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for argument is 17-1149, Enrique Thomas.

[00:00:33] Speaker 01:
Mr. Thomas, whenever you're ready.

[00:00:37] Speaker 02:
May it please the court.

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The invention at issue is

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all about thermal and power management of computers.

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This is an appeal from the Patent Office and one complaint we have concerns a few dependent claims 7 and 19.

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These claims deal with controlling the speed of performance of a microprocessor and they do so with some specific claim limitations and those are namely the retrieval of clock control data

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dependent upon the operational mode.

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Then once you have that, you compare that with a temperature measurement, which we'll talk about later.

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And from that comparison, you're going to generate the clock speed data.

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And then that clock speed data is delivered to the microprocessor and control board.

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So where's the error in what the board did?

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Where's the error?

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And what's the board?

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The error is that the board's consideration in their decision, they have but a single sentence.

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And that single sentence makes reference to one reference, Akita.

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And the board basically stated that it agreed with the examiner, whose consideration of these claims is also extremely weak and limited.

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And basically, the agreement will

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that the board and examiner had between themselves was that this Akita reference teaches high and low clock speeds, which are based upon the temperature of the microprocessor.

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And from that, they alleged that such high and low clock speeds correspond to a normal mode and a power saving mode.

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So basically they used Akita as disclosing the use of temperature to determine the clock speed.

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So there is really no consideration of what I recited a minute ago about retrieval of a clock control data based upon a mode.

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To the extent they made any analysis, they reached some sort of conclusion that there was modes.

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go to the next level, which the claim requires, that you have to retrieve clock control data dependent upon the mode.

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And then you make the comparison using that retrieved data with the temperature.

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So it's our opinion that there's no evidence as to retrieval of the clock control data based upon a mode.

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And then there can be no comparing

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against that clock control data.

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And the reference itself, Akita, what it teaches is that they compare a temperature measurement with a predetermined set threshold.

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And that's illustrated

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in the reference and because it has a set temperature, it can't be dependent upon a mode.

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It's fixed and the point of these claims set in 19 is it's not fixed.

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It's dependent upon the mode and that's why we retrieved the clock control data based upon the mode.

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So from that analysis, it's our opinion that the reason the basis or explanation by the agency is inadequate and requires reversal.

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And this is focused on the limitation in claim seven for retrieving clock control data, right?

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Primarily that, and then the subsequent operation of comparing that against temperature.

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So moving to claim four, the sole independent claim, a disputed limitation concerns the temperature measurement.

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And in our claims, we're talking about obtaining this temperature measurement from a temperature sensor that is internal to a microprocessor.

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And then we also recite that that same temperature measurement

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is made available external to the microprocessor so that we can make these comparisons like the one we just talked about.

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In claim four, the comparison has to do with fan control as opposed to clock control in claim seven.

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But the temperature measured in both cases is the same.

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So that's the gist of the limitation is

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We have a sensor inside the chip, get the actual temperature measurement, and then we make that available outside the chip.

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None of the references do that.

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The primary reference the office PTO director relies on is PIFN.

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And in that reference, it does have an internal temperature sensor.

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But that temperature measurement that PIPIN offers is not available outside the microprocessor, intentionally so.

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The parties basically agree that PIPIN does have temperature measurement.

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And it's from the voltage band gap circuit 110 that you can see in figure one of PIPIN.

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That's an internal temperature sensor.

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But PIPIN processes that temperature measure inside so that it can generate what's called the interrupt signal.

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And then it uses this interrupt signal inside to interrupt processing operations.

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So you'll note that the interrupt signal is sent to what they refer to as processor unit 705.

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in a micro program 740.

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So conventionally an interrupt is to alter the processing going on.

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So that's what it's doing.

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But figure nine in PIPIN does show that this interrupt signal is made available external to the chip.

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So remember our temperature measurement has to go external to the chip.

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So what PIPIN has going external is this thing called

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interrupt signal.

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So the office is trying to distort PIPIN so that you believe then that this interrupt signal is also a temperature measurement.

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And the board agreed with the examiner's statement that

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It's not quite clear if they actually called it a temperature measurement, but they said they considered it as a temperature measurement because it suggested that the signal is indicative of a temperature.

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The interrupt signal is just a digital zero or one.

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There's no measurement ability with that.

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So as I mentioned previously... But it still indicates whether the temperature has exceeded a certain threshold, right?

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It indicates that at some point in time the temperature sensor had a temperature that was in elevated... I think they used 100 degrees or something in their example, right?

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At some point it tripped and the signal went.

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But that's it.

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The signal that went is what we're talking about.

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That's the only thing that's available outside.

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So outside, you know that it's got a signal.

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But you don't know what these temperatures go to 100 or 150 in less than a second.

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They could go from 100 to 150.

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So you don't really know what the temperature is outside.

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And beyond that, outside, you just have the little signal that it triggered.

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How are you gonna compare that to clock control data or fan control data?

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You can't.

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So I guess the specific question is can BRI be used to distort the teachings of PIPIN such that that interrupt signal is considered a temperature measurement.

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We think that that is an extreme position, given that Pippin does, in both parties agree, have a temperature measurement.

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And it's not the interrupt signal.

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It's the output of the voltage band gap circuit, 110.

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The only reason they're looking to find another temperature measurement is because the reference doesn't really teach it.

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And the interrupt signal is

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can't be used to make the comparisons.

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And, for example, the temperature measurement we're using externally, with respect to claim four, is to compare with mode-dependent fan control data.

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They also don't have this mode-dependent fan control data.

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Similarly, like in Flame 7, they didn't have the mode-dependent clock control data.

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They also have a backup position with the reference Akita again, and it's not clear how they're combining these two references or what the motivation is to do so, but in any case,

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The Akita reference is not an internal temperature sensor.

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It's external to the microprocessor.

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It does make a comparison external to the microprocessor, but its comparison is with a fixed threshold temperature.

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And you can see that on the front page of Akita.

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It's a little signal TS.

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That is, again, a fixed value.

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It cannot be mode dependent.

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There's no ability to change it.

[00:12:57] Speaker 01:
You're into your rebuttal time.

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OK, I'm going to hold here.

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Thank you.

[00:13:14] Speaker 01:
Good morning.

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May I please the court?

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I only have two points to make on the fact that Pippin's temperature sensor is programmable.

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That in itself defines the fact that it is measuring a specific temperature at a specific threshold.

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And so there's no doubt that the sensor of Pippin is making a temperature measurement within the processor.

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And the fact that that temperature measurement is then further processed to generate an interrupt signal, which is then received by circuitry external to the microprocessor, does not mean that that interrupt signal no longer represents a temperature measurement.

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And that has always been the office's position.

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And Mr. Thomas hasn't provided any reason to doubt why temperature measurement should be understood in any other way.

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The only other argument that Mr. Thomas raised that I would like to address is with regards to claims 7 and 19, specifically the control, clock control data.

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And that argument from the board's perspective is the same argument with regards to the fan control data, which is simply met by these various predetermined, pre-programmed temperature thresholds that are part of the sensor.

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And once the

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that temperature threshold is reached, that is your fan control data.

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That is your clock control data, which is then used, depending on the mode of the system, to decide how to control the fan or how to control the clock speed.

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It's as simple as that.

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There's nothing here that distinguishes Mr. Thomas's claims from Pippen's claims.

[00:15:04] Speaker 03:
I mean, I understood the appellant to be arguing with your order to claim seven in the absence of retrieving clock control data.

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Is that what you understood him to be arguing on, claim seven?

[00:15:17] Speaker 00:
I believe that is what he is arguing, this retrieval of clock control data.

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Is it shown in the priority?

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No, I believe it is.

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It is shown in the priority.

[00:15:27] Speaker 03:
Does this also depend on the external, internal debate?

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I don't believe so.

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I don't think so.

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No.

[00:15:33] Speaker 03:
So did you understand this argument that he's making on Claim 7 was, I do not certainly understood that from his briefs.

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I thought the challenge on Claim 7 was essentially the internal external.

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That's all I saw in the brief as well.

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Did you understand his argument this morning to be a new argument?

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I just need a little help because it didn't, his argument with regard to claim seven based on the absence of retrieving clock control data and the prior, maybe I'm just too, I'm not smart enough to figure this out, but that sounded new to me.

[00:16:10] Speaker 00:
The majority of Mr. Thomas's brief has focused on this internal external temperature measurement and he never, what's interesting is that with regards to claim four, he's never argued about

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fan control data, and today he's made this argument about clock control data, but the board's analysis as to both is the same.

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Those are just two ways of controlling heat dissipation in the system, and they're both controlled in similar ways.

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There are no further questions.

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Thank you.

[00:16:57] Speaker 02:
One point I'd like to make is that our comparisons are all made external through the microprocessor, and that's clear from the claims.

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Fan control data, which I did reference with respect to claim four, was not the linchpin argument in our brief.

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It is casually mentioned, but it is actually

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more presented in the director's brief.

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I want to touch on the motivation to combine.

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The board and the examiner justified the combination with the general allegation of cost reduction.

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And it's troubling if you were to accept such a rationale.

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Do you think that's not a legitimate theory for combination?

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Many times the examiner will just fabricate something.

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No, I don't think it's legitimate.

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No, in the marketplace, in the context of this case.

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Ordinary artisan is sitting down at the workbench.

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No, no, no.

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And all of the relevant prior art in front of it would be artisan.

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Wouldn't the motivation to achieve efficiencies, say, cost, or would it not be something that might be motivating ordinary artisan?

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Is there a tempting to solve a problem?

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No.

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The examiner, pardon me.

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The director believes that because PIPIN has an internal temperature sensor and then it manipulates it into an interrupt inside, they want to sort of break that device apart and say that the Akita reference would motivate breaking that apart and pulling one part and putting it on the outside so that they have the needed

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temperature measurement outside.

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So they speculate that, oh, OK, I pull off that comparator circuit, which just is implemented by a handful of transistors.

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I pull that out and put it outside, and that will save money.

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So in the event that I have to replace the microprocessor,

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They'll pay less.

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But a microprocessor has an excess of a million transistors, and saving four or five for this reason makes no sense.

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It's hard to conceive how that one scale in the art would be motivated to break apart something, to save five transistors, to somehow

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save on a replacement cost.

[00:20:19] Speaker 03:
Did you present evidence to that effect?

[00:20:23] Speaker 02:
We presented a basic argument in the patent office.

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You tend not to have an expert report or some other outside evidence.

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As a general proposition, would you agree that saving money is a motivating factor for an ordinary artisan?

[00:20:47] Speaker 03:
Generally, I would say it's- What I'm hearing you say is that even if that is an acceptable motivation for purposes of argument, it didn't work in this case because you didn't save enough money.

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I think the ordinary artisan is a technical thinking person, and they're not really worried about

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trying to get the best product, they're not trying to figure out how much it costs.

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That's something that happens after an innovation and trying to make it market ready.

[00:21:19] Speaker 01:
Your time has expired.

[00:21:23] Speaker 01:
Thank you very much.