the whole horizon is 30 degrees.

[00:21:25] Speaker 03:
But that's not the processor argument.

[00:21:27] Speaker 03:
That's the argument that we had in the last case.

[00:21:30] Speaker 00:
Correct.

[00:21:30] Speaker 00:
But it shows all the reasons why the commission's findings that these claims are valid is supported by substantial evidence.

[00:21:38] Speaker 00:
In addition to the processor aspect,

[00:21:41] Speaker 00:
Tucker's not relevant because it's a phased array.

[00:21:43] Speaker 00:
The math makes it impossible for it to do what's claimed in the Navico claims.

[00:21:48] Speaker 00:
On top of that, the combination with Betz fares no better.

[00:21:52] Speaker 00:
Betz admittedly lacks any linear downscan transducer element.

[00:21:57] Speaker 00:
It's a side scan system.

[00:21:58] Speaker 00:
Its processor doesn't process linear downscan sonar signals.

[00:22:03] Speaker 00:
There was no claim that it did.

[00:22:05] Speaker 00:
The ALJ ruled against Garmin on that point.

[00:22:10] Speaker 00:
and said there's no processor.

[00:22:11] Speaker 00:
Garmin did not appeal that finding to the Commission.

[00:22:15] Speaker 00:
The Commission said Garmin waived it.

[00:22:18] Speaker 00:
The Commission also found that there was no proof that Betz has a processor.

[00:22:22] Speaker 00:
Therefore, the combination of Betz and Tucker fare no better.

[00:22:27] Speaker 00:
On the issue, and I also want to mention the dependent claims, there is no allegation by Garmin, same as they did to the Commission.

[00:22:35] Speaker 00:
They never separately addressed the dependent claims.

[00:22:38] Speaker 00:
As we all know, when you're looking at invalidity, all the limitations count.

[00:22:42] Speaker 00:
And when you get to the dependent claims, there's not even an argument that those are met.

[00:22:46] Speaker 00:
At least the dependent claims ought to be affirmed, and clearly all of them should be affirmed because there's substantial evidence.

[00:22:53] Speaker 00:
On the issue of the claim construction, Mr. Groombridge said that he didn't believe the commission ever actually addressed whether phased arrays are excluded.

[00:23:03] Speaker 00:
And that's incorrect.

[00:23:04] Speaker 00:
They squarely addressed it, and they said so.

[00:23:07] Speaker 00:
The commission said at APPX 14 to 15 that the claims, quote, cover any multi-crystal downscan transducer except a multi-crystal phased array type transducer.

[00:23:19] Speaker 00:
Close quote.

[00:23:20] Speaker 00:
The construction is understood in that context.

[00:23:23] Speaker 00:
Phased arrays are excluded.

[00:23:25] Speaker 00:
And that's no surprise.

[00:23:26] Speaker 00:
The parties agreed all along that phased arrays were excluded.

[00:23:30] Speaker 00:
And to the point made earlier, that necessarily excludes Tucker.

[00:23:36] Speaker 00:
If it's a phased array system, there were phased array systems in the prior art.

[00:23:39] Speaker 00:
They're shown in the figures of the patent and labeled prior art.

[00:23:42] Speaker 00:
Those phased array systems look straight down.

[00:23:45] Speaker 00:
That's different than the Navico patents.

[00:23:48] Speaker 00:
The Navico patent is much simpler.

[00:23:50] Speaker 00:
It doesn't have the complex electronics and phasing of a system like Tucker.

[00:23:56] Speaker 00:
During prosecution, the patentee distinguished the Hamada reference, which was one of these multi-element complex phased array systems.

[00:24:06] Speaker 00:
And they said, we're not that.

[00:24:08] Speaker 00:
The transducer element can be made from a single piece or it can be made from multiple pieces.

[00:24:13] Speaker 00:
If it's from multiple pieces, they act as a combined unit.

[00:24:17] Speaker 00:
They act simultaneously and in phase.

[00:24:19] Speaker 00:
They're not a phased array.

[00:24:21] Speaker 00:
There's a single channel going from that transducer element up to the head unit.

[00:24:26] Speaker 00:
There's not individually addressed multiple elements that are all emitting sonar energy and phasing and timing and adjusting.

[00:24:34] Speaker 00:
the sort of way the Hamada reference was, the way Tucker does.

[00:24:38] Speaker 00:
Those are different systems.

[00:24:39] Speaker 00:
The commission got the claim construction correct here, and it ought to be affirmed.

[00:24:51] Speaker 00:
Will mentioned Garmin in its reply brief raises for the first time the notion of the patentee acting as its own lexicographer.

[00:25:00] Speaker 00:
That's the first time we've heard that argument.

[00:25:02] Speaker 00:
But it seems to me to be the same argument under a different heading.

[00:25:06] Speaker 00:
They're shying away from what was disavowed during the prosecution history and the IPR and trying to give it a new label of acting as your own lexicographer.

[00:25:17] Speaker 00:
Navico did not act as a lexicographer.

[00:25:20] Speaker 00:
And they certainly didn't act as a lexicographer to say that when you have a transducer element formed from multiple pieces, it must emit the same, or as he now says, sort of the same or kind of the same,

[00:25:32] Speaker 00:
beam pattern as emitted by a monolithic bar.

[00:25:35] Speaker 00:
The prosecution history repeated in the IPR solely made the distinction of an element formed from multiple pieces as contrasted with a multi-element array, a multi-element phased array.

[00:25:49] Speaker 00:
In our situation, we have the former.

[00:25:51] Speaker 00:
The element can be formed from a single crystal or multiple crystals.

[00:25:55] Speaker 00:
It's not a phased array.

[00:25:56] Speaker 00:
That was the distinction.

[00:25:58] Speaker 00:
The commission's construction correctly captures these concepts and should be affirmed.

[00:26:03] Speaker 00:
Unless there are questions.

[00:26:04] Speaker 00:
Thank you.

[00:26:04] Speaker 00:
Thank you.

[00:26:17] Speaker 02:
Chief Judge, I was able to just check.

[00:26:21] Speaker 02:
And I think I can confirm that the obviousness argument of Tucker and Betz was preserved.

[00:26:31] Speaker 02:
The record at Appendix 12414, that's the beginning page for a section titled All Asserted Claims of the 840 and 550 patterns are rendered obvious by the combination of Betts and Tucker.

[00:26:45] Speaker 02:
What do you have that, Counselor?

[00:26:47] Speaker 02:
What's the citation?

[00:26:48] Speaker 02:
The citation is 12414, Your Honor.

[00:26:52] Speaker 02:
And this is a document that was Garman's response to the questions posed by the Commission.

[00:27:00] Speaker 05:
Yeah, but it's quite clear.

[00:27:01] Speaker 05:
I mean, the ALJ said that there's no processor.

[00:27:07] Speaker 05:
And what did you appeal?

[00:27:11] Speaker 05:
Your friend, I thought, was making the argument that you didn't appeal one of the findings of the ALJ.

[00:27:16] Speaker 05:
Betz doesn't disclose a processor.

[00:27:20] Speaker 05:
Do you know what I'm referring to?

[00:27:23] Speaker 02:
I'm not sure.

[00:27:24] Speaker 02:
Well, I don't want to take your advice.

[00:27:28] Speaker 02:
we've reached certainly i think uh... when asked by the commission what would be the effect on validity of our proposed construction we said all of us at times of the eight forty five fifty pounds would be valid for all business over the combination of bets and talk and and so i i think that we certainly preserved that argument uh... the art

[00:27:56] Speaker 02:
operating under a different claim construction.

[00:27:58] Speaker 05:
Can you just answer me one question that's been going back and forth and I'm sure it's just me and I don't understand it.

[00:28:05] Speaker 05:
If we adopt, if we affirm the commission's claim construction which excludes phased arrays and you say that Tucker is all about phased arrays, how can there be an invalidity finding of anticipation or obviousness or whatever?

[00:28:20] Speaker 02:
Because at least in its

[00:28:23] Speaker 02:
uh... so-called one one one configuration tucker acts simultaneously in phase and i don't think anybody disputes that so talk it does act simultaneously in a phase absolutely one hundred percent and uh... all we can have a debate about whether it is or isn't a phased array it certainly uh... has the kind of wiring that goes into a phased array but it acts simultaneously in phase and i don't believe there's any dispute

[00:28:53] Speaker 02:
And so under the commission's construction, TACA meets that claim limitation, single linear downscan transducer element.

[00:29:01] Speaker 02:
Well, and the commission found that, right?

[00:29:03] Speaker 02:
And the commission found that, Your Honor, exactly.

[00:29:06] Speaker 02:
And just with respect to our proposed construction, Ms.

[00:29:10] Speaker 02:
Noyala said it's a gotcha.

[00:29:11] Speaker 02:
I respectfully disagree with that, that we're not saying that the only thing that can be covered is a monolithic list,

[00:29:22] Speaker 02:
what we're saying is that the skilled person reading that language in the prosecution history would say, I can take multiple components, multiple elements.

[00:29:32] Speaker 02:
I just need to wire them together.

[00:29:34] Speaker 02:
And in fact, you would wire them in parallel to make something that behaves essentially as a single crystal.

[00:29:41] Speaker 02:
And that's what you would do there.

[00:29:43] Speaker 02:
That's what that's teaching.

[00:29:45] Speaker 02:
So with that,

[00:29:47] Speaker 02:
I think I'm finished.