[00:00:00] Speaker 00: In 1485, Mears Technologies, Inc. [00:00:04] Speaker 00: versus Finasaur Corporation, Mr. Summerfield. [00:00:07] Speaker 01: Thank you, Your Honor. [00:00:07] Speaker 01: May it please the Court? [00:00:10] Speaker 01: The sole claim construction issue on appeal is whether the two claimed wavelength dispersive elements, one programmable, the other not, must be included in the claim spatialite modulator. [00:00:22] Speaker 01: I want to go straight to the claim, which appears on page 852, column 8, [00:00:27] Speaker 01: And it's clear that it is the tunable filter that does the comprising of this claim. [00:00:31] Speaker 02: We're talking here about claim one. [00:00:33] Speaker 01: Claim one, yes, Your Honor. [00:00:34] Speaker 01: It's representative of all the claims. [00:00:36] Speaker 02: Let me just tell you what I'm focusing on on the claim language. [00:00:43] Speaker 02: Tunable filter that comprises this modulator. [00:00:48] Speaker 02: And then it starts talking about what is going on with the modulator. [00:00:52] Speaker 02: It's for displaying certain data [00:00:55] Speaker 02: as a series combination of, now as a series combination of, because of the word combination, naturally means at least two things are going to follow that word combination. [00:01:09] Speaker 02: Not just one thing. [00:01:10] Speaker 02: So that notwithstanding the extremely peculiar comma in that claim language, the natural meaning is [00:01:20] Speaker 02: the combination is the two things, the two filters. [00:01:23] Speaker 02: Can we call them filters instead of dispersive elements? [00:01:26] Speaker 02: We can. [00:01:27] Speaker 02: OK. [00:01:27] Speaker 02: The two filters. [00:01:30] Speaker 02: And this is the series combination itself is introduced by something that the function of the modulator is to display as a series combination of two things. [00:01:46] Speaker 02: Why does that not [00:01:49] Speaker 02: naturally mean those two filters have to be part of the modulator. [00:01:54] Speaker 01: Because it's actually the function of the optical filter, the very first words in the claim. [00:01:59] Speaker 01: That's what's doing the displaying here. [00:02:01] Speaker 01: And let me be the first to concede that this language is not as clear as it could be. [00:02:06] Speaker 00: I thought you conceded that both the dynamic and static filter, if that's what we're calling them, achieve the display. [00:02:15] Speaker 01: They do, Your Honor, but that begs, whether something is displaying begs the question, do the things doing the displaying have to be within the spatial light modulator? [00:02:24] Speaker 01: And I believe this is where the specification and the figures in the specification are instructive. [00:02:30] Speaker 01: I'd like to go to figures 1, 2a, and 2b on page A44 to begin with. [00:02:35] Speaker 01: These all show, according to the specification, the optical filter as opposed to the spatial light modulator. [00:02:41] Speaker 01: And they are all identical except for the input [00:02:44] Speaker 01: configurations on the left side of the figures. [00:02:48] Speaker 01: Other than that, they all depict identically element 2 and element 3, the former being the static wavelength dispersive element and the latter being the programmable dispersive element. [00:03:01] Speaker 01: They are clearly depicted as separate things. [00:03:06] Speaker 01: So why that becomes important is if we look at column 4 on page A50. [00:03:13] Speaker 01: the specification describes. [00:03:14] Speaker 01: The dynamic hologram three would probably be implemented as an electronically controlled image displayed on an amplitude or phase modulated SLM, SLM standing for spatial light modulator. [00:03:27] Speaker 01: So here the specification very clearly talks about the SLM in terms of element three and not element two. [00:03:34] Speaker 02: And there are four or five such references in the specification. [00:03:39] Speaker 02: Given the claim language and the prosecution history, why is that enough? [00:03:44] Speaker 01: Because, Your Honor, if we look at, again, going back to the notion that the claim could be written clearer, it clearly doesn't say that those two elements are in the spatial light modulator. [00:03:55] Speaker 00: Yeah, but the prosecution history says so. [00:03:57] Speaker 01: Let's turn to that, Your Honor. [00:03:59] Speaker 01: And if we want to look at a good synopsis of what the prosecution history and its relevant part says, we can turn to page four of the red brief. [00:04:11] Speaker 01: So we start with what is in the first paragraph under the heading prosecution history of the 361 patent. [00:04:19] Speaker 01: And the third sentence reads, the examiner stated that, quote, the claims purport to be for a wavelength selective filter, not a spatial light modulator, but they fail to set forth the structure of the electronically programmable spatial light modulator. [00:04:34] Speaker 01: The electronically programmable, that isn't the static wavelength dispersive element. [00:04:39] Speaker 01: As Finisar itself admits, [00:04:40] Speaker 01: That dispersive element isn't programmable. [00:04:42] Speaker 01: It's fixed. [00:04:44] Speaker 01: So then we look below that to the actual amended language and the deleted language that Finisar has put forth in the block quote below that. [00:04:56] Speaker 01: And then we go to the applicant's comment. [00:05:00] Speaker 01: And that's in the paragraph following the block quote. [00:05:04] Speaker 01: The applicant also provided comments explaining its amendment quote. [00:05:08] Speaker 01: The amendment to claim one recites a series combination of two wavelength dispersive elements in the spatial light modulator. [00:05:15] Speaker 01: And yes, again, reading in a vacuum, that would seem to indicate that both are in the spatial light modulator. [00:05:21] Speaker 02: The problem, I guess, is that it seems to me this really is pretty darn significant, because it's not in a vacuum. [00:05:28] Speaker 02: The examiner says, show me the structure of the modulator. [00:05:32] Speaker 02: And the language then gets changed to say something [00:05:37] Speaker 02: It introduces this language as a series combination of. [00:05:42] Speaker 02: You've got to have two things after that language, which means that the structure, the response to the demand for structure of the modulator, not of the tunable filter, of the modulator is [00:05:55] Speaker 02: Something that's a series of combination of both filters. [00:05:59] Speaker 02: And then the explanatory comment says, yeah, we actually mean that. [00:06:05] Speaker 02: Both are in the modulator. [00:06:07] Speaker 02: It seems to be not kind of extraneous, not even terribly unclear. [00:06:12] Speaker 01: Judge, it is absolutely unclear. [00:06:14] Speaker 01: And the point of fact, as this Court has said on multiple occasions, beginning with Phillips, the reason that the prosecution history is less reliable than the specification [00:06:23] Speaker 01: is because it is this back and forth between the applicant and the examiner. [00:06:27] Speaker 01: It tends to be less specific. [00:06:29] Speaker 01: This is one of those instances. [00:06:30] Speaker 01: But this was pretty specific in this instance. [00:06:33] Speaker 03: Your Honor, if we actually look at the amended language... It also confirms the most natural reading of the claim language itself. [00:06:41] Speaker 01: Your Honor, with all due respect, that is not the most natural reading. [00:06:45] Speaker 01: especially if we read the claim. [00:06:47] Speaker 03: I don't know. [00:06:48] Speaker 03: I mean, when you use the word as a series combination, it seems as a matter of grammar to require that the two things following that be in a series. [00:06:58] Speaker 01: Your Honor, what's described as the series is the thing for displaying computer-generated hologram patterns of data. [00:07:06] Speaker 03: And as everything in the specification indicates, a spatial light modulator for displaying [00:07:12] Speaker 01: Your Honor, that's not what does the displaying in this patent. [00:07:15] Speaker 01: It is the tunable filter. [00:07:18] Speaker 03: Well, then you put the clause in the wrong place. [00:07:21] Speaker 01: That might be, Your Honor. [00:07:22] Speaker 01: And again, as I said, I will be the first to concede this language is not as clear to me. [00:07:26] Speaker 03: Well, that's all we had. [00:07:27] Speaker 03: And we had that conflict with the specification, and you might have a better case. [00:07:31] Speaker 03: But what we have is claim language that most naturally reads one way, that may conflict with some parts of the specification, but is confirmed by the prosecution history. [00:07:40] Speaker 01: it conflicts with all parts of the specification, Your Honor, not just a few. [00:07:45] Speaker 01: Figures 1, 2a, 2b, 3, and 6. [00:07:50] Speaker 00: A specification that was written before the claims were amended to respond to the examiner's rejection. [00:07:57] Speaker 01: Your Honor, I'm aware of no law that says that that matters. [00:08:01] Speaker 01: In other words, if the specification is... It has to matter. [00:08:05] Speaker 00: I mean, that's the whole point of examination, is that things [00:08:10] Speaker 00: which might have been claimed or given up. [00:08:14] Speaker 00: Things are clarified. [00:08:16] Speaker 00: I mean, that's what goes on. [00:08:18] Speaker 01: It does go on. [00:08:19] Speaker 01: But as this Court has noted again, over and over again, the specification has primacy in assisting in the interpretation of the claims. [00:08:29] Speaker 01: The prosecution history is less reliable because it is less specific. [00:08:34] Speaker 01: It's the bargain between the applicant and the Patent Office. [00:08:38] Speaker 01: This is what we have here. [00:08:40] Speaker 01: If Finisar's construction is upheld, if the district court's construction is upheld, every single embodiment of the tunable filter is now excluded because every single embodiment has the programmable wavelength dispersive element as the SLM and the fixed grading being something else. [00:09:00] Speaker 01: So all those figures I just listed, every single figure that purports to depict the filter is now excluded. [00:09:09] Speaker 01: And assuming for the moment that that is the most natural reading of the claim, it's not the only reading of the claim. [00:09:19] Speaker 01: And there's no case law that says that the most natural reading of a claim is the one that must control, especially when a claim is read in light of the specification. [00:09:29] Speaker 01: And to be clear, Finisar has never argued that the applicant somehow disavowed claim scope by making the statement it did. [00:09:39] Speaker 01: That is said itself in the red brief. [00:09:42] Speaker 01: It also said that the district court didn't rely on disavowal, it just relied on this particular piece. [00:09:48] Speaker 01: That's true, Your Honor, but then if it's not disavowal, that piece of evidence becomes just that, a piece of evidence that has to be looked at in terms of all the other evidence in the record. [00:10:02] Speaker 01: The myriad statements in the specification, indeed all the statements in the specification that purport to describe the filter. [00:10:08] Speaker 01: It has to be compared to that. [00:10:12] Speaker 01: Disavowal would be a powerful argument because it would trump everything else. [00:10:15] Speaker 01: Here, there's no such argument made. [00:10:18] Speaker 01: It is a piece of evidence to be weighed with everything else. [00:10:23] Speaker 01: And we would suggest there is a long line of cases that says that if you exclude the best mode of practicing the invention described in a specification, that's presumptively erroneous claim construction. [00:10:39] Speaker 01: Pretty clearly, Your Honors, if all the modes are excluded, that would be even more suspect as a client construction, especially, again, given the fact that the evidence that Finisar and the district court relied upon so heavily comes from a source that this court has said is less specific and therefore less reliable than the specification. [00:11:05] Speaker 01: Your honors, that concludes all I have to say on this. [00:11:07] Speaker 01: I'd like to reserve the remainder of my time to address whatever issues there are on sanctions. [00:11:17] Speaker 00: OK. [00:11:18] Speaker 00: That's fine. [00:11:18] Speaker 00: Mr. Ratalescu, am I pronouncing that correctly? [00:11:20] Speaker 04: Ratalescu. [00:11:21] Speaker 04: Ratalescu. [00:11:22] Speaker 04: Good morning. [00:11:22] Speaker 04: I'd like to spend a few minutes on the claim construction issue and then move to the exceptional case determination. [00:11:28] Speaker 04: With respect to claim construction, I think we should step back [00:11:33] Speaker 04: and let's talk about exactly what happened during prosecution. [00:11:36] Speaker 04: The rejection? [00:11:38] Speaker 02: Can you talk about the spec first? [00:11:39] Speaker 02: I mean, overwhelmingly, their strongest point. [00:11:42] Speaker 02: There is, there is. [00:11:44] Speaker 02: I get to finish my question before you get to start answering, because you don't even know what the question is. [00:11:48] Speaker 02: Thank you, Your Honor. [00:11:49] Speaker 02: Overwhelmingly, their strongest point is the spec. [00:11:53] Speaker 02: So can you talk about whether it is true or not true that [00:12:00] Speaker 02: This interpretation of the claim would be inapplicable to every embodiment described in this deck. [00:12:08] Speaker 04: Not true. [00:12:09] Speaker 02: Where's an embodiment that would talk about the modulator as including both 3 and 2 in the main figure? [00:12:21] Speaker 04: There is two places that disclose etching the fixed dispersive element on the glass [00:12:29] Speaker 04: of the variable filter. [00:12:32] Speaker 04: Those two places are in column two, beginning at line 20 to 25. [00:12:40] Speaker 04: And then the second place is in connection with column seven, lines nine through 11. [00:12:48] Speaker 04: Those are two disclosures that say with respect to this fixed grading, we can etch it on the surface of the glass [00:12:59] Speaker 04: of the variable grading, the spatial light modulator. [00:13:04] Speaker 04: So we have two places in the spec where clearly the claims would continue to read on. [00:13:10] Speaker 04: That's the spec evidence. [00:13:12] Speaker 04: It's not absolutely no embodiments that the claims would end up describing. [00:13:17] Speaker 04: Then we move, of course, to the most natural reading of the claim book. [00:13:22] Speaker 02: I think I may be having a block here. [00:13:24] Speaker 02: Connect the specific claim construction [00:13:28] Speaker 02: modulator has to have both the fixed and the dynamic filters, part of it. [00:13:36] Speaker 04: If that's true, what embodiment in the spec talks about or shows a modulator that would... So at column two, line 20, it's the paragraph that is discussing the fixed grading for the very first time [00:13:57] Speaker 04: in the disclosure of the invention section. [00:13:59] Speaker 04: So when we talk about the fixed grading for the very first time in the paragraph at column two, beginning at line 20 to 25, it says the fixed grading may simply have the form of a fixed regular amplitude grading or a phase plate. [00:14:13] Speaker 04: And then it goes on in one additional sentence to say, when the fixed grading has the form of a phase plate, it may be etched. [00:14:21] Speaker 04: It may be an etched glass plate. [00:14:25] Speaker 04: and may be physically combined with the dynamic holographic diffraction element by, for example, etching, being etched into its outer surface. [00:14:37] Speaker 02: Its outer surface is the reference to the outer surface of the... And what's your understanding of physically combined there? [00:14:44] Speaker 04: I mean, does that mean... In this case... I mean, there's no space between them? [00:14:49] Speaker 04: No. [00:14:49] Speaker 04: In this case, the outer surface of the variable [00:14:54] Speaker 04: Grading is glass they are made of glass the outer surface is glass and this is saying I'm going to etch it I'm going to scrape onto its surface a fixed grating that is one embodiment that's described in connection with the very first paragraph where it's talking about the fixed rating so there are actually there's no two in that there's just a three with with something etched on the back of it [00:15:23] Speaker 04: There is a variable grading where the surface of that variable grading is etched. [00:15:30] Speaker 04: So the fixed grading is physically combined with the variable. [00:15:36] Speaker 04: So that's clear with respect to this claim as properly construed reads on this embodiment. [00:15:44] Speaker 04: We have the most natural reading as well. [00:15:47] Speaker 04: that Judge Hughes pointed to originally. [00:15:51] Speaker 04: And I do want to spend one more minute on just really what happened during prosecution. [00:15:56] Speaker 04: The fight was over the structure of the modulator was not clear. [00:16:02] Speaker 04: The claim was rejected as not being specific enough. [00:16:08] Speaker 04: And the examiner said, [00:16:10] Speaker 04: Mears had failed to set forth the structure of the electronically programmable spatial light modulator. [00:16:17] Speaker 04: It was unclear. [00:16:18] Speaker 04: And so what did they do? [00:16:20] Speaker 04: They amended the claims with respect to the modulator, inserting the language as a series combination of the first and the second. [00:16:31] Speaker 04: So they amended the claim. [00:16:32] Speaker 04: The most natural reading of that, as we normally read, was then further reinforced when they explained the amendment. [00:16:40] Speaker 04: This amendment was explained and merely stated that the amendment to Claim 1 recites a series combination of the two wavelength dispersive elements in the spatial light modulator. [00:16:51] Speaker 04: So we have the most natural reading properly construed, reinforced by exactly the issue before this court. [00:16:59] Speaker 04: And then we have the filing of a lawsuit on a device that indisputably [00:17:10] Speaker 04: does not have both components, both gradings, or both diffractive elements in it. [00:17:17] Speaker 04: And that's the reason why the case was frivolous to begin with. [00:17:23] Speaker 04: With respect to the fees question, the issue here is claim construction. [00:17:28] Speaker 04: It's step one of the two-step infringement inquiry. [00:17:32] Speaker 04: We put aside the accused products. [00:17:34] Speaker 04: We look at what is the basis for alleging infringement. [00:17:39] Speaker 04: You have to construe the claim. [00:17:41] Speaker 04: And our point is, when you look at the rules for construction, you look at Phillips. [00:17:46] Speaker 04: You've got to look at everything. [00:17:47] Speaker 02: So tell me why the following, and I know this is contrary to your fees position, the claim language is a mess. [00:17:55] Speaker 02: It is syntactically a mess. [00:17:57] Speaker 02: The spec principally talks about [00:18:01] Speaker 02: the modulator as involving three but not two, namely only the dynamic filter. [00:18:08] Speaker 02: Why is that not enough to make at least reasonable their claim construction? [00:18:17] Speaker 02: I would assert... In isolation... By reasonable, I mean, could a district court, as this district court did, without abusing its discretion, find that to be a non-frivolous, non-exceptional claim construction position? [00:18:33] Speaker 04: Let's look at both pieces. [00:18:35] Speaker 04: The claim language you characterize as a mess. [00:18:38] Speaker 04: The district court judge characterized it as the most natural reading of this claim language doesn't support the claim of infringement. [00:18:45] Speaker 04: You then went to the specification, [00:18:47] Speaker 04: and you now talked about there being no embodiments or that three is not described in two, they're separate things, but that's not correct. [00:18:56] Speaker 04: There is disclosure in the spec supporting the physical combination showing that there is two in one. [00:19:03] Speaker 04: So the claim language in terms of the natural reading is on defendant's side. [00:19:11] Speaker 04: The spec is clearly on defendant's side. [00:19:14] Speaker 04: The issue of whether the claim language [00:19:16] Speaker 04: can be read in a different way than what is being asserted was never, never asserted or argued below. [00:19:27] Speaker 00: Let's assume that their infringement position is very weak. [00:19:35] Speaker 00: in Octane and Highmark says that we reverse district courts for not awarding fees when people have weak cases. [00:19:43] Speaker 00: They don't say that. [00:19:44] Speaker 04: It's not a weak case. [00:19:45] Speaker 04: This is a case where there's no evidence of the infringement claim from day one. [00:19:50] Speaker 04: The reading of the claims, the specification. [00:19:52] Speaker 00: Even if it's frivolous, what case says that we have to tell the district court to award fees in a frivolous case? [00:20:00] Speaker 00: The way I read the Supreme Court, [00:20:02] Speaker 00: Is there multiple factors, totality of the circumstances, an unfortunately vague test? [00:20:09] Speaker 00: But there's nothing in there that says you've got to award fees if it's an unreasonable or frivolous position. [00:20:17] Speaker 04: So we're not asking this court to order the awarding of fees. [00:20:22] Speaker 04: We're asking this court to rule that the discretion was abused in the finding that it wasn't an exceptional case. [00:20:33] Speaker 04: based on a couple key errors, the first being the district court's statement or assessment that Mears did not ignore the prosecution history. [00:20:47] Speaker 04: That was the basis, one of the fundamental bases for the request for fees, is that the position that they were taking in the litigation [00:20:56] Speaker 04: was directly contrasted and in contradiction to the position that they took before the patent office. [00:21:03] Speaker 04: They got the claims, arguing what the structure was, and then they turned around and accused the very structure that was essentially carved out of infringement. [00:21:14] Speaker 04: That's a mark tech issue. [00:21:16] Speaker 04: under Mark Tech, very similar circumstances where the patentee filed claims. [00:21:21] Speaker 04: There was rejections. [00:21:22] Speaker 04: There was a discussion of what the claims cover and don't cover. [00:21:26] Speaker 04: And then they went ahead and filed suit, taking a position that flew in the face of what was distinguished. [00:21:34] Speaker 00: OK, so the district court said they addressed the prosecution history. [00:21:38] Speaker 00: You say, in fact, they did. [00:21:39] Speaker 00: What other error is there in the district court's opinion? [00:21:43] Speaker 04: The prosecution history was [00:21:45] Speaker 04: key and fundamental because the claim construction issue was does the spatial light modulator include both or one? [00:21:53] Speaker 04: The second error is the conclusion that Mears' infringement allegations had merit under this proposed plain and ordinary construction of the term. [00:22:09] Speaker 04: And the point is that their claim construction position had no merit from day one. [00:22:16] Speaker 04: There, with respect to the plain and ordinary meaning, we have a clause. [00:22:21] Speaker 04: It's actually 30 words long. [00:22:23] Speaker 04: And the issue is, was there any support for interpreting this 30 word long clause to say that you don't have to have two and one? [00:22:34] Speaker 04: And from day one, there was no support. [00:22:37] Speaker 04: It was frivolous, because we know about the natural reading. [00:22:41] Speaker 04: They didn't have an alternative reading. [00:22:43] Speaker 04: We talked about the spec. [00:22:45] Speaker 03: What do you mean they didn't have an alternative reading? [00:22:48] Speaker 04: They didn't have the alternative reading that says it's the filter that's two and one in the district court briefing. [00:22:56] Speaker 04: In the district court briefing, the argument that this two and one applies to the filter, not the spatial light modulator, was never made. [00:23:03] Speaker 04: In the district court briefing, we disputed the construction of this 30-word term, and all we effectively had [00:23:13] Speaker 04: was, oh, look, there's figures in the spec that shows that they're separated. [00:23:19] Speaker 04: So the point is they didn't have something grounded in the claim language to argue to the contrary, to the most natural reading. [00:23:27] Speaker 04: And then with respect to the spec, we all know that there's figures that sometimes aren't covered. [00:23:34] Speaker 03: And then with respect to the prosecution history, it's crystal clear. [00:23:36] Speaker 03: Yeah, but usually we don't have an instance where none of the figures are covered. [00:23:42] Speaker 04: And in this case, we aren't in that situation. [00:23:45] Speaker 04: We are not in a situation where the claims are describing something that's not disclosed. [00:23:52] Speaker 03: When you were responding to Judge Toronto's questions about the specification disclosing combinations, you pointed to language. [00:24:01] Speaker 03: You didn't point me to any figures. [00:24:02] Speaker 04: Well, the figures are actually optical diagrams. [00:24:07] Speaker 04: They're not structural diagrams. [00:24:09] Speaker 04: They're described as optical diagrams. [00:24:12] Speaker 03: Mears would like them to be interpreted as these structural diagrams, but the point is when... So is that language you pointed us to earlier describing any of the figures, or is it just describing in words a non-pictured embodiment? [00:24:27] Speaker 04: It's describing the overall invention. [00:24:29] Speaker 04: It doesn't refer specifically to the figures. [00:24:31] Speaker 04: I will agree with that. [00:24:33] Speaker 03: So there's no figure in the specification that would correspond with district court's construction? [00:24:39] Speaker 04: The figures are optical diagrams. [00:24:42] Speaker 04: They're not structural diagrams. [00:24:43] Speaker 04: So I believe that a person of ordinary skill in the art, when looking at an optical diagram, in terms of how it's structurally made is a different issue, and we're going to look at the disclosure of the structure in the spec, [00:24:56] Speaker 04: to understand. [00:24:57] Speaker 03: But I would assume if you thought that one of these optical diagrams actually corresponded with the district court's course construction, you would have pointed us to that rather than just to language. [00:25:08] Speaker 03: That's correct. [00:25:09] Speaker 03: So you don't have any evidence or any argument that any of the diagrams correspond to construction. [00:25:17] Speaker 04: Not a literal statement in the spec that says that. [00:25:20] Speaker 04: I just have other disclosure. [00:25:22] Speaker 04: So just getting back to [00:25:24] Speaker 04: I guess I have one minute left, so unless you have other questions, I will reserve a minute. [00:25:31] Speaker 00: Okay. [00:25:40] Speaker 00: Mr. Summerfield, I think you have about four minutes. [00:25:51] Speaker 01: Your Honor, let's start with column two of the 361 Patent, page 849, beginning at line 19. [00:25:58] Speaker 01: The passage, one of the two passages is Mr. Radulescu referred the bench to. [00:26:03] Speaker 01: And this has to do with the grading being etched into the programmable tuner. [00:26:09] Speaker 01: He says that that embodiment is covered by the district court's construction. [00:26:15] Speaker 01: It's actually not. [00:26:16] Speaker 01: The district court says that both devices have to be [00:26:19] Speaker 01: in the spatial light modulator, not a fixed two, not combined with. [00:26:24] Speaker 01: I can put a weathervane on a barn. [00:26:26] Speaker 01: That doesn't mean the weathervane is now inside the barn. [00:26:29] Speaker 02: I understood what Mr. Radulescu was saying. [00:26:34] Speaker 02: Tell me if this is an incorrect understanding of this passage. [00:26:38] Speaker 02: You have this single plate. [00:26:40] Speaker 02: It's dynamic on the front, fixed etched on the back. [00:26:46] Speaker 02: It's a single physical thing. [00:26:49] Speaker 01: No, Your Honor, it's the glass plate of the programmable tuner that's being etched. [00:26:53] Speaker 01: But the programmable tuner is more than just the glass plate. [00:26:57] Speaker 01: The glass plate is static. [00:26:59] Speaker 01: Its advantage is, as Finisar itself says, its advantage is it can... But they're physically part of the same thing, right? [00:27:09] Speaker 01: That doesn't mean that one is in the other, Your Honor. [00:27:12] Speaker 01: That's the point. [00:27:13] Speaker 01: And Judge, if we're looking at how this fits with the rest of the teachings, [00:27:18] Speaker 01: it's fairly clear that you have two kinds of dispersion going on here. [00:27:22] Speaker 01: One is programmable, the other is not. [00:27:26] Speaker 01: And to say that this passage somehow says you eliminate element two once you've etched it onto the glass of element three is a mischaracterization of this passage and every other teaching in this patent. [00:27:40] Speaker 01: Finisar goes to great length in its discussion [00:27:43] Speaker 01: of the technology in suit in the red brief to distinguish between a programmable tuner and a fixed tuner, talking about the advantages and disadvantages of each at page four. [00:27:56] Speaker 01: That distinction doesn't go away. [00:27:58] Speaker 02: So column seven, lines nine through 11, the size of the system could be reduced further by etching the fixed grading or hologram [00:28:10] Speaker 02: directly onto a glass face of the SLM, that's the modulator, dynamic hologram device? [00:28:19] Speaker 01: That's right, your honor, but the glass face isn't the only part of the SLM. [00:28:24] Speaker 01: Again, you're fixing it by etching it, but you're not putting it in the SLM. [00:28:29] Speaker 01: Again, like putting a weather vane on a barn. [00:28:31] Speaker 01: You can put the two things together, and yes, it does make the system smaller, but it doesn't eliminate the need for element number two. [00:28:37] Speaker 01: It's still there. [00:28:39] Speaker 01: And it is fundamentally distinct from element three. [00:28:42] Speaker 01: Both things are still there. [00:28:44] Speaker 01: And if we're talking about embodiments that practice the claim, your honors, to look at that teaching in light of all the other iterations of the invention that are described and depicted in this specification, one has to come to the conclusion that these two passages simply talk about taking two elements and combining them, but not putting both into the first. [00:29:06] Speaker 01: That is simply a misread of this specification. [00:29:12] Speaker 02: So in your view, this column 7, 9 through 11 lines, the front of this single plate would be the modulator, but the back would not? [00:29:20] Speaker 01: The back and everything else. [00:29:22] Speaker 01: It's not just the plate of glass. [00:29:24] Speaker 01: It's the tunable portion, the pixels that are tunable here that allows the tunability of how the wavelengths are dispersed. [00:29:30] Speaker 01: It's not just a piece of glass. [00:29:31] Speaker 01: It can't be. [00:29:33] Speaker 01: It has to be something that's programmed. [00:29:36] Speaker 01: I'd like to spend a few minutes on the issue of sanctions. [00:29:40] Speaker 01: First of all, if we look at figures 1, 2A, and 2B, this is precisely what was being accused of infringement in this case, and that's never been contested below. [00:29:49] Speaker 01: So the only way this becomes frivolous is if we start from the very beginning to say that the claim construction just excludes these embodiments. [00:29:57] Speaker 00: Secondly, there's... Okay, I think we're out of time. [00:30:01] Speaker 00: Most of my colleagues have questions. [00:30:02] Speaker 00: Thank you, Mr. Sanofi. [00:30:04] Speaker 00: Thank you, Your Honor. [00:30:06] Speaker 04: Yeah, I have one minute, and I'll stick to it. [00:30:08] Speaker 04: There's the two disclosures in the spec, the column seven disclosures. [00:30:12] Speaker 00: No, that's not part of your rebuttal. [00:30:14] Speaker 00: That's not about the attorney's fees. [00:30:16] Speaker 04: Well, it's the, you know, there's a baseless claim of infringement that's not supported by this spec. [00:30:24] Speaker 04: OK, OK, go ahead. [00:30:25] Speaker 00: Go ahead. [00:30:26] Speaker 04: Not supported by this spec, the claim, its most natural reading, requires both two in one. [00:30:32] Speaker 04: The specification describes embodiments where both [00:30:37] Speaker 04: are in the spatial light modulator. [00:30:41] Speaker 04: And we've got prosecution history that's crystal clear that what happened during prosecution was there was an issue as to what the structure was. [00:30:50] Speaker 04: It was clarified. [00:30:52] Speaker 04: It was made clear in the prosecution history. [00:30:55] Speaker 04: And then we have a case that was then filed that flies in the face of [00:30:59] Speaker 04: what was argued to the Patent Office. [00:31:01] Speaker 04: That falls within MarTech's determination. [00:31:04] Speaker 04: Thank you very much, Your Honor. [00:31:08] Speaker 00: I thank both counsel and cases submitted.