[00:00:41] Speaker 02: Our last case this morning is Chamberlain Group versus Tectronic Industries et al. [00:00:48] Speaker 02: 2016-27-13. [00:00:48] Speaker 02: Mr. White. [00:01:06] Speaker 01: Good morning, Your Honor. [00:01:06] Speaker 01: May it please the Court. [00:01:08] Speaker 01: The first and primary reason why this court should vacate the public injunction order from the district court is that the district court committed legal error in interpreting the controller limitation. [00:01:19] Speaker 01: It interpreted that controller limitation to be not only a self-aware controller, but it also cannot rely upon any external sensors to obtain status conditions for the garage door opener. [00:01:30] Speaker 01: both of those portions of the construction were legally erroneous. [00:01:34] Speaker 04: When I read the district court opinion, I thought that there was an important ambiguity in the word rely. [00:01:43] Speaker 04: One thing it could mean is it doesn't have to use sensors. [00:01:51] Speaker 04: The other is it must not use sensors. [00:01:55] Speaker 04: Ultimately, I thought the district court actually took the must-not view, and that is subject to the, as far as I can tell, fairly conclusive response that that makes nonsense of claim two. [00:02:07] Speaker 04: But what about the somewhat more modest idea that what claim one requires is the ability to be self-aware, even if you don't have to be self-aware all the time. [00:02:24] Speaker 04: That is, [00:02:25] Speaker 04: the ability to have information you can send to the smartphone that you did not acquire through a sensor? [00:02:30] Speaker 01: I think the first answer to your question is I don't view the district court's order that way and I don't think you can view the order that way. [00:02:39] Speaker 01: When you look at what the district court said it was clear that it was interpreting it that it must not use sensors because it noted a couple points that was the only way to distinguish the prior art. [00:02:53] Speaker 04: We have to construe this [00:02:55] Speaker 04: claim and to figure out whether there is a substantial case of invalidity. [00:03:03] Speaker 04: Why is a construction wrong? [00:03:07] Speaker 04: I will assume for purposes of this question that the district court did not adopt this construction, but why would it be wrong to construe claim one in light of the spec to say the system has to be able to [00:03:25] Speaker 04: send information it did not acquire from sensors off to the smartphone, even if it also can do send information it acquired from sensors. [00:03:33] Speaker 01: Sure. [00:03:33] Speaker 01: I think the simple response to that is that's not what's disclosed in the specification, and that would be contrary to the specification. [00:03:40] Speaker 01: If you look at column four, which is the joint appendix, page 45, starting in line five, there's a long discussion of what the operational status conditions are. [00:03:51] Speaker 01: But important to answering your question is the paragraph that begins on line 52. [00:03:57] Speaker 01: And that's where it goes through and talks about the controller that's being disclosed. [00:04:01] Speaker 01: And it talks about the controller can be or get information about the status conditions in multiple ways. [00:04:09] Speaker 01: It can be self-aware of them, but it can also use external sensors to develop them. [00:04:14] Speaker 01: So if you were to interpret claim one as saying the controller must be self-aware, [00:04:20] Speaker 01: then I think you would eliminate half of what's disclosed in the specification, and the claims would not cover disclosed embodiments. [00:04:27] Speaker 01: So I think it would be wrong on multiple fronts for you to do that. [00:04:29] Speaker 01: It would be contrary to what's in the specification, and it would eliminate certain embodiments that are disclosed. [00:04:35] Speaker 01: So I don't think you can do it for those reasons. [00:04:37] Speaker 03: In other words, when you read the limitation of a controller having a plurality of potential operational status conditions, you read that as meaning as describing a controller that [00:04:50] Speaker 03: that has this information, but the claim doesn't describe how the controller got that information. [00:04:57] Speaker 01: Absolutely. [00:04:57] Speaker 01: There's nothing that says how it obtains it. [00:05:00] Speaker 01: Nothing that talks about sensors. [00:05:02] Speaker 01: Nothing that talks about not using sensors. [00:05:04] Speaker 01: There really is no support at all for the district court's conclusion on either of those points, either that it be self-aware or that it can't use external sensors. [00:05:12] Speaker 01: And again, that's contrary to what's in the specification. [00:05:14] Speaker 01: The specification is clear as there's multiple ways to get information. [00:05:17] Speaker 01: One is using sensors. [00:05:18] Speaker 01: One's not using sensors. [00:05:20] Speaker 01: So if we assume the district court got it wrong on this construction, then I think you have to vacate the Plymouth Injunction Order, because that is the sole and only reason that the district court gave for denying our arguments and our presentation that the claims were invalid. [00:05:38] Speaker 01: If you look at page 10 of the order, that is the one and only reason that the court went against us on our issue of whether we raised this issue. [00:05:46] Speaker 03: The other side in its briefing raises some additional [00:05:50] Speaker 03: limitations that are allegedly not met, disclosed by the prior art reference. [00:05:57] Speaker 03: Were those arguments also raised at the district court, and then the district court just simply zeroed in on this controller limitation? [00:06:05] Speaker 01: There were discussions about other limitations. [00:06:08] Speaker 01: I don't think they rose to the level of the discussion of the controller. [00:06:11] Speaker 01: But the key for this court is, if we look at what the court actually concluded at below, is it was crystal clear that the only reason [00:06:19] Speaker 01: For deciding against us on a substantial question of invalidity was the control limitation. [00:06:23] Speaker 01: So obviously the district court did not rely upon any other arguments. [00:06:27] Speaker 01: The order is not based upon any other arguments. [00:06:30] Speaker 01: So those are really not right for your honor's consideration here. [00:06:33] Speaker 01: We have to deal with the district court's order as it stands, the findings announced there. [00:06:37] Speaker 01: And again, on the issue of the substantial question of invalidity, the only distinction, the only thing [00:06:43] Speaker 01: the court relied upon was the sensory issue. [00:06:46] Speaker 03: I guess the point is we wouldn't be able to conclude here in this court that there is in fact a substantial question of validity if we agreed with you on this one particular claim. [00:06:57] Speaker 03: The best we could do is simply vacate the grounds for the district court relied on or the one ground for concluding that there was not a substantial question of validity. [00:07:07] Speaker 01: I think you could go further because I think from reading the district court's order [00:07:14] Speaker 01: I believe it rejected any other arguments that would have distinguished the claims other than the construction of the controller, as you just asked. [00:07:23] Speaker 03: But if we concluded that the opinion is just simply silent as to these other possible questions, then that would be crowned for vacating. [00:07:31] Speaker 01: I believe that's right, but I think you can go further than that, especially since Chamberlain has, I think, they've tried to say that these arguments were definitely raised. [00:07:40] Speaker 01: If that's true and the court rejected them and relied only on the control limitation, then I think you could go a step farther and say that there is a substantial question of validity that's been raised at this point. [00:07:53] Speaker 01: I think, as we've already discussed, the proper interpretation here is not what the district court did. [00:07:59] Speaker 01: The district court got it wrong for at least two reasons. [00:08:02] Speaker 01: It bates the construction that it came to on an erroneous reading of claim differentiation, as Judge Toronto noted. [00:08:09] Speaker 01: The idea that because Claim 2 talks about a censor, the idea that you cannot then have a censor in Claim 1 is just legally erroneous. [00:08:18] Speaker 01: And the district court also erred in interpreting Claim 1 based on an erroneous view of the prior art. [00:08:23] Speaker 01: The district court tried to interpret how the examiner differentiated the claims from the prior art and adopted a ground that was offered by Chamberlain's expert, but Chamberlain even runs away from that in its briefing and acknowledges that that's not the only distinction. [00:08:37] Speaker 01: that was raised between the claims and the program. [00:08:39] Speaker 03: I'm just curious, how come we didn't get the full office action response in the joint appendix? [00:08:46] Speaker 03: I think we tried to... To go on pair to go get it. [00:08:48] Speaker 03: Then I saw the full arguments that were made and whether or not the district court judge was right and how it understood what had occurred. [00:08:59] Speaker 01: I think we were trying to keep the joint appendix small for you and it was not [00:09:03] Speaker 01: an attempt to keep any information from your honors, it was just to focus on the key arguments there. [00:09:08] Speaker 01: And I would suggest that nothing else in the response would have changed or affected the outcome there. [00:09:14] Speaker 04: Can I ask, on the assumption that the district court misconstrued the claims and that the proper construction of claim one is, as you say, it is completely neutral as to where information comes from, [00:09:34] Speaker 04: Should we or should we not reach the non-merits components of the preliminary injunction standard? [00:09:42] Speaker 04: Because if we don't ourselves say there is a substantial case of invalidity, then it goes back and at least potentially they ask for a preliminary injunction again. [00:09:53] Speaker 04: And then we would not have spoken about the question, is there monetarily uncompensable irreparable harm? [00:10:06] Speaker 01: I think that that's fair, Your Honor, and I think it is proper. [00:10:11] Speaker 01: That was just a question. [00:10:14] Speaker 01: I think you raise a good point. [00:10:15] Speaker 01: What's the most efficient way forward here? [00:10:17] Speaker 01: I think the more guidance that you all can provide to the district court I think would be helpful. [00:10:23] Speaker 01: I think we've seen the district court struggling with some concepts in terms of both irreparable harm and the merits here. [00:10:30] Speaker 01: We even noted, with respect to the second patent that's not subject to this order, that there were some clear [00:10:36] Speaker 01: I think struggles with the district court in understanding basic concepts of direct infringement. [00:10:40] Speaker 01: So I think it is proper. [00:10:43] Speaker 04: Is there a trial now set for May? [00:10:45] Speaker 01: Not yet. [00:10:46] Speaker 01: So the last time we were before the court, the judge was talking about possibly June, having a trial sometime in June, but we do not have a trial date set yet. [00:10:56] Speaker 01: But the other issue that I think Your Honor should be aware of is there is sort of a spinoff of the plenary injunction, which is a contempt proceeding that is pending right now. [00:11:05] Speaker 01: The defendants in this case redesigned the product based upon the preliminary injunction order and released a new redesigned product. [00:11:14] Speaker 01: Chamberlain filed a motion for contempt and we had that hearing last week. [00:11:19] Speaker 01: So the judge heard evidence on the issue and is asked for post trial briefing, which is due at the end of this week. [00:11:26] Speaker 01: And he intends to make some sort of pronouncement in the coming weeks on a contempt issue. [00:11:30] Speaker 01: that is based, what we believe, is on a clearly erroneous foothold here, which is the preliminary injunction order. [00:11:36] Speaker 01: So even though the trial is not set yet, there is some immediacy and some real concern from the defendant's side that we get some sort of resolution of the preliminary injunction order sooner rather than later. [00:11:46] Speaker 01: And we'd appreciate it if Your Honors could do that for us. [00:11:49] Speaker 01: With that, unless there's other questions, I'm going to save what I've got left for rebuttal. [00:11:52] Speaker 02: Thank you, Mr. White. [00:11:53] Speaker 02: We'll save the rest of your time for rebuttal. [00:11:56] Speaker 02: Ms. [00:11:56] Speaker 02: Vidal? [00:12:03] Speaker 00: Thank you, Your Honors. [00:12:05] Speaker 00: May it please the Court. [00:12:06] Speaker 00: I'd like to first address the rely language in the Court's opinion. [00:12:12] Speaker 00: When the Court used the term rely in saying that, and I'm on page seven of the opinion, the appendix at seven, self-aware, i.e., that it did not rely upon any external censors to obtain the status conditions of the GDO, in which it was able to transmit upon request, it was saying that [00:12:33] Speaker 00: The controller itself needs to be self-aware. [00:12:37] Speaker 00: It needs to be aware of its own states and not determine those states based on external sensors. [00:12:45] Speaker 00: And the reason the court used that language is because through a three-day hearing with extensive testimony by experts, the court heard testimony from Dr. Rhine that the first clause in claim one should be accorded its ordinary meaning. [00:13:02] Speaker 00: And if you look at the language of that claim, the language states a controller having, which is possessive, a plurality of potential operating status conditions defined at least in part by a plurality of operating states. [00:13:20] Speaker 00: There was a shorthand used during the trial, during the hearing, that that language referred to self-aware. [00:13:26] Speaker 00: That shorthand comes from the specification itself. [00:13:31] Speaker 00: In column four of the specification, starting at around line 52, the applicant differentiated between information that is obtained by a controller that's self-aware, where the controller is aware of its own conditions from actually obtaining that information from sensors. [00:13:55] Speaker 00: And the reason the applicant did that is because in the background of the patent, [00:13:59] Speaker 00: The applicant talked about the fact that external sensors were known in the art and they caused problems. [00:14:06] Speaker 00: External sensors included extra wiring, extra costs. [00:14:11] Speaker 00: I'm at the bottom of column one and the top of column two. [00:14:14] Speaker 00: Extra installation time. [00:14:17] Speaker 00: And so what the patentee was disclosing in the specification is that there's two ways of doing this. [00:14:25] Speaker 00: You can either be self-aware, aware of your own states, and that's a technical term. [00:14:30] Speaker 00: TEVA can apply here because it's a technical term dealing with state diagrams and being aware of your own states. [00:14:36] Speaker 00: Or you can get information from a sensor that you're passing along. [00:14:41] Speaker 00: And the applicant didn't preclude the idea that the controller would get that other information. [00:14:47] Speaker 00: That's claimed in claims two and three. [00:14:49] Speaker 04: So can you address this problem of claim two being [00:14:54] Speaker 04: dependent on claim one, which under 112D or four or whatever it's called, means that all of the claim one limitations have to be met by claim two. [00:15:07] Speaker 04: For all the world, I don't see how under the district court's view, and I think under the view you're promoting, that's possible because if claim one is limited to self-aware and only self-aware, [00:15:23] Speaker 04: controllers not getting information from sensors, then claim two can't possibly? [00:15:29] Speaker 00: So you're correct that claim one is not limited to that. [00:15:33] Speaker 00: Claim one discusses that the information that the controller is using in claim one is self-aware information. [00:15:40] Speaker 00: That doesn't mean the controller can't also use information from sensors, but that sensor information can't satisfy that limitation of claim one. [00:15:50] Speaker 00: So when the judge says rely, [00:15:52] Speaker 00: The controller can't rely on external sensors to determine its own state. [00:15:57] Speaker 00: But it can both determine its own state, and the controller can pass through information from an external sensor. [00:16:06] Speaker 00: And I think claim three is instructive on that point, because claim two, first of all, claim two does not have any antecedent basis. [00:16:13] Speaker 00: Its claim differentiation is inappropriate. [00:16:16] Speaker 00: It's not modifying anything in claim one. [00:16:19] Speaker 00: It is adding to it. [00:16:20] Speaker 00: So claim two adds sensors. [00:16:23] Speaker 00: Claim three says that the transmitter, which is a box in claim one, can take information from those sensors and send that out. [00:16:31] Speaker 00: So now you've got a transmitter in the upper left-hand side of figure one that can send information from the controller, the self-aware information, and it can also send information from the transmitter. [00:16:46] Speaker 00: So in my view, the proper reading of claims two and three is that [00:16:51] Speaker 00: The applicant understood that you might not get completely away from sensors. [00:16:56] Speaker 00: You might still have some. [00:16:57] Speaker 00: But the invention was about the self-aware controller that monitored its own states, could send that out. [00:17:04] Speaker 00: You might know that it turned on a light. [00:17:06] Speaker 00: It might turn on another light based on the fact that it knows its own state. [00:17:10] Speaker 03: Getting back to the district court's reasoning, I'm looking towards the bottom of page 8. [00:17:16] Speaker 03: Judge concluded that the only reasonable way to reconcile the difference between claim one and claim two is that claim one is choose condition sensors in favor of a controller that does not rely on external sensors. [00:17:30] Speaker 03: So it appears to be understanding claim one is disclaiming condition sensors because it sees claim two claiming condition sensors. [00:17:44] Speaker 00: So none of the testimony from [00:17:46] Speaker 00: CGI relied on that. [00:17:48] Speaker 00: So the judge was hearing three days worth of testimony. [00:17:51] Speaker 00: The testimony was that you can't use that information to satisfy the limitations in claim one. [00:17:57] Speaker 00: So when the judge is making these statements, he's doing it on the backdrop of three days of testimony and extensive testimony from Dr. Rhein, who said that you can indeed have external controllers. [00:18:10] Speaker 00: He called it the Menard approach. [00:18:12] Speaker 00: It's the prior art approach. [00:18:13] Speaker 00: You can have those. [00:18:14] Speaker 00: You can add that into the invention, but you can't use those to satisfy the limitations of claim one. [00:18:20] Speaker 00: So claim one precludes the ability to use that external sensor information to meet the limitation of being self-aware. [00:18:27] Speaker 00: And again, I'm using the shorthand for self-aware. [00:18:31] Speaker 00: Over and over again, we are reinforced to the judge that that is just shorthand. [00:18:37] Speaker 00: It's really the first clause in claim one about the controller having potential status conditions. [00:18:43] Speaker 00: External controllers are not sending potential status conditions defined by states. [00:18:48] Speaker 00: They're sending their states. [00:18:50] Speaker 00: So there's a lot of testimony on this in clear differentiation between a controller who can know the states that it might be in versus a controller receiving an actual state of the garage doors closed from an external sensor. [00:19:05] Speaker 03: Do you agree that the district court shouldn't have relied on [00:19:10] Speaker 03: the prosecution history as a way of understanding the limits to claim one? [00:19:16] Speaker 00: I don't think the prosecution history is overly instructed here. [00:19:19] Speaker 00: I don't think we need to get there because it's not that we're trying to import some limitation into the claim, which in fact, TTI is. [00:19:28] Speaker 00: If you look at their claim construction that they're proposing to the district court now, they're changing all the language. [00:19:33] Speaker 03: So getting back to claim one, we're talking about a self-aware controller. [00:19:38] Speaker 03: I mean, that's how I should interpret that phrase in the first clause of the claim. [00:19:43] Speaker 03: The controller having a plurality of potential operational status conditions, I should kind of in my head translate to being a self-aware controller. [00:19:51] Speaker 00: That's the terminology that Patton uses at column four is shorthand or being aware. [00:19:55] Speaker 03: And so I guess the next question is, how would a self-aware controller accomplish all of these different functions recited in claim five? [00:20:08] Speaker 03: Like, for example, detecting a likely presence of an obstacle to movement of the movable barrier to the garage door. [00:20:18] Speaker 03: I mean, I can understand a self-aware controller in the sense that it already knows that it opened the garage door, so it knows that the next action would be to close the garage door, or the controller already knows that [00:20:34] Speaker 03: it believes it turned on the light so it knows the next action it could take would be to turn that light off. [00:20:40] Speaker 03: And in that sense, it's self-aware. [00:20:43] Speaker 03: But I don't get at all how the controller could detect the presence of an obstacle to movement of the garage door unless it was relying on an external sensor. [00:20:55] Speaker 00: So first, I would say that Tev I Do Believe comes into play on this because the interpretation of whether those could be performed by the controller [00:21:03] Speaker 00: or the sensors, there was testimony on that. [00:21:07] Speaker 00: And Dr. Vine provided testimony on that. [00:21:09] Speaker 00: As to whether the garage door can detect an object, when there is an object, the garage door, which is starting to close, will reverse direction. [00:21:20] Speaker 00: So the garage door knows, I reverse direction. [00:21:23] Speaker 00: And based on that, it could have logic to know that if it reversed direction, there's a likely presence of something in the way of the garage door. [00:21:30] Speaker 03: But there was a sense to get it to reverse [00:21:34] Speaker 03: the door, it needs to sense a reason to reverse the door, right? [00:21:39] Speaker 03: And that would require a sensor, wouldn't it? [00:21:41] Speaker 00: It does require a sensor. [00:21:42] Speaker 00: There are sensors required by law at the bottom of the door, I believe four to six inches from the bottom of the door, that do detect the presence. [00:21:50] Speaker 00: But what's happening in that claim is that it's not relying on a state set from the external sensor that something is there in order to [00:22:02] Speaker 00: be self-aware. [00:22:03] Speaker 00: It's self-aware because it knows what its motor did. [00:22:06] Speaker 00: And yes, the motor triggered based on that, but the controller itself still has a state diagram and it still knows what it's doing and it can detect the possible presence of an obstruction based on the fact that it reversed direction. [00:22:24] Speaker 03: So you're saying that, assuming my dog is at the base of the garage door, [00:22:30] Speaker 03: and the door is closing, and then there's external sensors that recognize that there's some obstacle, i.e. [00:22:36] Speaker 03: my dog, blocking the bottom of the garage floor, then the external sensors will notify the controller, you know, you need to reverse course. [00:22:48] Speaker 03: And then once the controller is reversing course, you're telling me that that is information that now the controller possesses that it [00:23:00] Speaker 03: now itself is detected the likely presence of an obstacle to the movement of the garage door. [00:23:08] Speaker 03: That's the theory. [00:23:09] Speaker 00: That's correct as to if it's self-aware on that particular element, that is how it would be self-aware. [00:23:15] Speaker 00: And certainly if somebody were to just take the information from the sensor and the controller just sends that right out, that's not meeting the limitation of the claim, of claim one. [00:23:24] Speaker 00: It would have to actually be self-aware as to whatever that item on the list was. [00:23:29] Speaker 00: And again, there was extensive testimony that claimed five that those items in that list, the controller could be self-aware of them. [00:23:39] Speaker 00: It could also be that that information comes from an external controller, in which case that would not satisfy claim five. [00:23:45] Speaker 03: Do you happen to have the site to the extensive testimony on how all of these functions can be performed by a self-aware controller? [00:23:54] Speaker 00: So there was one. [00:23:55] Speaker 00: I'll provide one. [00:23:57] Speaker 00: Let me just pull it here. [00:24:02] Speaker 00: Dr. Ryan was asked a question, in particular, and I believe this is in the briefing, about a vehicle. [00:24:08] Speaker 03: Right, this is the redirect, right? [00:24:10] Speaker 00: That's correct. [00:24:11] Speaker 00: He was asked about, exactly. [00:24:12] Speaker 03: He was asked- 6144 to 45? [00:24:13] Speaker 03: 6144 to 45. [00:24:16] Speaker 00: OK. [00:24:18] Speaker 00: That's correct. [00:24:20] Speaker 00: Where he initially testified on direct, because he was asked just off the top of his head, did he know of a way of doing this? [00:24:28] Speaker 00: Did he know of a way of detecting a vehicle's presence [00:24:31] Speaker 00: in close proximity to the garage without a sensor. [00:24:35] Speaker 00: And he said, I can't think of one. [00:24:37] Speaker 00: And then when he was asked about HomeLink, which is Chamberlain technology that's in the garage door, the buttons that you have in your car, that's all originated from Chamberlain. [00:24:47] Speaker 00: When he was asked about that, then he recognized that, yes, you can detect the presence based on the fact that your signal came from HomeLink. [00:24:55] Speaker 00: That's not a sensor. [00:24:56] Speaker 00: That's control data. [00:24:58] Speaker 00: But that was an example that he gave that he could come up with. [00:25:02] Speaker 00: And this particular claim five was not, and I may have overstated when I said extensive testimony, there was testimony on this. [00:25:10] Speaker 00: It was challenged. [00:25:12] Speaker 00: At some point, TTI stopped challenging the expert on that point, but there was testimony on this. [00:25:19] Speaker 03: Have your prices to Home Depot or anyone else gone down since the infringement here? [00:25:26] Speaker 03: I know Home Depot's retail prices fluctuated in terms of your sales prices to Home Depot. [00:25:36] Speaker 00: Yes, we've had to offer rebates. [00:25:38] Speaker 03: So the price of the... But then you stopped giving rebates. [00:25:42] Speaker 00: Well, then we were in negotiations at the time of the preliminary injunction hearing. [00:25:45] Speaker 00: So TTI was under pressure to give more rebates by Home Depot. [00:25:49] Speaker 00: When we had the hearing, they were in the midst of negotiations with Home Depot. [00:25:52] Speaker 00: They have subsequently offered [00:25:54] Speaker 00: rebates since then. [00:25:56] Speaker 00: It's not in the record because it wasn't part of the PI hearing. [00:25:59] Speaker 00: And the price has maintained at the same level of $244. [00:26:03] Speaker 00: So now the $268 model has been repressed in price this entire time. [00:26:08] Speaker 00: You can go on the website and look. [00:26:09] Speaker 00: It's still $244, the price below the Ryobi model. [00:26:18] Speaker 02: Unless there are further questions. [00:26:19] Speaker 02: That'll be fine. [00:26:21] Speaker 02: Thank you, Ms. [00:26:21] Speaker 02: Vidal. [00:26:22] Speaker 02: Thank you, Your Honors. [00:26:24] Speaker 02: Mr. White has [00:26:25] Speaker 02: Four minutes left for rebuttal. [00:26:29] Speaker 01: Thank you, Your Honor, and I'll try to be brief. [00:26:32] Speaker 01: On this notion of the court using self-aware as a shorthand for something else, that was an issue that was never raised, never argued below, and you won't find that anywhere in the order. [00:26:42] Speaker 01: That's a new argument we heard from Chamberlain only in these proceedings in the briefs, and I suggest there's just no evidence to support that at all. [00:26:49] Speaker 01: This idea that external sensors were denigrated in the patent, that also is false. [00:26:54] Speaker 01: External sensors were embraced in the patent. [00:26:56] Speaker 01: We read it in column four. [00:26:58] Speaker 01: You see it in the claims. [00:27:00] Speaker 01: For them to claim external sensors and say they're somehow denigrated flies in the face of what's in the claim language directly. [00:27:07] Speaker 01: The self-aware controller, as Judge Chen, you pointed out, if you adopt the construction, it renders claim five inoperable. [00:27:14] Speaker 01: That cannot possibly be the right construction here. [00:27:18] Speaker 04: You also heard Chamberlain suggest that... So far, in what you're saying now, you have not [00:27:24] Speaker 04: said anything that's a reason to reject the construction under which it has to have the ability to, and I don't have any trouble at all using the term self-aware as a complete shorthand for the notion about where the information that's being sent to the smartphone is coming from. [00:27:47] Speaker 04: As long as it has that ability, it can have anything else you want. [00:27:50] Speaker 04: So claim five would be consistent. [00:27:52] Speaker 04: Claim two would be consistent. [00:27:54] Speaker 04: What is wrong with the claim construction that says it has to have this ability? [00:27:58] Speaker 04: That's actually pretty key to our invention. [00:28:00] Speaker 04: It can have all the other bells and whistles, but it's got to have that. [00:28:03] Speaker 01: Again, the best thing I could point you to is I think that that would exclude the embodiment that uses sensors for the information. [00:28:10] Speaker 01: If you say it has to be self-aware, then you could never have the scenario where it just relied upon external sensors. [00:28:15] Speaker 01: And so I think you'd be eliminating one of the two embodiments expressly disclosed in column four. [00:28:21] Speaker 01: The other thing that I would point is one of the arguments you heard is that [00:28:24] Speaker 01: Chamberlain never suggested that claims one and two were sort of mutually exclusive, that they somehow can work together. [00:28:30] Speaker 01: But I think Chamberlain, and we put this in our reply brief, bears some responsibility here for this confusion, because if you look on their briefing, and this is at the joint appendix 3091, we have a statement from them. [00:28:44] Speaker 01: This is from Chamberlain's brief that says, the 275 patents claim one recites the first scenario, referring back to that column four, the first scenario where the controller is self-aware. [00:28:55] Speaker 01: And the 275 patents claim two corresponds to the second scenario by reciting and relying upon external sensors. [00:29:03] Speaker 01: So they were the one that tried to drive this wedge between claim one and claim two and really introduced this confusion into the proceedings and into the judge's order. [00:29:12] Speaker 04: If the claim were to be construed in the way that I keep talking about, what is the best prior art that raises a substantial question of validity? [00:29:21] Speaker 01: I think both Menard and Tizumi. [00:29:24] Speaker 01: So we've explained in both briefs that they do show a self-aware controller. [00:29:29] Speaker 01: They are aware of information that's not derived from external sensors. [00:29:33] Speaker 01: And because of that, we think that that would meet even if you require a self-aware controller, that both of those pieces of prior would show that. [00:29:41] Speaker 01: One last piece I want to touch on just briefly is we also raised the issue of the insubstantial or insignificant findings on irreparable harm. [00:29:47] Speaker 01: You've touched on a couple of pieces of that. [00:29:49] Speaker 01: I've got less than a minute left, so I'm not going to go into detail on that. [00:29:52] Speaker 01: But we believe, for the reasons stated in our briefs, that is a separate, independent basis for you to vacate the Plummerian Junction on just that ground alone.