[00:00:00] Speaker 06:
Next case for argument is 16259A, Pentair Water Pool versus, and Spa versus Hayward.

[00:00:38] Speaker ?:
so

[00:01:18] Speaker 06:
I'm still pushing whenever you're ready.

[00:01:44] Speaker 03:
Good morning.

[00:01:47] Speaker 03:
Good morning, Your Honor.

[00:01:48] Speaker 03:
My name is David Cushing.

[00:01:50] Speaker 03:
I'm here on behalf of the patent owner, Appellant Pentair Water Pool and Spa.

[00:01:57] Speaker 03:
Your Honor, it's like many appeals from the U.S.

[00:02:00] Speaker 03:
Patent and Trademark Office.

[00:02:01] Speaker 03:
This case involves law and fact and technology.

[00:02:05] Speaker 03:
This appeal is unusual in that it can be decided as a matter of logic, standards of proof,

[00:02:12] Speaker 03:
standards of review without becoming too mired in the technology.

[00:02:16] Speaker 03:
So we're prepared to discuss at whatever level of depth the court would like us to go into on the technology, but that really isn't the focus of the arguments I'm going to make here.

[00:02:28] Speaker 03:
As you'll have seen from our briefs, there's a first issue.

[00:02:33] Speaker 03:
It's one of client construction.

[00:02:35] Speaker 03:
It's dealt with in detail in the briefs, but we like to try to simplify it.

[00:02:39] Speaker 03:
The only issue is with respect to the meaning of the phrase at the beginning of claim one that says determining a power factor based on the voltage and cut.

[00:02:47] Speaker 00:
Do you agree that it has determining a power factor can have two meanings?

[00:02:52] Speaker 03:
Yes, Your Honor.

[00:02:53] Speaker 03:
There's no disputes to that.

[00:02:54] Speaker 00:
Then how can it be that the board erred when they applied the broadest reasonable construction?

[00:03:02] Speaker 03:
Because the two meanings that this can have

[00:03:08] Speaker 03:
One means to figure out something you don't know, the other to fix it at a value you do know.

[00:03:14] Speaker 03:
There's no common concept between the two of those.

[00:03:17] Speaker 03:
You can't have a generic.

[00:03:18] Speaker 03:
If you could describe a concept that covered them both and say that's what determining means in the broadest reasonable interpretation.

[00:03:27] Speaker 00:
What would be the broadest reasonable interpretation would be it's either this or that, either one of which would invalidate or infringe.

[00:03:34] Speaker 03:
But it is either this or that.

[00:03:38] Speaker 03:
It can't be both.

[00:03:39] Speaker 04:
And we explain this in our... Why wouldn't figuring out be a form of fixing the value you do now arriving at?

[00:03:52] Speaker 04:
You're thinking of figuring out as something you have to go through a metal exercise in order to get there as opposed to just sort of picking it out.

[00:04:02] Speaker 04:
If you are fixing it at a value... I walk down to the grocery store and there are two kinds of cereal and I figure out which one I just take one.

[00:04:09] Speaker 03:
But that's if you're going to figure out, for example, in the client, the second-ish instance of the word determining is to determine whether.

[00:04:20] Speaker 03:
Clearly, you're going to figure out an answer.

[00:04:23] Speaker 03:
You're going to determine whether something is the case, determine if something is the case.

[00:04:28] Speaker 03:
But that's different than saying, I'm going to determine the outcome.

[00:04:36] Speaker 03:
if you can get a double-speaker that i'm going to fix the outcome that i'm going to prearrange the outcome why is this so hard?

[00:04:43] Speaker 06:
as Judge Stowell was saying that there are two potential ways you can construe it certainly in one of the use you agree it's the figure out use why the board applying the broadest reasonable interpretation couldn't do it exactly what it did here well there are two reasons your honor one is that is that there is no broad interpretation that covers both

[00:05:06] Speaker 03:
You can choose A or B, but there is no meaning that you can ascribe to the word determining that simultaneously encompasses both.

[00:05:17] Speaker 03:
And without that, you can't have a broadest reasonable interpretation.

[00:05:19] Speaker 03:
You have to have one interpretation of a word and a claim.

[00:05:27] Speaker 03:
You can choose a broad meaning that covers multiple sub-meanings, if you will.

[00:05:35] Speaker 03:
way to describe determining to have a meaning that actually does simultaneously encompass both.

[00:05:41] Speaker 03:
And you're going to have to choose one or the other.

[00:05:43] Speaker 03:
So that's the first thing.

[00:05:44] Speaker 03:
Second thing is that there is no support in the specification for the second meaning, figuring out meaning, calculating a power factor, and then basing your determination on it.

[00:05:57] Speaker 03:
Well, that's a serious matter.

[00:05:58] Speaker 04:
It's certainly the broadest reasonable interpretation

[00:06:01] Speaker 04:
Board made a mistake.

[00:06:02] Speaker 04:
Board shouldn't have been looking at it as a broadest reasonable interpretation issue.

[00:06:07] Speaker 04:
The law is pretty clear in that if you use the same term in a patent, let alone in the same claim, to mean two different things, the rule is you don't do that.

[00:06:21] Speaker 04:
There is a presumption that the word has the same meaning throughout.

[00:06:26] Speaker 04:
That's Pitney Bowes, right?

[00:06:29] Speaker 03:
There is a presumption.

[00:06:30] Speaker 04:
There is a presumption.

[00:06:31] Speaker 04:
And that's not a canon of claim obstruction.

[00:06:37] Speaker 04:
That's a rule.

[00:06:38] Speaker 04:
It's presumed to have the same meaning.

[00:06:41] Speaker 04:
Okay?

[00:06:42] Speaker 04:
And unless, in the specification and in accompanying documents, you've made very clear, as a matter of public notice, that there are two meanings.

[00:06:52] Speaker 04:
Right?

[00:06:53] Speaker 04:
Yes, sir.

[00:06:53] Speaker 04:
And in this case, 67 times, how many times in the patent,

[00:06:58] Speaker 04:
The one meaning chosen by the board reflected?

[00:07:02] Speaker 03:
Well, there are actually, there's a dispute, 65 to 67.

[00:07:05] Speaker 03:
There are a couple of instances where it's not used to mean figuring it out.

[00:07:12] Speaker 03:
But in most, it is.

[00:07:14] Speaker 03:
But, Your Honor, the meaning.

[00:07:16] Speaker 04:
What's your response to the argument?

[00:07:17] Speaker 04:
Well, even though it's maybe not a matter of broadest reasonable interpretation, the board got it right here.

[00:07:23] Speaker 04:
You didn't carry your burden to overcome the presumption.

[00:07:27] Speaker 03:
Your Honor, there's no... One way of overcoming the presumption is to show that there's no support in the specification for the second meeting.

[00:07:36] Speaker 03:
And there is no support in the specification for figuring out the power factor, calculating the power factor.

[00:07:43] Speaker 04:
Are you saying the patent is invalid for lack of written description?

[00:07:46] Speaker 03:
No, we're not, Your Honor.

[00:07:47] Speaker 03:
There is support for the fixing of the power factor, which is... But you say both meanings pertain.

[00:07:52] Speaker 03:
I'm sorry, Your Honor?

[00:07:53] Speaker 04:
You're saying both meanings pertain in the patent.

[00:07:57] Speaker 03:
I'm saying that the word determining is used in two different ways.

[00:08:02] Speaker 04:
In two different ways.

[00:08:02] Speaker 04:
It's used both ways.

[00:08:03] Speaker 04:
And in one way it's used, there's no support in the WD-4.

[00:08:07] Speaker 04:
Therefore, the patent says no.

[00:08:09] Speaker 03:
No, your honor, that's not it.

[00:08:09] Speaker 03:
I'm sorry.

[00:08:10] Speaker 03:
I didn't mean to say that.

[00:08:12] Speaker 03:
The claim says if we take the first instance of determining to mean figuring out, the claim then says figuring out a power factor and then later relying on that figured out power factor in an obstruction detection.

[00:08:28] Speaker 03:
The specification doesn't do that.

[00:08:30] Speaker 03:
It doesn't read on the disclosed embodiment.

[00:08:32] Speaker 03:
There is no place in the specification where there is a power factor that is figured out and then subsequently is used in an obstruction detection.

[00:08:41] Speaker 00:
But would, at the time of the invention, one of ordinary scale and the art would know how?

[00:08:46] Speaker 00:
Just to be clear, I hear what you're saying and I want to make sure I understand something that you're not saying.

[00:08:51] Speaker 00:
You're not saying that one of ordinary scale and the art at the time of the invention

[00:08:55] Speaker 00:
would not be able to calculate the power factor once that one person knew the voltage and current, right?

[00:09:02] Speaker 03:
No, you're right.

[00:09:02] Speaker 03:
We're not arguing that somebody wouldn't have been able to do that.

[00:09:06] Speaker 03:
This isn't an enablement issue.

[00:09:07] Speaker 03:
It's a written description issue.

[00:09:09] Speaker 03:
There's no description and specification of calculating the power factor, and then subsequently relying on that calculated power factor in an obsession.

[00:09:17] Speaker 04:
Does this discussion at all relate to what you say should have been brought across appeal?

[00:09:24] Speaker 04:
I mean, you're adversaries, aren't you sort of walking into his buzzsaw?

[00:09:31] Speaker 04:
No, Your Honor.

[00:09:32] Speaker 04:
We don't think so.

[00:09:35] Speaker 04:
His view is that the 747 application doesn't have any written description for the power factor as the trigger for the fault.

[00:09:47] Speaker 03:
Well, Your Honor, it does have a written description for support for a fixed power factor.

[00:09:53] Speaker 03:
for the power factor to be fixed and for the absorption detection to be based on known fixed values.

[00:09:59] Speaker 03:
That's what we asserted.

[00:10:02] Speaker 04:
But not that known fixed value.

[00:10:04] Speaker 04:
Two other known fixed values, current and right.

[00:10:09] Speaker 03:
I'm sorry.

[00:10:09] Speaker 04:
I thought there was no written description to support the power factor as the trigger for the fault condition.

[00:10:18] Speaker 03:
The trigger for the fault condition, actually in the disclosed embodiment,

[00:10:23] Speaker 03:
is measuring variations in current.

[00:10:26] Speaker 04:
But the thresholds that you set for analyzing... By demanding the claim, you threw in the power factor as a third thing for measuring the fault conditions.

[00:10:36] Speaker 03:
Yes, Your Honor.

[00:10:38] Speaker 04:
And the point that we made below... And that's where the written description argument is in the red brief.

[00:10:43] Speaker 04:
And I thought you were telling me now, in support of your claim construction argument, there's no support in the written description.

[00:10:49] Speaker 03:
No, Your Honor, there's no support in the written description.

[00:10:51] Speaker 03:
Or the power factor figuring it out.

[00:10:53] Speaker 03:
No, that's not what I said, Your Honor.

[00:10:55] Speaker 03:
I said there's no support in the written description for relying on a power factor that you are calculating.

[00:11:01] Speaker 03:
There is support for reliance on a power factor that you have fixed, that you know is fixed, and the voltage is fixed, and therefore that allows you to... But your claim calls for calculating any power factor.

[00:11:13] Speaker 03:
No, it doesn't, Your Honor.

[00:11:13] Speaker 03:
That's our point.

[00:11:15] Speaker 03:
The point is that that first use of the word determining doesn't mean calculating.

[00:11:21] Speaker 03:
It means fixing.

[00:11:23] Speaker 03:
And if you interpret the claim that way so that it says fixing the power factor.

[00:11:31] Speaker 03:
In the first instance, it says fixing the power factor based on the voltage and current because that's how the power factor correction circuit works.

[00:11:38] Speaker 03:
The board below agreed with that.

[00:11:40] Speaker 03:
And they said that there's written description support for the clients.

[00:11:44] Speaker 03:
and including the reliance on the power factor.

[00:11:49] Speaker 03:
And they also said that one of ordinary skill in the art could read the claim and understand from the specification that it encompasses the meaning that we'd have been proposing all along, which means that the first instance of determining means fixing.

[00:12:04] Speaker 03:
So there is support in the specification for fixing the power factor at known values, and then subsequently relying on that fixation in your

[00:12:13] Speaker 03:
in your obstruction detection.

[00:12:15] Speaker 03:
There is no support in the specification for calculating the power factor.

[00:12:20] Speaker 03:
And then relying on that... Well, what are you calculating?

[00:12:23] Speaker 04:
You said you're fixing the power factor.

[00:12:25] Speaker 04:
You're not ever calculating the power factor.

[00:12:27] Speaker 04:
Where in the claim were you calculating the power factor?

[00:12:30] Speaker 03:
We're not in the claim, Your Honor.

[00:12:33] Speaker 03:
We're fixing the power factor based on... We're fixing it.

[00:12:37] Speaker 03:
We're regulating it.

[00:12:40] Speaker 03:
And then, later, we are relying on

[00:12:43] Speaker 03:
the fixed regulated values in our obstruction detection.

[00:12:46] Speaker 03:
That's the interpretation that we're proposing.

[00:12:50] Speaker 03:
And the board below found that there's written description support for that.

[00:12:56] Speaker 03:
What they didn't do is say that there's written description support for the alternative.

[00:13:02] Speaker 03:
They did point to the description instances, but there are no instances.

[00:13:08] Speaker 03:
Unfortunately here, determining a power factor, that phrase in the claim,

[00:13:12] Speaker 03:
never occurs in the specification.

[00:13:14] Speaker 03:
And the use of the word determining is entirely context dependent.

[00:13:18] Speaker 03:
So in the absence of that same context, you can't decide from the way it's used in the specification that it should mean the same thing.

[00:13:30] Speaker 03:
Most of the places it's used in the specification, it needs to figure out that there is never a place in the specification where the phrase determining the power factor.

[00:13:39] Speaker 03:
So if somebody were in your skill in the art were to read this case,

[00:13:42] Speaker 03:
And the normal process would be they would go through and read the specification and then come to the claims.

[00:13:48] Speaker 03:
They would get to the claims and they would know what this patent does.

[00:13:51] Speaker 03:
They would know what the system does.

[00:13:53] Speaker 03:
And the only way that you can read determining is to fix.

[00:13:56] Speaker 03:
Because that's what patent does.

[00:13:58] Speaker 03:
That's what the Disclosed Embodiment does.

[00:14:01] Speaker 04:
And it doesn't... Your view is if you could come back to where I was on what the rules are in claim construction, you're saying that

[00:14:08] Speaker 04:
In this instance, the patentee is using the word determinate in two different ways inside the same claim, and that the specification makes crystal clear the distinction.

[00:14:20] Speaker 03:
We believe that it does.

[00:14:21] Speaker 03:
You have to.

[00:14:22] Speaker 04:
I mean under the law.

[00:14:24] Speaker 04:
It's in Skidney.

[00:14:26] Speaker 04:
You know, you're either a sword or a shield for years.

[00:14:30] Speaker 03:
Yes.

[00:14:32] Speaker 03:
You have to read it the way that we are saying because it isn't supported the other way.

[00:14:37] Speaker 04:
If we conclude that the written description does not make crystal clear that there are these two meanings, then you lose.

[00:14:48] Speaker 04:
As a matter of claim construction, wholly apart from the broadest reasonable interpretation.

[00:14:56] Speaker 03:
Yes.

[00:14:57] Speaker 03:
You can only read this one way.

[00:14:59] Speaker 03:
and cover what is in the dispensation.

[00:15:01] Speaker 04:
But the rules, as I understood it out of any buzz, has been, and I'm not one of the patent lawyers, so I had to learn these things and say, if you use the same word in the claim, it has the same meaning.

[00:15:13] Speaker 04:
It has only one meaning.

[00:15:14] Speaker 04:
It doesn't have two meanings.

[00:15:15] Speaker 04:
If you want to have two meanings, you've got to be very clear in respect about what those two meanings are.

[00:15:21] Speaker 04:
Those to me are the rules.

[00:15:22] Speaker 03:
But in this case, there is no dispute that there are two reasonable means.

[00:15:30] Speaker 04:
Oh yes, nobody's arguing about the fact that there are two, but the question is, if you read through the patent and you say, I know it means one of the two, I mean that's where the reasoning is, they're fixed and they say, well, determining means figuring out.

[00:15:50] Speaker 04:
And if you go to that data point and you agree with that, then you don't get the other meaning unless you have clearly established it in your spec.

[00:15:57] Speaker 03:
In this case, since there are two meanings, you look to the spec to see what's done with the power factor.

[00:16:04] Speaker 03:
And you see that the only thing that's done with the power factor is it's fixed.

[00:16:08] Speaker 03:
It doesn't have to be calculated because we know what it is.

[00:16:12] Speaker 04:
Why is it used 67 times in the pattern of the other way?

[00:16:16] Speaker 03:
It's never used determining the power factor.

[00:16:19] Speaker 03:
It's determining other things.

[00:16:21] Speaker 04:
Well, that's the problem, is you use the word throughout to have the same meaning.

[00:16:28] Speaker 03:
It is used many times throughout, and there are a couple of places where it's used to, we would say it's to mean fixing, not figuring out.

[00:16:38] Speaker 03:
But it's never used... No one's challenged the patent as being indefinite, right?

[00:16:45] Speaker 04:
No, Your Honor.

[00:16:46] Speaker 04:
To throw it up and say, how's an ordinary person

[00:16:49] Speaker 04:
or somebody reading the bat is supposed to know that there are two meanings to this?

[00:16:56] Speaker 03:
Well, there was no dispute really below that there were two meanings.

[00:17:01] Speaker 03:
And ours was adopted.

[00:17:04] Speaker 03:
So there was no support for the other one that was ever pointed to.

[00:17:08] Speaker 03:
So if this plank construction is adopted the way that we believe is the only way that it can be read on the disclosure,

[00:17:19] Speaker 03:
There is one whole set of rejections that just disappears because it's based on art that doesn't teach fixing power factor.

[00:17:28] Speaker 03:
So if you require that in the claims, there really isn't any dispute that one whole set of rejection goes away.

[00:17:35] Speaker 03:
In the other set of rejections, we have a problem where there was a motivation alleged to combine power factor correction and obstruction detection.

[00:17:45] Speaker 03:
And it was for financial and energy incentives.

[00:17:49] Speaker 03:
First thing is that that motivation was a one sentence, one phrase, and an expert declaration.

[00:17:55] Speaker 03:
And that is the entire body of evidence for the rationale for combining the art.

[00:18:01] Speaker 03:
The other thing is that even if you combine them, nobody ever took the claim and read it on the combined device or the modified device and said every limitation here is met.

[00:18:15] Speaker 04:
The board didn't understand you to be making that challenge.

[00:18:19] Speaker 04:
Your Honor, we did below say that the... Am I correct that the board understood that you weren't making that specific challenge, that all the limitations weren't there?

[00:18:32] Speaker 00:
Well, I don't believe the board ever said that.

[00:18:34] Speaker 00:
It's on page 13 of the appendix.

[00:18:37] Speaker 00:
So other than arguing that Moller fails to teach the specific recitation of the application of the method to a spot or pull the pattern, or doesn't argue that specific limitations, am I missing something?

[00:18:47] Speaker 03:
Of 5 to 36.

[00:18:49] Speaker 03:
Sorry?

[00:18:50] Speaker 03:
Of 5 to 36.

[00:18:51] Speaker 03:
The limitation that's missing is in claim one.

[00:18:55] Speaker 03:
And we argued that Moller, one of the references, teaches a power-based obstruction detection.

[00:19:04] Speaker 03:
The other reference teaches

[00:19:07] Speaker 03:
power factor correction, and you can add the two of them together, but you still don't have anything that teaches reliance on the power factor correction in your obstruction detection.

[00:19:21] Speaker 03:
If you combine these references for the motivation that we did, then you're going to make the tweaks that end up relying on the power factor correction in your obstruction detection.

[00:19:33] Speaker 03:
But they weren't looking at that.

[00:19:35] Speaker 03:
Their only motivation was financial and energy incentives.

[00:19:39] Speaker 03:
You drop A into B, and then in their claim chart, they said that whatever claim construction the owner is apparently arguing... I apologize for interrupting you.

[00:19:54] Speaker 00:
Is claim five through 36 or any of those dependent on claim one?

[00:19:58] Speaker 00:
They are all dependent on claim one.

[00:20:00] Speaker 00:
Okay, so the fact that the heading says claims five through 36, I don't think that means that the patent office didn't understand the patent owner to... I don't think that undermines the position that

[00:20:14] Speaker 00:
Pat office didn't understand you to be arguing that there were specific limitations missing.

[00:20:19] Speaker 00:
Because all those claims should be read to include the limitations of claim one.

[00:20:23] Speaker 03:
Well, they should be.

[00:20:25] Speaker 00:
But if they are... Was the argument made below that there were limitations missing from claim one?

[00:20:31] Speaker 03:
The argument made below was that neither of these two references teaches of reliance on artifact correction and the absorption detection.

[00:20:42] Speaker 03:
We made that argument repeatedly.

[00:20:43] Speaker 06:
We're way beyond the time, so we'll restore two minutes.

[00:20:46] Speaker 06:
Let's hear from the other side.

[00:20:47] Speaker 06:
Thank you.

[00:20:59] Speaker 02:
Good morning.

[00:21:04] Speaker 02:
Your Honors, if it would please the Court, I'm Steve Helburn.

[00:21:07] Speaker 02:
I'm here on behalf of Hayward Industries.

[00:21:09] Speaker 02:
I planned a few things to say, but maybe first I could

[00:21:13] Speaker 02:
address some of the things that just came up.

[00:21:16] Speaker 02:
Technically speaking, determining a power factor is part of the specification of the 600 patent, because it's original claim language that was included on the filing day of the 600 patent.

[00:21:30] Speaker 02:
But it's not part of the parent, because it wasn't there.

[00:21:32] Speaker 02:
Regarding the difference between determining and determining whether, they both mean figuring out.

[00:21:38] Speaker 02:
The word weather means your answer is Boolean.

[00:21:40] Speaker 02:
You're looking for something that's true or false.

[00:21:42] Speaker 02:
We're still figuring something out.

[00:21:43] Speaker 02:
It's just black or white.

[00:21:46] Speaker 02:
Regarding whether or not we proved that all of the elements are there, which is something they didn't really raise until their reply brief at Section 42.

[00:21:58] Speaker 02:
We did that in our third-party comments.

[00:22:01] Speaker 02:
That's at APPX 10-410 to 10-420, which was incorporated by reference by the letter of appeal notice at 11-702 to 11-704.

[00:22:11] Speaker 02:
They did consider all of the limitations.

[00:22:16] Speaker 02:
And regarding this idea that we always cited like one sentence of our expert in reliance on putting the references together, he's probably referring to paragraph 64 of the declaration of Professor Amati.

[00:22:31] Speaker 02:
That's like a conclusion paragraph.

[00:22:34] Speaker 02:
It's like the tip of the iceberg.

[00:22:36] Speaker 02:
It's like the collection of everything that came before it in the declaration.

[00:22:42] Speaker 02:
that paragraph 33 and 39 talks about the modularity of rectifier designs.

[00:22:47] Speaker 02:
If you have a system like in molar, we have a rectifier and foreign object obstruction detection.

[00:22:54] Speaker 02:
There's another rectifier that's a better rectifier, a power factor correction rectifier.

[00:22:58] Speaker 02:
This is modular, you can put them together, and that's at APP 10434 to 35.

[00:23:03] Speaker 02:
Professor Amati also talks at paragraph 34, which is APP 10454.

[00:23:08] Speaker 02:
This idea that if your power factor is low,

[00:23:12] Speaker 02:
The utility is to see that to get the same power, you have to draw a lot more current.

[00:23:18] Speaker 02:
Because in AC power, power factor times voltage times current is the power.

[00:23:23] Speaker 02:
So if you have a low number for the power factor, you have to draw a high number of the current to get the same amount of power.

[00:23:29] Speaker 02:
And that's discussed in paragraph 34 of Ahmadi's declaration of 104.54.

[00:23:34] Speaker 02:
Their own expert, Professor Collins at paragraph 90, OPP 9701, said that power factor correction is highly desirable.

[00:23:41] Speaker 02:
And that when you have the highest power factor, which is 1, because power factor is between 0 and 1, it's called unity, but it's also called the perfect power factor.

[00:23:50] Speaker 02:
So this allegation that they merely relied on one sentence is just false.

[00:23:59] Speaker 02:
And the fact that there are incentives to save energy and save the money that comes with the energy is a totally proper rationale for combining references.

[00:24:13] Speaker 02:
and you're going to put in a bolt in its place.

[00:24:16] Speaker 02:
And there's plenty on the record talking about the modularity of that specific design.

[00:24:20] Speaker 02:
So what I would do is, there are a few things I was going to talk about.

[00:24:26] Speaker 04:
Run that modularity point through once more, please, and bolts.

[00:24:30] Speaker 02:
OK.

[00:24:31] Speaker 02:
In a system, think about.

[00:24:32] Speaker 02:
I'll tell you how it works.

[00:24:35] Speaker 02:
OK.

[00:24:36] Speaker 02:
In a system that goes AC to DC, and DC,

[00:24:41] Speaker 02:
and then DC to AC.

[00:24:42] Speaker 02:
So you have three segments, right?

[00:24:44] Speaker 02:
AC to DC, then DC, then DC to AC.

[00:24:48] Speaker 02:
You have like two nodes on that bridge right there, right?

[00:24:52] Speaker 02:
AC power from the grid comes, and then it turns into DC current.

[00:24:55] Speaker 02:
That's where all the magic and the intelligence happens.

[00:24:58] Speaker 02:
And then the DC gets turned back to AC and gets sent to the motor.

[00:25:01] Speaker 02:
The motor in this case is called the DC brushless motor, but that's a misnomer.

[00:25:05] Speaker 02:
It's an AC motor, all right?

[00:25:06] Speaker 02:
So that piece that you have at the front end is called the rectifier.

[00:25:10] Speaker 02:
The piece on the back end is called an inverter.

[00:25:15] Speaker 02:
In Danfoss, in the molar reference, you might see different names used, but that's because it came out of Europe and they have different names for those parts there.

[00:25:24] Speaker 02:
The equation for power depends on where you are.

[00:25:28] Speaker 02:
If you're looking at a fluid system, you might define power by using variables like how fast is the water moving, what kind of water, what's moving.

[00:25:35] Speaker 02:
If you're looking at mechanical power,

[00:25:38] Speaker 02:
You might look at how fast is this thing spinning around?

[00:25:41] Speaker 02:
But when you're looking at electricity, the way you figure out power, well, it depends.

[00:25:46] Speaker 02:
Where are you in the circuit?

[00:25:48] Speaker 02:
If you're at a DC point in the circuit, it's voltage times current.

[00:25:53] Speaker 02:
If you're at an AC point in the circuit, the way you figure out the power factor is you do the voltage times the current times the power factor.

[00:26:00] Speaker 02:
Power factor's between zero and one, so you'll get a number that's lower.

[00:26:05] Speaker 02:
And this kind of gets to, you know,

[00:26:08] Speaker 02:
This wasn't part of what I was going to talk about because it's pretty detailed stuff, but their sole explanation for why they have priority and their burdens, this is their rebuttal to everything we've shown, is that by having the power factor correction, they've reduced the three variable equation to a two variable equation.

[00:26:29] Speaker 02:
Totally false because the equation would have been two variables anyway because all of their decision making is on the

[00:26:36] Speaker 02:
DC side of the circuit, or power factor, wouldn't even be something you look at when you're trying to calculate power.

[00:26:43] Speaker 04:
You've got to remember, modularity, I thought you were making a point as a second issue for the reason to combine the references.

[00:26:51] Speaker 04:
It is, and it's actually cited.

[00:26:52] Speaker 02:
That's what I don't understand about this.

[00:26:54] Speaker 02:
It's cited.

[00:26:54] Speaker 04:
You said doing bolts, it's easier somehow.

[00:26:57] Speaker 02:
It's the swap of the bolts and nuts.

[00:27:00] Speaker 02:
It's totally within the design.

[00:27:02] Speaker 04:
What's modular?

[00:27:04] Speaker 04:
What is the?

[00:27:04] Speaker 02:
Modular, instead of using a rectifier that doesn't have power factor correction, which there's plenty of them, you can use a rectifier that does have power factor correction.

[00:27:16] Speaker 02:
And that's what we've been calling it.

[00:27:17] Speaker 04:
So one of the reasons to combine would be because it's real easy to do it.

[00:27:21] Speaker 04:
Is that what you're trying to tell me?

[00:27:24] Speaker 02:
Well, I don't know if the right word is easy, but I know

[00:27:29] Speaker 04:
Well, how modular means, I mean, that this can connect up to this, simplified by both.

[00:27:37] Speaker 02:
Exactly.

[00:27:38] Speaker 02:
I mean, the rectifier is part of the power supply, which is also in paragraph 33 and 39 of the declaration, where he talks about, Molly talks about, you can use this.

[00:27:49] Speaker 02:
And this is the thing, that the board is citing paragraph 64 of the Molly declaration.

[00:27:55] Speaker 02:
It talks about two things.

[00:27:56] Speaker 02:
It talks about the modularity of rectifier design,

[00:27:59] Speaker 02:
And it talks about the incentives of using a rectifier that has power.

[00:28:03] Speaker 04:
What about their expert?

[00:28:04] Speaker 04:
Didn't their expert testify that this would be costly, that there were cost considerations that might interfere with the motivation to combine?

[00:28:12] Speaker 02:
I'm happy you asked that, because I need to clear that up.

[00:28:16] Speaker 02:
He might have, in evidence that they petitioned five times to have entered, that was refused entry, that nevertheless is still in the joint appendix,

[00:28:27] Speaker 02:
And nevertheless, they cited you to this court.

[00:28:30] Speaker 00:
Is that page JJ9698?

[00:28:34] Speaker 02:
That is 11802 to 12048.

[00:28:38] Speaker 02:
Four to six times, depending on how you count.

[00:28:44] Speaker 02:
They put in Wagner and Moller, right?

[00:28:46] Speaker 02:
And I'm sorry, they put in claims five through 36.

[00:28:50] Speaker 02:
And we put in this explanation as to why it's just unpatentable.

[00:28:57] Speaker 02:
We show them the two references.

[00:28:59] Speaker 02:
They tried to get in a response after ACP, an expert declaration, and three more declarations of other folks as well.

[00:29:08] Speaker 02:
They call them the second declarations.

[00:29:10] Speaker 02:
There's denied entry, four to six times, depending on how you count this, over and over and over again, they try to get it in.

[00:29:16] Speaker 02:
They included all that stuff they tried to get in as an appendix to one of the petitions to get it in.

[00:29:23] Speaker 02:
What they've done is they've included in this joint appendix

[00:29:26] Speaker 02:
that petition to get it in that was denied, and included all of the evidence that was denied.

[00:29:32] Speaker 04:
So when people are reviewing these bindings... Are you telling me that the evidence that I read, that what I read in the briefs, that there was one counter to combining, that is to say because it was costly and expensive, that that is not evidence?

[00:29:46] Speaker 02:
Rejected entry four to six times.

[00:29:49] Speaker 02:
11802 to 12048.

[00:29:52] Speaker 02:
And on page 25 to 35 of their appeal brief to the court... Wasn't that a... Did you complain specifically about that in your brief?

[00:30:03] Speaker 04:
I don't recall in your brief you telling me that, as you're saying now, it's preposterous for them to contend... I can't remember if they... I don't think that we did.

[00:30:15] Speaker 02:
But I also know that when I was looking at page 25 and 35 of their appeal brief to this court,

[00:30:20] Speaker 02:
They were actually citing to those papers, not in a procedural context, but in a substantive context.

[00:30:26] Speaker 04:
No, I said one of their arguments against combining is to say, well, sure, you've got some of this stuff, a lot of efficiencies.

[00:30:34] Speaker 04:
Well, we've got cost.

[00:30:35] Speaker 04:
We put that in an equation.

[00:30:37] Speaker 02:
Well, Your Honor, that's what all those papers say.

[00:30:39] Speaker 02:
But on page 25 and 35 of their brief, they're citing to those papers for instruction of what the term means.

[00:30:46] Speaker 02:
And they say to this court that that's what the board said.

[00:30:50] Speaker 02:
So I'm bringing this up just so you're aware of the sources.

[00:30:55] Speaker 04:
Why are you making a very serious charge?

[00:30:57] Speaker 02:
I'm not making a charge.

[00:30:58] Speaker 02:
I just want pages 11802 to 12048.

[00:31:02] Speaker 02:
I'm not implying this court would ever make a mistake, but I don't want somebody somewhere when they're reading those pages to inadvertently think that those pages were actually part of the record below.

[00:31:14] Speaker 02:
There are appendices to a petition to have those papers entered, a petition which was denied

[00:31:20] Speaker 02:
along with four or six other petitions that were denied.

[00:31:23] Speaker 02:
I just want the decision to be based on me.

[00:31:27] Speaker 04:
Well, Mr. Crushing will have an opportunity to respond to this.

[00:31:30] Speaker 04:
Sure.

[00:31:31] Speaker 02:
So turn to, well, I'm prepared, if I might.

[00:31:37] Speaker 06:
Well, can you just finish that point, though?

[00:31:39] Speaker 06:
I mean, if we're just looking at it, I know you cited other portions of the record, but we're just looking at what the board cited, which was paragraph 64 of the Amati Declaration.

[00:31:50] Speaker 06:
So they talk about one sentence.

[00:31:54] Speaker 06:
I guess the one sentence includes financial and energy incentives.

[00:31:58] Speaker 06:
And they're using what you now say they shouldn't use, which is, well, there's costs on the other side of the equation.

[00:32:05] Speaker 06:
Why, with or without costs, is this sufficient?

[00:32:08] Speaker 02:
Well, with or without costs.

[00:32:10] Speaker 02:
I mean, NPP 2143, post-KSR, talks about whether or not there are powerful incentives within the same field of endeavor.

[00:32:19] Speaker 02:
for putting two references together.

[00:32:21] Speaker 02:
And when you have one reference, such as Moller, that is teaching AC to DC to AC with a rectifier, and they've got the functionality on it, the foreign object obstruction functionality, and you've got Wagner, which has a power factor correction rectifier on a similar circuit topology for a variable speed motor, and Franklin Electric's people know its pump.

[00:32:47] Speaker 02:
You know, it's modular.

[00:32:50] Speaker 02:
You can use that rectifier for this rectifier, number one.

[00:32:54] Speaker 02:
And number two, there's this powerful design incentive to actually use it by virtue of the energy savings.

[00:33:00] Speaker 02:
You're going to draw less current from the grid to get the same amount of power.

[00:33:07] Speaker 02:
And that's, again, I provided the citations earlier, discussed by their expert.

[00:33:14] Speaker 02:
That's also corroborated by the ex parte file history, this idea of drawing more current if the power factor is low.

[00:33:22] Speaker 00:
What is the JA site for that?

[00:33:24] Speaker 02:
That is the app 19041 to 19042, which to me, what happened in the file history at that moment is very powerful and further supports the conclusion that determining includes figuring out its scope.

[00:33:40] Speaker 02:
On October 8, 2010, during the ex parte prosecution,

[00:33:44] Speaker 02:
They were characterizing the claimed invention, the same claim that we have today.

[00:33:49] Speaker 02:
And this wasn't metaphorical.

[00:33:51] Speaker 02:
They actually talked about the claimed invention.

[00:33:54] Speaker 02:
What they said here is a particular motor might have low and variable power factor.

[00:33:59] Speaker 02:
And as a result, it might draw more current than a load with a higher power factor.

[00:34:04] Speaker 02:
If the low power factor is not considered, all conditions will be determined too often, resulting in the pump being shut down unnecessarily.

[00:34:13] Speaker 02:
This is what they said.

[00:34:14] Speaker 02:
This results in a significant difference between the claimed invention of determining the power factor of the pump motor versus the prior teaching where the power factor is not considered.

[00:34:26] Speaker 02:
So considered, figured out, calculating, very clearly talking about a system here that considers power factor.

[00:34:33] Speaker 02:
And you know that that power factor might be low and variable.

[00:34:38] Speaker 02:
If you have a system with a power factor that's low and variable,

[00:34:41] Speaker 02:
You're talking about an example where you don't have power factor correction.

[00:34:45] Speaker 02:
The whole purpose of having power factor correction is that you have this high number that's constant.

[00:34:52] Speaker 02:
They're basically characterizing the intervention as dealing with an example where you've got low variable power factor, and the power factor's going to be considered.

[00:35:01] Speaker 02:
Another support for this is how engineers are going to understand these claims.

[00:35:06] Speaker 02:
And Professor Amati testified in paragraph 54, section 1,

[00:35:11] Speaker 02:
When we first read these claims, he thought that they covered a line system and that he still thinks that they do today when he signed his declaration.

[00:35:20] Speaker 02:
You know, you have current, you have voltage.

[00:35:22] Speaker 02:
You look at the space between on the oscilloscope, that's how you figure out your power factor.

[00:35:27] Speaker 02:
And you know what, if you want to know if there's an obstruction, what do you do?

[00:35:30] Speaker 02:
You look at those three values and you compare that against the threshold.

[00:35:34] Speaker 02:
There's a very, very natural alignment that engineers understand

[00:35:38] Speaker 02:
This language just goes right with the claim, which is figuring out the power factor.

[00:35:43] Speaker 02:
Not to mention, if you look at Melbourne, not in its capacity as a prior art, this dispute whether it's a prior art, but its capacity as a contemporaneous reference that's probative of the understandings of one ordinary skill.

[00:35:54] Speaker 02:
And if you look at paragraph 27, the claim reads like a stencil on this paragraph of Melbourne.

[00:36:02] Speaker 02:
Determining the power factor is being used to figure out the power factor from the voltage and the current.

[00:36:08] Speaker 02:
My time is up.

[00:36:11] Speaker 02:
I know that he had a few extra minutes.

[00:36:14] Speaker 02:
Would it be?

[00:36:15] Speaker 02:
Was there an important thought that you want to conclude with?

[00:36:23] Speaker 02:
Just give the court an opportunity for any last question.

[00:36:28] Speaker 02:
Thank you.

[00:36:48] Speaker 04:
Mr. Halpern says we shouldn't pay any attention to the parts of your brief where you're talking about the motivation to combine the negative effect of increased costs and whatnot.

[00:37:01] Speaker 04:
You heard what he was saying we were talking about?

[00:37:05] Speaker 04:
He says that there's a big chunk of what's in the appendix we ought to ignore.

[00:37:09] Speaker 03:
There is a chunk in the appendix that is properly ignored.

[00:37:13] Speaker 03:
It was apparently included.

[00:37:15] Speaker 03:
I didn't even know it was there until just this moment.

[00:37:18] Speaker 03:
We already had that issue about the appendix and we were preparing it.

[00:37:24] Speaker 04:
Part of your declaration that talked about increased cost, you know what I'm talking about?

[00:37:31] Speaker 03:
Yes, your honor.

[00:37:32] Speaker 04:
Is that in the record or not in the record?

[00:37:37] Speaker 03:
The increased cost is in the record.

[00:37:40] Speaker 04:
I didn't bring the stack with me.

[00:37:42] Speaker 04:
There's a paragraph in your expert's declaration in which he talks about

[00:37:48] Speaker 04:
the fact that there would be increased costs if you were making this combination.

[00:37:53] Speaker 03:
If that is in the declaration that was not entered, then... I'm asking you.

[00:37:57] Speaker 04:
What?

[00:37:58] Speaker 04:
We have... You made an argument in your brief.

[00:38:02] Speaker 04:
In our briefs.

[00:38:04] Speaker 04:
Yes.

[00:38:04] Speaker 04:
And your brief depends upon that expert's statement being in record.

[00:38:08] Speaker 03:
Oh, the brief didn't depend on it.

[00:38:10] Speaker 03:
It didn't cite to it.

[00:38:11] Speaker 05:
You're saying that your brief was solely based on attorney argument?

[00:38:16] Speaker 05:
No, that one argument about increased costs, yes, Your Honor.

[00:38:20] Speaker 05:
Is solely attorney argument?

[00:38:22] Speaker 05:
Well, it's common sense, Your Honor.

[00:38:24] Speaker 04:
Well, then just stick with it.

[00:38:25] Speaker 04:
We're trying to find out whether or not that particular... We have a declaration that's in the record.

[00:38:33] Speaker 00:
Can you get the site for that, just for clarity in the record, so we know which part is not?

[00:38:38] Speaker 04:
Appendix 9698.

[00:38:40] Speaker 04:
9698.

[00:38:42] Speaker 00:
That's where it starts, or is it just that page?

[00:38:44] Speaker 03:
That page, the last part of paragraph 80 of our expert's declaration that was entered

[00:38:52] Speaker 03:
says, these PFC rectifiers add additional cost and complexity and are generally not needed to meet any utility standards regarding power factor correction, et cetera.

[00:39:01] Speaker 00:
And that was not admitted below.

[00:39:03] Speaker 00:
It's not part of the record.

[00:39:04] Speaker 00:
That is in the record.

[00:39:05] Speaker 00:
OK.

[00:39:06] Speaker 00:
I'm sorry.

[00:39:06] Speaker 00:
That is.

[00:39:07] Speaker 00:
Can you tell me what is not in the record?

[00:39:09] Speaker 00:
What is the declaration?

[00:39:11] Speaker 03:
The only thing that is cited to in our briefs from the thing that shouldn't be in the record, and I didn't actually realize it was there, is

[00:39:22] Speaker 03:
We cite to a dictionary definition that was submitted as an attachment to a response that wasn't entered.

[00:39:33] Speaker 03:
And it doesn't say anything about cost and complexity.

[00:39:37] Speaker 00:
Can you tell me what page in the record you're talking about?

[00:39:49] Speaker 03:
He referred to page 25 of our brief that looks at the dictionary definitions of from Mary Webster.

[00:40:01] Speaker 03:
And it cites to a copy of that that was downloaded off the internet.

[00:40:08] Speaker 03:
And it was attached as an exhibit to a response that was filed at Boston Energy.

[00:40:16] Speaker 00:
and say a page on that.

[00:40:17] Speaker 00:
I mean, I can look at page 25, but since you're looking at it right now.

[00:40:20] Speaker 00:
Which page do you want, the appendix page?

[00:40:23] Speaker 03:
The appendix page.

[00:40:24] Speaker 03:
The appendix page is 11829.

[00:40:26] Speaker 00:
And then on page A9698, I've read that declaration of Mr. Collins.

[00:40:35] Speaker 00:
I understand that is talking about increased costs, but that's not talking.

[00:40:40] Speaker 00:
Am I correct in understanding that that paragraph there is not talking about the

[00:40:45] Speaker 00:
combination of the two particular references the board was considering, right?

[00:40:52] Speaker 03:
That combination was first proposed by the examiner and the ACP, and we were never permitted to respond to that.

[00:40:58] Speaker 03:
Okay, so this is just a general comment.

[00:40:59] Speaker 03:
There's nothing in the record where we actually respond specifically to Wagner-Muller.

[00:41:04] Speaker 06:
But for clarity purposes, just because I remain a little confused, can you buy Clothes of Business tomorrow, just provide us with

[00:41:14] Speaker 06:
Two sentences, three sentences, identifying what is included in the appendix and should not be there.

[00:41:20] Speaker 06:
Yes, Your Honor.

[00:41:20] Speaker 06:
Just giving us the paid sides of the appendix that are improperly there.

[00:41:24] Speaker 06:
Yes, Your Honor.

[00:41:27] Speaker 06:
OK.

[00:41:27] Speaker ?:
Thank you.

[00:41:29] Speaker 06:
I think that's it.

[00:41:30] Speaker 06:
You have a final thought?

[00:41:34] Speaker 03:
Your Honor, the issue here really on the client instruction, it cannot be written both ways.

[00:41:44] Speaker 03:
You have to choose one if it can mean black or white, but unless you can think of a way to describe determining to mean the gray or the combination, it's got to mean one or the other.

[00:41:59] Speaker 03:
And we've got below a factual finding from the board that says that fixing, if you read it as fixing, that is supported in the specification.

[00:42:11] Speaker 03:
If you look at that for substantial evidence,

[00:42:14] Speaker 03:
Then we have a finding from below that reading this as fixing is supported.

[00:42:20] Speaker 03:
There is nothing in the record below that says that figuring out is supported by the entire client.

[00:42:27] Speaker 03:
We'll give you reliance on that later.

[00:42:30] Speaker 03:
Okay, thank you.

[00:42:33] Speaker 02:
Thank you very much.

[00:42:40] Speaker 02:
Thank you.

[00:42:44] Speaker 06:
Is this, I don't want to get into engage in a discussion.

[00:42:48] Speaker 06:
Are you talking about clarifying the record for purposes of what is included in the appendix and should not appropriately be there?

[00:42:55] Speaker 06:
Correct, in the citations.

[00:42:57] Speaker 06:
Well, your friend is going to give us those appendix sites.

[00:43:04] Speaker 04:
If you disagree with that.

[00:43:05] Speaker 06:
If you disagree with that, you've got 24 hours afterwards to come in with a contrary view.

[00:43:10] Speaker 06:
In other words, that something's

[00:43:12] Speaker 06:
that he didn't point out should not be there.

[00:43:14] Speaker 06:
We don't want to get into a debate over this.

[00:43:16] Speaker 06:
We just want the appendix sites.

[00:43:20] Speaker 06:
All right.

[00:43:20] Speaker 06:
Thank you.

[00:43:22] Speaker 06:
We thank both sides and the case is submitted.