[00:00:22] Speaker 04:
Our third case this morning is number 16-1021 Hayward Industries Inc.

[00:00:28] Speaker 04:
versus Pentair Water Pool and Spa.

[00:00:31] Speaker 04:
Mr. Halper.

[00:00:39] Speaker 00:
May it please the court, I'm Steve Halper and I'm here on behalf of the appellant Hayward Industries.

[00:00:44] Speaker 00:
I'm here to talk about three things.

[00:00:46] Speaker 00:
Number one, master slave, more particularly why it's indigenzo.

[00:00:52] Speaker 00:
More particularly, I'm going to talk about paragraph 160, which is reproduced at page 11 of our reply brief.

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Number two, I'm going to talk about the meaning of optimized energy consumption.

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And I'm going to discuss with this court why, if this court does not find in favor of Hayward today on Duchenne or Ehlers, a remand is essential.

[00:01:17] Speaker 00:
I have about one sentence for you on each of a couple claims that were independently argued, like 17 and 33 and 44.

[00:01:27] Speaker 00:
So first, talking about master-slave.

[00:01:29] Speaker 00:
You're talking now about DiCenzo?

[00:01:32] Speaker 00:
DiCenzo, yes.

[00:01:35] Speaker 00:
Regarding the master-slave reference in DiCenzo.

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The only gram that the board found for

[00:01:47] Speaker 04:
non-anticipation was that Desenzo lacked master-slave, right?

[00:01:52] Speaker 04:
Correct.

[00:01:54] Speaker 00:
We submit it's there.

[00:01:57] Speaker 00:
Respectfully, APPX 1137 paragraph 164 says that control is to the operating point.

[00:02:05] Speaker 00:
There's nothing in Desenzo to suggest that when there's an operating point, pump's going to do anything differently than that.

[00:02:12] Speaker 00:
And when we look at paragraph 160,

[00:02:16] Speaker 00:
It's very, very clear that the host is going to provide lots of information, set points and things, but including the operating point to the local pump controller.

[00:02:28] Speaker 00:
And then we have this language, alternatively, one or more of the individual controllers could provide the operating point.

[00:02:36] Speaker 00:
You know, I'm aware of the evidentiary standards, substantial evidence.

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I'm aware that there's expert testimony.

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But the meaning of the word alternatively is really, really clear.

[00:02:47] Speaker 00:
And I think that expert testimony has a very big role in patent law.

[00:02:51] Speaker 00:
But I don't really think it can stretch the language of the explicit disclosure of a reference so far that the language has been suffered injury.

[00:03:00] Speaker 04:
Well, most of their expert testimony was about Figure 9.

[00:03:05] Speaker 04:
Well, you know.

[00:03:06] Speaker 04:
Wait, wait, wait.

[00:03:08] Speaker 04:
Figure 9 of DeCenzo, which seems to be a different embodiment than Figure 17, and in fact,

[00:03:14] Speaker 04:
Collins himself calls it a separate embodiment, and paragraph 160 calls it a separate embodiment.

[00:03:21] Speaker 00:
Well, I think that there are different teachings in the reference.

[00:03:26] Speaker 04:
And I think... That figure 9 and figure 17 are different teachings.

[00:03:30] Speaker 00:
This figure 9, this figure 17, figure 17 says it's another configuration.

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And it's understood, when you get to figure 17, that everything that has come before it as a reader is antecedent basis and sets up

[00:03:44] Speaker 00:
your understandings as a reader.

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There's a reference to host computers when you're talking about Figure 9.

[00:03:49] Speaker 02:
And what's interesting, Lee, is our briefing below... Are you saying that the, the, the figuration of Figure 9 is part of the construction of Figure 17?

[00:04:02] Speaker 00:
I'm saying that you have the teaching of Figure 9, there's a reference to a host computer, and when you get to Figure 17,

[00:04:09] Speaker 00:
It expands a little bit on how it would interact with the local controller.

[00:04:15] Speaker 04:
Well, it's different.

[00:04:16] Speaker 04:
17 is different, right?

[00:04:18] Speaker 04:
Because the optimizer is within the host computer in 17, but not in 9.

[00:04:25] Speaker 00:
In 17, the optimizer is shown in the drawing to be at the host.

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In figure 9, which is expanded out in figure 10,

[00:04:39] Speaker 00:
there's shown to be an optimization component that's in the local controller.

[00:04:46] Speaker 04:
Why do we care about Figure 9?

[00:04:48] Speaker 04:
The question is whether Figure 17 in connection with Paragraph 160 shows a master-slave relationship in a decenso.

[00:04:57] Speaker 00:
I think Figure 9 tells us a little bit about the structure of what we're talking about.

[00:05:00] Speaker 00:
It's got a local controller.

[00:05:04] Speaker 00:
It pumps water.

[00:05:06] Speaker 00:
It has sensors in the system and is receiving information.

[00:05:10] Speaker 00:
And Figure 17 is different in the sense that it's expanding and it's providing more information.

[00:05:18] Speaker 04:
Figure 17 is specifically saying... Okay, but let me tell you what your problem is.

[00:05:24] Speaker 04:
Collins, in testifying, sort of conflated Figure 9 and Figure 17.

[00:05:29] Speaker 04:
If they should be considered together, then maybe Mr. Collins had a point.

[00:05:33] Speaker 04:
If they're separate, then his testimony about Figure 9 doesn't have any bearing on Figure 17.

[00:05:39] Speaker 00:
Well, I think it's fair to consider that.

[00:05:42] Speaker 00:
And I think that in Figure 17, they specifically actually come out and say that the operating point can be provided from the host to the local controller and then alternatively... In Figure 17, that doesn't carry over to Figure 9 necessarily.

[00:06:03] Speaker 00:
Well, necessarily no.

[00:06:06] Speaker 00:
You know, it does not necessarily carry over.

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But if we look at figure 17 and we look at paragraph 160, we can see the connection there.

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And I think what happened here is there was some briefing below that was talking about 134 and 160.

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If you look at the board's opinion in this case, they refer to our reference to alternatively or in combination

[00:06:31] Speaker 00:
And they actually cite paragraph 134.

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They don't cite paragraph 160.

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In 134, the paragraph actually starts with alternatively or in combination.

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And there's a discussion in paragraph 134 about the host.

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But the argument we presented below and the argument that we're presenting here is the alternatively or in combination that's in the middle of the paragraph of 160, which is not the alternatively or in combination.

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that the board cited in their opinion.

[00:07:00] Speaker 00:
It's the same alternatively or in combination language.

[00:07:04] Speaker 00:
And as laid out in our papers, including but not limited to this diagram on page 11 of our reply brief, it can be very, very seen, clearly seen, operating point provided from host to local controller.

[00:07:18] Speaker 00:
Alternatively, the local controller can determine the operating point.

[00:07:23] Speaker 00:
The language they use is desired operating point.

[00:07:26] Speaker 00:
which is the same language, paragraph 164, which is what they say that's what the control is to.

[00:07:31] Speaker 01:
Is your point that 160 and the corresponding example are so clear that it shows a master-slave relationship that it would be impossible to conclude otherwise from decenso, and therefore the board's decision on that point lacks substantial evidence?

[00:07:50] Speaker 00:
Pretty much, yes.

[00:07:51] Speaker 01:
But I mean, you're getting into it.

[00:07:54] Speaker 01:
I mean, so you're asking me

[00:07:56] Speaker 01:
to read this on my own without any particularly relevant expert testimony, because a relevant expert testimony to me doesn't seem to go to this necessarily and make that determination almost a no-vote.

[00:08:11] Speaker 00:
I'm asking you to trust your judgment about what it means to say, alternatively, because it's very clearly here.

[00:08:20] Speaker 00:
The host can provide the operating point to the local controller.

[00:08:25] Speaker 00:
Well, I get that.

[00:08:26] Speaker 01:
I can read that.

[00:08:27] Speaker 01:
But does the fact that the host may provide operating points and it has efficiency optimization in a box for host computer mean that it has the specific master-slave configuration that's required to anticipate patent?

[00:08:46] Speaker 01:
I mean, you say it does.

[00:08:48] Speaker 01:
They say it doesn't.

[00:08:49] Speaker 01:
I don't know how I can connect that up, particularly on a substantial evidence review.

[00:08:55] Speaker 00:
Well, Your Honor, I think the sole basis for the board's reversal was that there was a degree of influence at the local controller.

[00:09:03] Speaker 00:
And I think that this is a teaching very clearly here of Master Slave.

[00:09:10] Speaker 00:
The presence of an additional teaching elsewhere in the reference does not minimize or eviscerate or otherwise take away the presence of the teaching here.

[00:09:20] Speaker 00:
The disclosure that the loci of control can be here or here or here

[00:09:25] Speaker 00:
does not eviscerate the fact a disclosure has been made that it can be here.

[00:09:30] Speaker 00:
I tell you two things.

[00:09:31] Speaker 00:
I no less told you the second thing by virtue of having told you the first thing, respectfully.

[00:09:37] Speaker 00:
If it's OK, I would talk about optimized energy consumption.

[00:09:43] Speaker 00:
We have three different claim constructions here.

[00:09:46] Speaker 00:
There's what I'm going to call flow control.

[00:09:48] Speaker 00:
There's the special definition of overlapping flows.

[00:09:51] Speaker 00:
And then there's the board's construction.

[00:09:53] Speaker 04:
The board didn't reach the question of energy optimization with respect to just the Sims, right?

[00:10:01] Speaker 00:
They found it to be present there.

[00:10:03] Speaker 00:
They just reversed on the grounds of the Master Slave.

[00:10:07] Speaker 00:
They found it to be present?

[00:10:07] Speaker 00:
I thought they just didn't discuss it at all.

[00:10:11] Speaker 00:
Your Honor, I would have to double check.

[00:10:13] Speaker 00:
I think that their issue with Tichenzo was solely the Master Slave issue.

[00:10:18] Speaker 04:
Yeah, but they didn't go on to say that this Shenzhou discloses energy optimization.

[00:10:26] Speaker 04:
I believe that you're correct.

[00:10:28] Speaker 00:
The board did.

[00:10:29] Speaker 00:
Thank you, your honor.

[00:10:30] Speaker 00:
Thank you.

[00:10:31] Speaker 00:
But with regards to optimized energy consumption, they did discuss it with respect to Ehlers.

[00:10:36] Speaker 04:
The Ehlers reference, which discloses a master... If we were to agree with you on master-slave, wouldn't we have to send it back to the board

[00:10:45] Speaker 04:
for determination about Dicenzo and energy optimization?

[00:10:50] Speaker 00:
No, because I think Dicenzo discloses all the claim constructions that the parties are advocating here.

[00:10:57] Speaker 00:
But has the board ruled on that?

[00:11:01] Speaker 00:
Has the board ruled on optimizing energy consumption?

[00:11:04] Speaker 02:
On the substantial optimizing energy consumption.

[00:11:07] Speaker 00:
I think that your colleague was saying that they relied solely on the master slave

[00:11:14] Speaker 00:
So they didn't reach the other question.

[00:11:16] Speaker 00:
On optimized energy consumption, they addressed it with respect to Ehlers.

[00:11:19] Speaker 00:
But not with respect to Desenzo?

[00:11:22] Speaker 00:
Not explicitly, Your Honor.

[00:11:25] Speaker 04:
So if the question is if we were to agree with you on master-slave, we would have to send it back to the Board on optimization, right?

[00:11:34] Speaker 00:
That's not unreasonable, Your Honor.

[00:11:38] Speaker 00:
With respect to optimized energy consumption, if I may,

[00:11:41] Speaker 00:
There's three definitions, flow control, this idea of having a set point or an operating point on the flow itself so that you're watching the flow rate of the pressure and you're instructing the intermediate variable of speed to achieve the desired impact on the flow.

[00:11:57] Speaker 00:
This construction is understood from the notice of allowance to the ex parte examiner.

[00:12:02] Speaker 00:
It was presented in the re-exam request.

[00:12:03] Speaker 00:
It was adopted in the first office action.

[00:12:06] Speaker 00:
In the second office action, which is also referred to as the first ACP,

[00:12:10] Speaker 00:
The examiner found a special definition in the specification of the 597 patent and withdrew the rejections that had been previously adopted to many, many, many, many rejection sets.

[00:12:24] Speaker 00:
Later on, I'm going to fast forward to the RAN.

[00:12:28] Speaker 00:
In the RAN, at page 160, the examiner says that he agrees with the claimed instruction presented by

[00:12:37] Speaker 00:
The patent owner, which is reduction of the energy over time relative to the ultimate pumping application or function, but nevertheless continues to have rejections withdrawn to lots and lots of prior art.

[00:12:50] Speaker 00:
A classic example of a very, very narrow definition used to eliminate references.

[00:12:56] Speaker 00:
And then later, a different, broader claim construction adopted without being reapplied.

[00:13:02] Speaker 00:
And the perfect example of this is in the RAND,

[00:13:04] Speaker 00:
APPX 15904, APPX 15905, just put one example where in the RAN itself, proposed rejection 80, the claims had previously been rejected over Jones in view of the Damphos manual, and the rejection is withdrawn.

[00:13:22] Speaker 00:
Neither Jones or the Damphos manual are seen to teach optimizing energy consumption as claims which is seen to have a special definition for optimized energy consumption.

[00:13:33] Speaker 00:
Then there's a reference to where in the patent the special definition is found, and it says, there's no teaching in Dan Foster Jones of overlapping the required flows from various functions to avoid unnecessary flow.

[00:13:43] Speaker 00:
This overlapping flows requirement is explicitly over and over and over again in the RAM and the second ACP used to toss all these references that had previously been adopted and formulated as part of rejections the examiner was being applied.

[00:14:00] Speaker 00:
And then when the claim construction

[00:14:03] Speaker 00:
change to this reduction over time relative to the ultimate function, that wasn't revisited.

[00:14:11] Speaker 00:
And what's interesting is there's a problem with this construction because what does the ultimate pumping or function actually mean?

[00:14:18] Speaker 00:
It can move depending on how it's being framed and how it's being abstracted out to greater levels of detail or bringing the zoom lens back.

[00:14:28] Speaker 00:
But the thing is that even if this court was to

[00:14:33] Speaker 00:
find that that's the proper construction.

[00:14:36] Speaker 00:
Our construction of flow control is both an example of that construction and a lowest common denominator.

[00:14:43] Speaker 00:
What do I mean by that?

[00:14:44] Speaker 00:
Number one, if you have flow control, if you have a reference that teaches what we're talking about, that's an example of a reduction of the energy over time relative to the ultimate function.

[00:14:55] Speaker 00:
If you had an old pump and you were going to

[00:14:59] Speaker 00:
just throttle it super fast all the time to make sure you got the flow rate or the pressure you needed, well, having flow control where you keep the speed as low as possible on a feedback loop is going to reduce your energy relative to that.

[00:15:12] Speaker 00:
And that's in all of these references.

[00:15:14] Speaker 00:
It's also the lowest common denominator of construction because if you don't know what the flow is, how can you get the flow that you want?

[00:15:22] Speaker 00:
You know, again, the flow of the water is what's important.

[00:15:25] Speaker 00:
Sending an instruction to the motor to run at a speed is but one intermediate step in the process.

[00:15:30] Speaker 00:
There could be a lot going on in the pool that changes that.

[00:15:34] Speaker 00:
Your Honor, so we ask for some guidance on the meaning of this term.

[00:15:40] Speaker 04:
I see I'm out of time.

[00:15:41] Speaker 04:
Mr. Hopper, your time has expired.

[00:15:43] Speaker 04:
We'll give you two minutes for a rebuttal.

[00:15:52] Speaker 04:
Thank you, Your Honor, and may it please the Court

[00:15:56] Speaker 04:
So I look at the board's decision.

[00:15:58] Speaker 04:
It doesn't really discuss paragraph 160 at all.

[00:16:02] Speaker 04:
It does cite to Collins expert testimony.

[00:16:06] Speaker 04:
Collins, at one point, cites paragraph 160, but he really doesn't discuss it.

[00:16:13] Speaker 04:
What is it that supports the board's decision here?

[00:16:18] Speaker 04:
Because we have to find it in Collins, don't we?

[00:16:22] Speaker 03:
It isn't, Your Honor.

[00:16:24] Speaker 03:
just stated it.

[00:16:25] Speaker 03:
If you look at the board citation to Hayward's expert... No, but answer my question.

[00:16:31] Speaker 04:
The only support is in Collins, right?

[00:16:34] Speaker 04:
Support for... The board's decision that Descenzo doesn't teach master slap.

[00:16:40] Speaker 03:
The board cited Amati, then Collins, and then came to its own conclusion.

[00:16:45] Speaker 03:
So the board discussed initially Descenzo, and I believe...

[00:16:49] Speaker 03:
the other side's expert.

[00:16:51] Speaker 04:
But in order to support their finding, we have to find it in Collins, right?

[00:16:56] Speaker 04:
Yes.

[00:16:57] Speaker 04:
Okay.

[00:16:57] Speaker 04:
So where is it in Collins?

[00:16:59] Speaker 04:
I find in Collins a lot of discussion of Figure 9, but Figure 9 is different.

[00:17:06] Speaker 04:
We have paragraph 160 of Jacenzo and Figure 17.

[00:17:10] Speaker 04:
Where does Collins say that those don't show master-slave?

[00:17:16] Speaker 03:
Well, Your Honor, first I would say you don't have to find it in Collins.

[00:17:19] Speaker 03:
The board looked at DeCenzo itself and did not find on the disclosure of DeCenzo itself.

[00:17:24] Speaker 03:
They didn't even discuss paragraph 160.

[00:17:26] Speaker 03:
Well, then they cited to Amati, which if you look at that site, he cites to 160.

[00:17:31] Speaker 03:
Let's talk about Collins.

[00:17:33] Speaker 04:
Show me where Collins says that considering paragraph 160, it doesn't show master slave in conjunction with figure 17.

[00:17:43] Speaker 03:
Your Honor, it's what the board cited.

[00:17:46] Speaker 04:
Now, I want you to show me a page.

[00:17:48] Speaker 04:
A page of what?

[00:17:49] Speaker 04:
I want you to show me the testimony, because I've read Collins, and I didn't find that at Collins.

[00:17:56] Speaker 03:
Appendix 15, 160, paragraph 36.

[00:17:59] Speaker 03:
That's where Dr. Collins sites.

[00:18:00] Speaker 03:
Wait, wait.

[00:18:01] Speaker 03:
Descenzo 160.

[00:18:02] Speaker 03:
Which volume is this in?

[00:18:04] Speaker 03:
Appendix 15, 160.

[00:18:07] Speaker 03:
What volume?

[00:18:09] Speaker 03:
The third, I believe.

[00:18:17] Speaker 01:
I'm sorry, say the page number again, 15... Appendix 15-160.

[00:18:20] Speaker 03:
Yeah, maybe volume five.

[00:18:23] Speaker 03:
Oh, it's five?

[00:18:24] Speaker 03:
Oh, four.

[00:18:25] Speaker 02:
Four, rather.

[00:18:29] Speaker 03:
Maybe.

[00:18:37] Speaker 03:
15-160.

[00:18:38] Speaker 03:
15-160, paragraph 36.

[00:19:03] Speaker 04:
So he says that it shows the host supplying the set points to the pumps or whatever.

[00:19:13] Speaker 04:
And then he goes on to say, the sensor does not disclose or receive from the host computer, even if optimized by the controller.

[00:19:21] Speaker 04:
Optimization 960 would lose independent control.

[00:19:25] Speaker 04:
In other words, he's saying it shows that the host provides the set points, but it doesn't say explicitly

[00:19:32] Speaker 04:
that there's a loss of independent control, right?

[00:19:35] Speaker 03:
Right.

[00:19:36] Speaker 03:
He's saying there's no disclosure in the senso of the local controller being a slave to the host.

[00:19:41] Speaker 03:
It always retains the senso.

[00:19:42] Speaker 04:
But how can that be consistent with the language of paragraph 160?

[00:19:46] Speaker 03:
Well, I think that's a good point, Your Honor.

[00:19:47] Speaker 03:
And if you look at paragraph 160, it doesn't say what Hayward thinks it says.

[00:19:51] Speaker 03:
And I'll refer to what Mr. Halpern was referring to in page 11 of Hayward's reply brief.

[00:19:57] Speaker 03:
If you look at the actual language of paragraph 160 and even how they annotated

[00:20:02] Speaker 03:
You'll just look at the language.

[00:20:04] Speaker 03:
The language says providing, providing desired, or providing information, not controlling, regarding Hayward's first teaching.

[00:20:24] Speaker 04:
What page of the required brief is that on?

[00:20:26] Speaker 03:
Page 11, Your Honor.

[00:20:34] Speaker 01:
So is your reading of this, I mean this, when your expert says something, I guess, that providing set point information is not the same thing as a master-slave relationship.

[00:20:48] Speaker 01:
God, I wish you guys would have used different language than master-slave when you just described these designs.

[00:20:54] Speaker 01:
But your reading of paragraph 160 is that it provides set point information, and then your expert says, but that doesn't mean the

[00:21:03] Speaker 01:
independent controllers can't still reject it.

[00:21:07] Speaker 03:
Right, it's providing information, it's providing desired operating points, but in every instance, in 160 and throughout the Senso, the local controller then takes that information and makes its own determination.

[00:21:19] Speaker 04:
That's exactly what it says.

[00:21:20] Speaker 04:
It says whereby an efficiency optimization component in the host computer may determine desired operating points.

[00:21:29] Speaker 04:
And it says, alternatively, one of the individual controllers may determine the operating points.

[00:21:35] Speaker 04:
Doesn't that suggest that in the first description that it's the host computer that determines the desired operating points?

[00:21:47] Speaker 03:
No, Your Honor.

[00:21:47] Speaker 03:
The language itself may determine desired operating points.

[00:21:51] Speaker 03:
And then the alternatively language is really saying that the local controller retains control.

[00:21:56] Speaker 03:
The local controller can listen to the

[00:21:59] Speaker 03:
The host computer.

[00:22:00] Speaker 04:
Take the line.

[00:22:01] Speaker 04:
It says, whereby the host computer may determine desired operating points.

[00:22:06] Speaker 04:
Doesn't that suggest that it is determining the desired operating points?

[00:22:10] Speaker 03:
Desired operating points that then, based on other information, the local controller can change and come to its own desired, its own operating point.

[00:22:18] Speaker 00:
Where does it say that?

[00:22:19] Speaker 03:
Later on and alternatively.

[00:22:21] Speaker 03:
That's the alternative language.

[00:22:22] Speaker 04:
But alternatively suggests that alternatively maybe the host computer doesn't determine the operating points.

[00:22:28] Speaker 03:
We read, and I believe the board read, 160, that the alternative language suggests... The board didn't discuss 160.

[00:22:34] Speaker 03:
Well, through the discussion of Collins, the citation of Collins, but we read the alternative language is actually saying that the local pump controller can take the information from the host computer, it can listen to it, it can make its own decision, it can, in combination... That's exactly what it says.

[00:22:51] Speaker 04:
It says, alternatively, instead of being told by the host computer what to do,

[00:22:55] Speaker 04:
it may make the determination itself.

[00:22:58] Speaker 03:
Nowhere in 160 does it say the host computer tells the local controller what to do.

[00:23:03] Speaker 03:
And the language is important here.

[00:23:04] Speaker 03:
It talks about host to peer, not master-slave.

[00:23:08] Speaker 03:
It talks about providing information, not commanding.

[00:23:11] Speaker 04:
Well, it says whereby an efficiency optimization command may determine.

[00:23:15] Speaker 04:
How does that not say it's determining the desired operating points?

[00:23:20] Speaker 03:
Desired operating points.

[00:23:22] Speaker 03:
That's not the actual end

[00:23:25] Speaker 03:
signal or operating point.

[00:23:29] Speaker 03:
And I mean, at worst here, you have two different interpretations of the disclosure.

[00:23:35] Speaker 03:
And under this court's case law and synopsis of the mentrographics and Qualtrics, that is when the board makes that determination.

[00:23:45] Speaker 03:
And in fact, the board in its decision credited Dr. Collins' testimony over Dr. Amati.

[00:23:51] Speaker 03:
So the board hit this issue head on, disagreed with Hayward, agreed with Pentair.

[00:23:56] Speaker 03:
And in that scenario, even when there are, is another maybe plausible reading that is still the epitome of a decision that should be upheld.

[00:24:03] Speaker 02:
I think it's hard to say that the board hit this issue head on when it really didn't discuss the very issue we've been debating.

[00:24:13] Speaker 03:
Well, this goes to, I think the record is there, Your Honor, but this goes to Hayward takes issue with the board's decision

[00:24:22] Speaker 03:
ignoring the fact that the board was merely responding to how these issues came to it.

[00:24:26] Speaker 03:
And you talked about Figure 9 and 17 earlier, and this confusion over whether they need to be together or not.

[00:24:31] Speaker 03:
And Hayward is saying the board somehow erred by making it mandatory that they're together.

[00:24:38] Speaker 03:
Well, why did the board address this issue the way it did with Figures 9 and 17 in the decision?

[00:24:44] Speaker 03:
It's because if you look at the record, that's exactly what Hayward argued.

[00:24:47] Speaker 03:
Look at their slides.

[00:24:48] Speaker 04:
Hayward argued Paragraph 160, right?

[00:24:50] Speaker 03:
It argued Figures 9 and 17.

[00:24:52] Speaker 03:
And it argued Paragraph 160.

[00:24:55] Speaker 03:
Where is, where did Hayward argue Paragraph 160?

[00:24:58] Speaker 03:
Besides the embedded citation to Dr. Imani that is talking... Your suggestion is they never argued Paragraph 160 to the Board?

[00:25:08] Speaker 03:
Not in the way they're arguing it now.

[00:25:09] Speaker 03:
And to the extent they did, they did so at the generic level that the Board responded to.

[00:25:14] Speaker 04:
Did they argue it or didn't they argue it?

[00:25:19] Speaker 03:
Not in the way it's in the appeal brief, Your Honor.

[00:25:22] Speaker 03:
I'm looking at their page 11, and I'm not seeing record citations.

[00:25:43] Speaker 03:
I would, unless Your Honors have more questions on paragraph 160, again, two alternative

[00:25:49] Speaker 03:
potential readings, the board decided one in favor or over the other, that's substantial evidence.

[00:25:56] Speaker 03:
But I would like to address in my time remaining the optimizing energy consumption arguments made by Hayward.

[00:26:04] Speaker 03:
In there, Your Honor, Hayward's main argument is that somehow the construction changed over time by the examiner, and that's just a non-issue.

[00:26:16] Speaker 03:
The board didn't reach that issue as to descends up, right?

[00:26:20] Speaker 03:
As to correct.

[00:26:21] Speaker 03:
Optimizing energy consumption, the board was silent as to descends up.

[00:26:26] Speaker 04:
So if we were to disagree with our master-slave, we'd have to send it back on the optimization.

[00:26:31] Speaker 04:
For factual finding, yeah.

[00:26:34] Speaker 03:
But the shifting construction argument is a non-issue.

[00:26:38] Speaker 03:
The bottom line is the examiner construed the term

[00:26:41] Speaker 03:
The board reviewed it and adopted that construction.

[00:26:44] Speaker 03:
That's all that's required.

[00:26:46] Speaker 03:
And maybe even more clearly, if you look at the record, Hayward made this shift in construction argument to the examiner.

[00:26:53] Speaker 03:
And the examiner at Appendix 15078 stated, the definition in this proceeding is not seen to contradict any earlier definition.

[00:27:02] Speaker 03:
And then the examiner went on in Appendix 15432

[00:27:06] Speaker 03:
to 15433 to say that it had addressed, it didn't change its mind about any of its prior findings, factual findings on the scope of the art based on this definition.

[00:27:19] Speaker 03:
So the shifting construction argument is just a non-issue.

[00:27:25] Speaker 03:
Heyward was then arguing some blanket rule

[00:27:31] Speaker 03:
that the language construed by the examiner under, I believe, a case that's cited in its reply, Geneva, because its functional language somehow has to mean, in this circumstance, any pumping system that optimizes energy consumption under any circumstance.

[00:27:46] Speaker 03:
And there is no such blanket rule in the law.

[00:27:48] Speaker 03:
This case is much more akin to star scientific that we cited in our brief.

[00:27:54] Speaker 03:
In Geneva, it was indefinite in this case.

[00:27:57] Speaker 03:
and the court was concerned that in that case it dealt with a pharmaceutical composition, that that pharmaceutical composition in one instance would infringe and the identical composition in another instance would not, and that's simply not the case here.

[00:28:10] Speaker 03:
We're not talking about identical pool systems, one would infringe, one would not.

[00:28:15] Speaker 03:
We're more like star scientific, we're there at the court, acknowledge that you can have functional construction that is in fact relative to some baseline.

[00:28:24] Speaker 03:
In that case,

[00:28:25] Speaker 03:
it was curing tobacco, the method for curing tobacco, and the claim language was defined as being relative to conventional methods for curing tobacco.

[00:28:36] Speaker 03:
Here, the optimized energy consumption can be relative to the ultimate pumping application or function.

[00:28:48] Speaker 03:
So the term is known with reasonable certainty to one of the skill in the art.

[00:28:57] Speaker 04:
there any other questions did you argue paragraph 160 to the board?

[00:29:15] Speaker 04:
yes we did where?

[00:29:18] Speaker 04:
everywhere everywhere doesn't do it you're sitting there you're hearing the questions you should figure out where you argued it

[00:29:27] Speaker 00:
Well, I wrote down the site to address his first point.

[00:29:31] Speaker 00:
May I do that while my colleague's looking up the site?

[00:29:38] Speaker 00:
Yes?

[00:29:39] Speaker 00:
Okay.

[00:29:41] Speaker 00:
He was discussing APPX 15160, the expert declaration, three pages earlier in paragraph 27.

[00:29:47] Speaker 00:
A master-slave relationship requires that the master has complete control over a variable in order to be the master with respect to that variable.

[00:29:57] Speaker 00:
Variable we're talking about here is the operating point.

[00:30:00] Speaker 00:
Paragraph 164 says this is the point at which the system is run.

[00:30:06] Speaker 00:
What could be more important than the operating point?

[00:30:09] Speaker 00:
This is the point that the system's going to be run.

[00:30:12] Speaker 00:
It's in paragraph 164 of DiCenzo.

[00:30:17] Speaker 00:
If we go back to paragraph 136, what does the expert actually say?

[00:30:21] Speaker 00:
However, DiCenzo doesn't disclose that if set points or desired operating points are received from the host,

[00:30:26] Speaker 00:
even if optimized at the remote location at 1706, the controller and its optimization component would lose independent control.

[00:30:37] Speaker 00:
It doesn't cross-reference to that definition of master-slave.

[00:30:43] Speaker 00:
The expert said it would lose independent control.

[00:30:46] Speaker 00:
But when we actually look at paragraph 27, it's complete control over one variable.

[00:30:52] Speaker 00:
That's the position the expert has taken.

[00:30:54] Speaker 00:
The operating point can be provided by the host to the local controller.

[00:30:59] Speaker 00:
Alternatively, the local controller can define the operating point.

[00:31:04] Speaker 00:
Don't need an expert.

[00:31:06] Speaker 00:
It's not a battle of the experts.

[00:31:08] Speaker 00:
Because experts, when a reference is black, experts can't fight over whether it says white.

[00:31:15] Speaker 00:
It's right there.

[00:31:18] Speaker 00:
Regarding this shifting sands.

[00:31:21] Speaker 00:
You're out of time.

[00:31:22] Speaker 00:
Do you have the site?

[00:31:27] Speaker 00:
speaking to the board itself?

[00:31:29] Speaker 04:
Yes.

[00:31:35] Speaker 00:
And in the worst case, I could get it to you before lunchtime tomorrow.

[00:31:39] Speaker 00:
But I'll look for it.

[00:31:40] Speaker 00:
I'm going to look for it right now.

[00:31:42] Speaker 04:
All right.

[00:31:42] Speaker 04:
Why don't you supply it in a supplemental letter tomorrow?

[00:31:51] Speaker 04:
Thank you, Your Honor.

[00:31:53] Speaker 04:
We thank both Councilors.

[00:31:54] Speaker 04:
The case is submitted.

[00:31:55] Speaker 04:
And the second case.