[00:00:00] Speaker 00:
The next case for argument is 16-2-5, Group 5, Lufthansa versus Aztronix.

[00:01:06] Speaker 00:
Good to go.

[00:01:07] Speaker 00:
Good morning.

[00:01:08] Speaker 04:
May it please the court.

[00:01:09] Speaker 04:
The district court's ruling below includes two critical errors.

[00:01:13] Speaker 04:
First, an erroneous claim construction that is contradicted by the specification, the prosecution history, and the claim language itself.

[00:01:21] Speaker 04:
And secondly, a compounded error of finding indefiniteness based on a concept of a margin of error or tolerance that is nowhere in the intrinsic record.

[00:01:31] Speaker 04:
Turning first to the claim construction issue, the district court said,

[00:01:36] Speaker 04:
that a zero-time difference in the timing element of the claim was disclaimed based on the prosecution history.

[00:01:46] Speaker 04:
This court's test for a disclaimer is that it has to be intentional, clear, and unmistakable.

[00:01:51] Speaker 00:
Well, it seems to me you had the simultaneous language in there.

[00:01:56] Speaker 00:
You were facing a rejection because of the crane reference.

[00:02:00] Speaker 00:
And then you took it out.

[00:02:01] Speaker 00:
And you took out the word simultaneous and exchanged it for subsequent.

[00:02:05] Speaker 00:
And that seems very clearly to have been the basis upon which you ultimately allowed, right?

[00:02:10] Speaker 00:
Is this an accurate summation of the history?

[00:02:14] Speaker 04:
Yes.

[00:02:14] Speaker 04:
But the crux is why the rejection was there.

[00:02:18] Speaker 04:
And it wasn't over crane.

[00:02:22] Speaker 04:
There was an original rejection, Chief Judge Prost, over crane.

[00:02:27] Speaker 04:
And on appendix pages 315 and 316, the prosecutors add in this simultaneous

[00:02:35] Speaker 04:
A subset and B subset predetermine maximum time.

[00:02:40] Speaker 04:
Then the examiner on pages A322 and 23 rejects it as redundant and says it's redundant and so it's indefinite and it's redundant and so it doesn't deal with Crane.

[00:02:53] Speaker 04:
But the examiner never disputed the distinction that the prosecutors made at A316, that the difference between this invention and Crane

[00:03:03] Speaker 04:
is that Crane was a single detection.

[00:03:05] Speaker 04:
It was a light beam, single detection.

[00:03:07] Speaker 04:
And that this invention had two separate detections of separate pins.

[00:03:11] Speaker 04:
That was the basis to distinguish Crane.

[00:03:14] Speaker 04:
And there is no rejection of that.

[00:03:15] Speaker 04:
There's no dispute about that.

[00:03:17] Speaker 01:
The only issue... Let's go back to the simultaneous detection.

[00:03:20] Speaker 01:
Yeah.

[00:03:21] Speaker 01:
Okay.

[00:03:21] Speaker 01:
The word simultaneous is included in the claims.

[00:03:24] Speaker 01:
Correct.

[00:03:26] Speaker 01:
You removed the word simultaneous from the claims.

[00:03:28] Speaker 01:
Right.

[00:03:29] Speaker 01:
And now you argue that it should be included.

[00:03:31] Speaker 01:
No, no.

[00:03:33] Speaker 04:
This is the key point.

[00:03:36] Speaker 04:
On page A22, 322, and A323, the examiner says both condition A that says simultaneous and condition B, the predetermined maximum, includes a zero time difference.

[00:03:49] Speaker 04:
The examiner said both conditions include a zero time difference.

[00:03:54] Speaker 04:
So in changing from simultaneous, you're not giving up the zero time difference.

[00:03:58] Speaker 04:
It's already included in condition B.

[00:04:00] Speaker 04:
They changed the language to end the redundancy and to make clear that it's two separate detections.

[00:04:07] Speaker 04:
And then at pages A329 and A330, they say, look, we're changing this to get rid of the redundancy, to have only one term because you were concerned about the redundancy.

[00:04:17] Speaker 04:
We still distinguish crane because we've got two separate detections.

[00:04:21] Speaker 04:
Nobody thought, there's absolutely no evidence in that prosecution history that they were getting rid of zero time because the examiner-

[00:04:30] Speaker 00:
Accepting your argument, just following it through about two separate detections, you could have then, if that were the case, you could have kept the word simultaneously in the revised claim language.

[00:04:42] Speaker 00:
You could have said only if they are simultaneous detection between the first and the second.

[00:04:49] Speaker 04:
Potentially they could have, but the problem was the examiner said it was redundant.

[00:04:54] Speaker 04:
And so they took out simultaneous because the examiner focused on that as being redundant.

[00:04:58] Speaker 04:
Redundant to what?

[00:04:59] Speaker 04:
redundant to less than a predetermined maximum.

[00:05:03] Speaker 04:
The examiner said that the way the claim language reads now is detecting only at the time between the detection of the first contact pin and the subsequent detection of the second contact pin of the plug does not exceed a predetermined maximum.

[00:05:20] Speaker 02:
You wanted to claim both simultaneous detection and subsequent detection up to a predetermined time value.

[00:05:28] Speaker 04:
Sure.

[00:05:28] Speaker 04:
Yes.

[00:05:29] Speaker 04:
But my point is that they did include that.

[00:05:32] Speaker 01:
The examiner said you can't do that, because if you're claiming subsequent detection, that's going to include simultaneous.

[00:05:39] Speaker 01:
Right.

[00:05:40] Speaker 04:
That's right.

[00:05:41] Speaker 04:
It's going to include simultaneous.

[00:05:42] Speaker 04:
It's going to include it definitionally, because less than a predetermined maximum includes zero.

[00:05:48] Speaker 04:
That's the point.

[00:05:49] Speaker 04:
And so in order to get rid of the redundancy, they got rid of the word simultaneous, and they added the word subsequent.

[00:05:55] Speaker 04:
And subsequent, in this context, doesn't have a temporal meaning, at least not necessarily.

[00:06:00] Speaker 04:
And we show in the specification that a zero-time difference is both the ideal case and a preferred embodiment.

[00:06:08] Speaker 01:
It seems to me that you amended and you rejected the limitations simultaneously in order to save the pen from being indefinite.

[00:06:20] Speaker 04:
But it was only because the terms were redundant.

[00:06:23] Speaker 04:
And the whole point is they smoothed out the redundancy.

[00:06:26] Speaker 04:
They made it a single statement with subsequent.

[00:06:30] Speaker 04:
And the point is, when you look at the prosecution history, Judge Raina, it's very clear that the examiner thought that both simultaneous and... I understand that.

[00:06:40] Speaker 01:
You sought to clarify.

[00:06:42] Speaker 01:
Yes, clarify.

[00:06:43] Speaker 01:
But in doing so, you actually rejected a very significant claim limitation.

[00:06:52] Speaker 04:
No, but that's the point.

[00:06:54] Speaker 04:
They didn't reject the claim limitation.

[00:06:55] Speaker 01:
Now you're clarifying before us.

[00:06:58] Speaker 04:
Well, I'm trying to explain what the prosecution history says.

[00:07:01] Speaker 04:
And when you look at it and piece it together, I think this is reasonable here for the prosecution history.

[00:07:07] Speaker 04:
Nobody thought they were disclaiming the zero time difference.

[00:07:10] Speaker 04:
They were simply taking out the word simultaneous and adding the word subsequent to clarify that it's a similar thing.

[00:07:15] Speaker 01:
Did Crane include simultaneous detection?

[00:07:18] Speaker 04:
Did Crane include simultaneous detection?

[00:07:21] Speaker 04:
I think the answer is... Yes, it does.

[00:07:25] Speaker 04:
No, what they said was that they said the examiner seems to think it includes simultaneous detection, and so we're saying we're different.

[00:07:32] Speaker 04:
And the only thing Crane did was a single detection.

[00:07:34] Speaker 04:
There's no concept of a zero-time difference in Crane.

[00:07:37] Speaker 01:
The only way you got past Crane at the prosecution stage is by eliminating the word simultaneous.

[00:07:44] Speaker 04:
Well, again, the rejection on Crane at that point was only for redundancy.

[00:07:48] Speaker 04:
It wasn't that

[00:07:49] Speaker 04:
It's not innovative, or it's the same as Crane.

[00:07:52] Speaker 04:
It was just that this was redundant language, and therefore the examiner said it was unclear, both with respect to indefinite and with respect to Crane.

[00:07:59] Speaker 04:
Read the prosecution history, it says the same thing with respect to both.

[00:08:03] Speaker 00:
Can I move you off before your time runs out?

[00:08:06] Speaker 00:
Sure.

[00:08:06] Speaker 00:
I speak only for myself, obviously.

[00:08:09] Speaker 00:
But I find somewhat persuasive your friend's alternative argument with respect to control means, that that's the indefinite.

[00:08:19] Speaker 00:
Leaving aside the basis upon which the district court relied for indefiniteness, but their alternative, that he rejected the notion that control means was indefinite because he described it as a structure with logic elements, da da da da da.

[00:08:34] Speaker 00:
And I'm having a hard time.

[00:08:37] Speaker 00:
I mean, logic elements isn't mentioned anywhere in the specification.

[00:08:40] Speaker 00:
I'm having a harder time concluding that control means is definite.

[00:08:45] Speaker 04:
Well, logic elements aren't disclosed, but the

[00:08:48] Speaker 04:
A specification discloses a voltage switch as part of the control means.

[00:08:52] Speaker 04:
That's at appendix page 54, lines 5 to 10.

[00:08:54] Speaker 02:
But the voltage switch doesn't do the job by itself.

[00:08:58] Speaker 04:
Well, it's part of it, though.

[00:09:00] Speaker 04:
It's part of the structure.

[00:09:01] Speaker 02:
But where is the rest of the structure?

[00:09:04] Speaker 04:
So there are basically four components to the structure.

[00:09:07] Speaker 04:
We're looking at box 60, right?

[00:09:09] Speaker 04:
Right, box 60.

[00:09:10] Speaker 04:
But if you look at the specification that describes box 60.

[00:09:13] Speaker 02:
Why don't you show it to me?

[00:09:17] Speaker 02:
point me to it, it'll be easier for me to follow along.

[00:09:28] Speaker 04:
It's in the patent, so at a panics page 48, it is one of the drawings of box 60.

[00:09:35] Speaker 04:
But when you look at the, and so it's a black box.

[00:09:38] Speaker 00:
Are we looking at figure four?

[00:09:41] Speaker 04:
Well, I'm in figure one and figure four.

[00:09:44] Speaker 04:
It's in both.

[00:09:46] Speaker 04:
But if you look at figure, for example, if you look at figure three, which might be more clear.

[00:09:53] Speaker 04:
Sure.

[00:09:54] Speaker 02:
I mean, box 60 is what you're pointing to as the structure, right?

[00:09:58] Speaker 04:
No, it's the drawing.

[00:10:00] Speaker 04:
It's a black box, but then the specification explains what box 60 is.

[00:10:04] Speaker 04:
Yeah, what box 60 is.

[00:10:06] Speaker 04:
And it says that there's a voltage switch that's part of box 60.

[00:10:10] Speaker 02:
Wait, I mean, this is what I wanted you to show me, not the picture.

[00:10:14] Speaker 02:
OK, I'm sorry.

[00:10:14] Speaker 04:
I'm sorry.

[00:10:15] Speaker 04:
So if you look at appendix at page 54, lines 5... Can you just give us the column?

[00:10:29] Speaker 04:
It is column... I'm sorry, if you look at... I think it's column 5.

[00:10:39] Speaker 04:
Yeah, it's column 5, lines 5 to 10.

[00:10:43] Speaker 04:
The control and supervision unit 60.

[00:10:45] Speaker 04:
further comprises a voltage switch by means of which the supply voltage of 110 volt 60 hertz can be applied to the internal supply lines.

[00:10:54] Speaker 04:
The supply lines connect the control and supervision unit to the line, supervision detector connected to the short circuit detector.

[00:11:01] Speaker 02:
And... Where does that say anything except box 60 is a voltage switch?

[00:11:08] Speaker 02:
It says comprises a voltage switch.

[00:11:10] Speaker 02:
But it doesn't say anything else.

[00:11:12] Speaker 02:
Well, it says...

[00:11:14] Speaker 02:
So, so they're again... Read in other words, but they're not there.

[00:11:22] Speaker 04:
Right.

[00:11:22] Speaker 04:
The only thing that isn't in the specification specifically is the internal circuitry.

[00:11:27] Speaker 04:
But what Dr. Collins testified the logic element was with circuitry.

[00:11:33] Speaker 04:
The only thing that's missing when you have a voltage switch and supply lines and signal lines going into the box is the circuitry that actually operates the switch.

[00:11:41] Speaker 04:
And what Dr. Collins testified is somebody skilled in the art would understand what circuitry to build there.

[00:11:47] Speaker 04:
And this court has held in repeated cases that the absence of internal circuitries in the specification isn't a problem for indefiniteness.

[00:11:55] Speaker 04:
That's the only thing that was missing, and that's the only thing the logic elements were, were internal circuitry.

[00:11:59] Speaker 04:
Everything else, the switch, the lines, is there.

[00:12:02] Speaker 04:
And so based on this court's precedent, this is sufficiently definite for somebody skilled in the art to understand the bounds of the plates.

[00:12:10] Speaker 04:
I'm cutting into my reply time.

[00:12:12] Speaker 00:
Okay, right away here from the other side.

[00:12:14] Speaker 04:
Okay, thank you.

[00:12:28] Speaker 03:
Morning, Your Honors.

[00:12:29] Speaker 03:
May it please the Court, I'm Jonathan Freiman on behalf of the Appellee.

[00:12:33] Speaker 03:
I'd like to start with the 112F, the alternative grasp for firmness.

[00:12:36] Speaker 00:
Yeah, can you respond actually to start off where your friend left off, which is why the district court, his description, he described the structures, logic elements to receive and transmit internal and external signals and configured to activate switches based on those signals.

[00:12:53] Speaker 00:
Well, the first thing is that the specification doesn't say logic elements.

[00:12:56] Speaker 00:
Well, that's a word, but why isn't what your friend pointed us to in the specifications specific to draw those conclusions?

[00:13:03] Speaker 03:
The voltage switch, well, the unit here, the functions being claimed in the means plus function claiming here are control and supervision.

[00:13:11] Speaker 03:
A voltage switch doesn't control or supervise.

[00:13:13] Speaker 03:
It's not doing the timing detection or determining whether they're both there at the same time after they've been inserted.

[00:13:21] Speaker 03:
So it's just an on-off switch.

[00:13:22] Speaker 03:
You can't do the controlling or the supervising.

[00:13:25] Speaker 03:
We're talking about the brains here, the control and supervision unit.

[00:13:29] Speaker 03:
And in case after case where this court has construed a means plus function claiming of a control box, a control unit, any similar language, it said, you have to disclose the structure.

[00:13:38] Speaker 03:
The specification has to say what it is.

[00:13:41] Speaker 03:
It's not enough that a skilled artisan can imagine one or more structures that, in fact, could fulfill the function.

[00:13:47] Speaker 03:
That's pure functional claiming.

[00:13:48] Speaker 03:
That's not enough.

[00:13:49] Speaker 03:
So the voltage switch can't do it.

[00:13:50] Speaker 03:
That's just, again, an on-off switch that the brains will tell it what to do.

[00:13:55] Speaker 03:
There's just inputs, and when he gets up on rebuttal, ask him to point where in the specification it shows you what is actually doing the controlling and supervising.

[00:14:03] Speaker 03:
Not what are the wires in, what are the wires out.

[00:14:06] Speaker 03:
Once you're in the brains, what's doing it?

[00:14:08] Speaker 02:
If the specification had included voltage switch and controller, you would still say

[00:14:17] Speaker 02:
Because it just says controller.

[00:14:18] Speaker 03:
That would just be reiterating control units.

[00:14:20] Speaker 03:
Now, it would be harder.

[00:14:21] Speaker 03:
Yeah, that would just be reiterating control box or control unit to say controller is just a synonym for that.

[00:14:27] Speaker 03:
Again, there's no structure that's provided there as to saying the function.

[00:14:31] Speaker 03:
It controls.

[00:14:32] Speaker 03:
That's a function.

[00:14:34] Speaker 03:
There needs to be a structure.

[00:14:35] Speaker 03:
That's the quid pro quo under the 112f standard, as this court has said repeatedly.

[00:14:40] Speaker 03:
And again, the question is, can we

[00:14:43] Speaker 03:
get a skilled artisan to look at the specifications and imagine a structure.

[00:14:47] Speaker 03:
Biomedino makes it very clear that that's not the standard.

[00:14:50] Speaker 03:
The question is whether a skilled artisan would read the structure, would read the specification, I'm sorry, to clearly claim the structure.

[00:15:05] Speaker 02:
Because I'm a little confused where the fact line and the law line is.

[00:15:09] Speaker 02:
I mean, it seems like the district court made a factual conclusion that a skilled artisan would understand this disclosed logic elements.

[00:15:18] Speaker 02:
Do we have to find that there was clear error here?

[00:15:20] Speaker 02:
Or do we just find a legal error that he's pointing to something that is not disclosed at all?

[00:15:27] Speaker 03:
I think you can describe it either way, to be honest.

[00:15:29] Speaker 03:
You could say that the court clearly erred by applying the wrong legal standard under Biomedino.

[00:15:34] Speaker 03:
Or you could simply say that there was clear error in relying on an expert opinion that applied the wrong legal standard.

[00:15:41] Speaker 02:
But either way.

[00:15:42] Speaker 02:
What do we do if we reach that conclusion?

[00:15:44] Speaker 02:
Do we vacate and remand for a new determination of indefiniteness under a proper standard and new factual findings?

[00:15:52] Speaker 03:
Not in this circumstance, Your Honor, because the question is whether there is any evidence of record whatsoever that can support the notion that a skilled artisan can lead the specification

[00:16:03] Speaker 03:
to disclose the structure, and there's no such evidence.

[00:16:06] Speaker 03:
So in light of that, the court simply reverses, I'm sorry, affirms on the alternative ground and finds that the patent is indefinite for lack of structure in the Means Plus Function Claiming.

[00:16:21] Speaker 03:
If there are no further questions about the Means Plus Function Claiming, I'll turn to the grounds of the district court's decision.

[00:16:32] Speaker 03:
And again, as Your Honors noted, what we have here in the prosecution history is a clear situation where the patent said both simultaneous and predetermined maximum time.

[00:16:45] Speaker 03:
And then the determination was made by the applicant to remove simultaneous in response to the examiner's rejection and add subsequent.

[00:16:54] Speaker 03:
It's very clear that there's a disclaimer of simultaneous.

[00:16:57] Speaker 03:
And it's very clear that the expert testimony before the district court

[00:17:01] Speaker 03:
at the time of claim construction was that a disclaimer of simultaneous, if it happened, necessarily included some tolerance.

[00:17:12] Speaker 03:
That was unrebutted expert testimony of claim construction.

[00:17:15] Speaker 03:
Now what they've done in order to try to muddle the record is... No, I'm not clear.

[00:17:21] Speaker 00:
Let's assume we accept what the district court said about simultaneous, that simultaneous is excluded.

[00:17:26] Speaker 00:
What he or she, I don't remember who it was, says is we're still not clear, because simultaneous, we don't know what it means.

[00:17:33] Speaker 00:
But all the experts said that simultaneous means the time from zero seconds to a tolerance value.

[00:17:41] Speaker 00:
So is that what we're down to, that the district court said, well, we don't know what the tolerance value is?

[00:17:46] Speaker 00:
That's what makes the claim indefinite?

[00:17:49] Speaker 00:
That's right, Your Honor.

[00:17:50] Speaker 00:
That's what I understood his argument to be.

[00:17:52] Speaker 03:
That's right.

[00:17:53] Speaker 00:
So you're saying that it's the tolerance value.

[00:17:56] Speaker 00:
It's the fact that that's indefinite.

[00:17:59] Speaker 00:
It strikes me that given the expert testimony, tolerance value was not indefinite under our cases, at least, in the way we describe our indefinite.

[00:18:09] Speaker 03:
Well, the first question in terms of determining if the district court clearly erred in its analysis of the subsidiary factual question of what the

[00:18:18] Speaker 03:
what the tolerance was, according to the expert testimony, is what was the evidence that the district court actually had before it at the time of claim construction?

[00:18:26] Speaker 03:
Not what was submitted later in a motion for reconsideration or after the judge said not to send him any more stuff at the summary judgment phase on indefiniteness.

[00:18:33] Speaker 03:
But what did he have before him at the claim construction hearing, at the Markman hearing?

[00:18:37] Speaker 03:
And what he had before him was a strontics expert saying, well, you can't figure out what the tolerance is.

[00:18:44] Speaker 03:
It could be a wide range.

[00:18:45] Speaker 03:
One skilled in the art doesn't know.

[00:18:47] Speaker 03:
In fact, it's a subjective decision.

[00:18:49] Speaker 03:
And what you have from Luthanza is Luthanza's expert saying at his deposition, well, there is some tolerance here.

[00:18:56] Speaker 03:
And no, I don't know what it is.

[00:18:57] Speaker 03:
And I don't know if it's a half second or a millionth of a second.

[00:19:00] Speaker 03:
That's a huge difference, Your Honor.

[00:19:02] Speaker 03:
We're not talking about something that's meaningless.

[00:19:04] Speaker 03:
We're talking about the tolerance could be so big that we really don't know what is subsequent and what is simultaneous plus tolerance.

[00:19:12] Speaker 03:
That was the district court's factual finding on all of the extrinsic evidence before it.

[00:19:16] Speaker 03:
at claim construction.

[00:19:17] Speaker 03:
Of course, that's subject to clear error review under TEVA.

[00:19:21] Speaker 03:
Now, did the district court err in refusing to consider the second expert report, which was submitted in a motion for reconsideration?

[00:19:30] Speaker 03:
Separate question.

[00:19:31] Speaker 03:
There, the judge said, well, our local rules say you can't submit another expert report at reconsideration if you could have submitted it to start with.

[00:19:39] Speaker 03:
And there it was clear, I mean, we'd made the

[00:19:42] Speaker 03:
assertions of indefiniteness from the beginning on this basis.

[00:19:45] Speaker 03:
We'd submitted an expert report on this basis.

[00:19:47] Speaker 03:
We'd raised this issue at depositions on this basis.

[00:19:50] Speaker 03:
We had briefed it at the Markman hearing.

[00:19:52] Speaker 03:
They'd submitted a rebuttal expert.

[00:19:54] Speaker 03:
They just chose not to address this issue.

[00:19:56] Speaker 03:
So then they wait until after claim construction and submitted along with a motion for reconsideration.

[00:20:01] Speaker 03:
According to the district court's local rules,

[00:20:04] Speaker 03:
We didn't even have a chance to respond to the motion for reconsideration because the court doesn't want to waste its time on that stuff if it looks at a motion for reconsideration and sees that stuff could have been submitted earlier.

[00:20:13] Speaker 03:
So we just denied the motion for reconsideration.

[00:20:15] Speaker 03:
They didn't challenge that.

[00:20:16] Speaker 03:
They didn't say the court erred in its motion for reconsideration decision.

[00:20:20] Speaker 03:
So the second report is it's just not relevant.

[00:20:23] Speaker 03:
It's not relevant to the question of whether the district court clearly erred under TEVA in resolving the question of the extrinsic evidence before and at the Markman hearing.

[00:20:34] Speaker 03:
The third expert report, again, that they point to throughout their briefs and try to create questions of disputed fact.

[00:20:40] Speaker 03:
Again, that's submitted at summary judgment after the court has already said, I've made my determination at claim construction that the patent is indefinite.

[00:20:48] Speaker 03:
And I don't want to hear argument on again, because you could have told me all about it during our entire regular process.

[00:20:54] Speaker 03:
You didn't do that.

[00:20:55] Speaker 03:
I don't want more factual dispute.

[00:20:57] Speaker 03:
The only purpose of the summary judgment process at this point is, I found that the patent is indefinite.

[00:21:02] Speaker 03:
If the patent is indefinite, is it invalid?

[00:21:06] Speaker 03:
You can brief that question if you want to.

[00:21:07] Speaker 03:
It's sort of an obvious answer.

[00:21:08] Speaker 03:
And if it's invalid, can it be infringed?

[00:21:10] Speaker 03:
Again, brief it if you want to.

[00:21:11] Speaker 03:
The answer is obvious.

[00:21:12] Speaker 03:
He gives them a chance to brief it, and then he grants summary judgment after that.

[00:21:21] Speaker 03:
If there are no further questions, Your Honors, I thank the court.

[00:21:33] Speaker 00:
All right.

[00:21:35] Speaker 04:
So a lot to cover here.

[00:21:37] Speaker 00:
First, I'll talk about- Let me just start with the last point.

[00:21:40] Speaker 00:
The district court excluded all of the expert testimony on the second round.

[00:21:44] Speaker 00:
Without that testimony, where are you at in terms of making the argument on zero tolerance or whatever?

[00:21:52] Speaker 04:
We're fine without the expert testimony.

[00:21:54] Speaker 04:
And first of all, the district court didn't exclude that second declaration.

[00:21:57] Speaker 04:
That's absolutely incorrect.

[00:21:59] Speaker 04:
The record makes clear nobody challenged the second declaration.

[00:22:02] Speaker 00:
When did the second declaration come in?

[00:22:04] Speaker 04:
On reconsideration.

[00:22:05] Speaker 04:
But the district court never said that it was excluding that.

[00:22:08] Speaker 04:
But the first declaration, which nobody challenges, includes this.

[00:22:13] Speaker 04:
So for example, their expert, Mr. Bajak, concedes

[00:22:18] Speaker 04:
in his expert report, Appendix 462, Paragraph 39, that the tolerance he's talking about is a normal tolerance.

[00:22:25] Speaker 04:
He then concedes in his deposition that he's not rendering an indefiniteness opinion on that at all.

[00:22:31] Speaker 04:
Our expert, Dr. Collins, in his deposition specifically says that the claims are discernible with a disclaimer and that somebody skilled in the art would understand tolerances and what they were.

[00:22:44] Speaker 04:
That's Appendix 425 to 426.

[00:22:47] Speaker 04:
My opponent says that the expert said it could be one millisecond or half a second.

[00:22:52] Speaker 04:
That's not what he said.

[00:22:53] Speaker 04:
That was the question that was asked.

[00:22:54] Speaker 04:
And he said, look, he didn't answer that question.

[00:22:57] Speaker 04:
He said, what you have to look at is the context.

[00:22:59] Speaker 04:
What's the device?

[00:23:00] Speaker 04:
What's going on?

[00:23:02] Speaker 04:
Somebody skilled in the art would understand the tolerance.

[00:23:05] Speaker 04:
That's the evidence.

[00:23:05] Speaker 04:
And that's in before reconsideration.

[00:23:07] Speaker 04:
That's in before claim consent.

[00:23:09] Speaker 01:
Didn't the district court say that it did not rely on any expert evidence?

[00:23:14] Speaker 04:
The district court

[00:23:15] Speaker 04:
Yeah, the district court may have said that, but the point is that there was no evidence supporting this tolerance other than the expert evidence.

[00:23:24] Speaker 04:
This word tolerance, this concept, is not in the prosecution history, the spec, or the claims.

[00:23:29] Speaker 04:
So the only thing he could possibly have relied on there was expert evidence.

[00:23:32] Speaker 04:
There was no other evidence.

[00:23:33] Speaker 04:
That's why we say this should have been a summary judgment issue for the jury, not for the judge to decide, because there was nothing in the intrinsic record that goes to this tolerance issue.

[00:23:42] Speaker 04:
If I could turn for a minute to the means plus function element, if I could direct the court's attention to appendix 55, column 7, lines 44 to 59, there the specification says, if this contact time is below... Sorry, what's the line number?

[00:24:00] Speaker 04:
Sorry, it's lines 44 to 59, and I'm quoting a piece of that right here.

[00:24:06] Speaker 04:
It says, if the contact time is below a maximum value, the control and supervision unit 60

[00:24:12] Speaker 04:
applies the supply voltage to the supply line 20 by means of an internal voltage switch.

[00:24:19] Speaker 04:
So it's saying that the control unit is, in fact, the internal voltage switch.

[00:24:24] Speaker 04:
And that is enough structure.

[00:24:26] Speaker 04:
I would submit this court has had case after case where it has said that a black box where the only thing is missing is circuitry, which is the only thing that's missing here, is sufficient.

[00:24:37] Speaker 04:
It said that in technology licensing versus video tech.

[00:24:40] Speaker 04:
It said it in telecordia.

[00:24:42] Speaker 04:
and several other cases.

[00:24:43] Speaker 04:
So you've got the voltage switch which performs the function, and the only thing that's missing is internal circuitry.

[00:24:49] Speaker 04:
The last point I'd like to turn to for a minute is going back to the supposed disclaimer.

[00:24:56] Speaker 04:
I direct the court's attention to appendix 322 to 323.

[00:25:00] Speaker 04:
Let me read.

[00:25:01] Speaker 04:
This is in our brief at page 34.

[00:25:03] Speaker 04:
It says condition A, this is simultaneous, is a subset or special case of condition B. This is the examiner's rejection.

[00:25:11] Speaker 04:
If condition A is met and the two contact pins are detected simultaneously, then condition B is automatically met.

[00:25:18] Speaker 04:
The only thing they were doing was collapsing these two conditions.

[00:25:23] Speaker 04:
And it is absolutely clear that the examiner thought that zero time was included in both A and B. If you collapse them, then zero time has to be included.

[00:25:36] Speaker 00:
The panel will take a short recess.