[00:00:04] Speaker 01:
The next case for argument is 16-2015, Tomita Technologies versus Nintendo.

[00:00:53] Speaker 03:
May I please report?

[00:00:55] Speaker 03:
Ian DiBernardo on behalf of the comments team.

[00:00:58] Speaker 03:
The district court violated Supreme Court and this court's precedent by creating its own standard for equivalence and that conflated function way result within substantial differences and by considering enhanced features of the accused 3DS that had nothing to do with the patent and nothing to do with the presided function at issue.

[00:01:20] Speaker 03:
These legal errors, although not the only ones,

[00:01:23] Speaker 03:
fire reversal, so I'll start there.

[00:01:26] Speaker 00:
I'm going to start here.

[00:01:27] Speaker 00:
On page 32 of the opening brief, you contend the district court found that, quote, software implementation essentially could never be equivalent to a hardware implementation and that that finding conflicts with overhead door.

[00:01:46] Speaker 00:
And the athletes observed that the passage you quote from overhead door

[00:01:52] Speaker 00:
involves witness testimony is not a holding of our court.

[00:01:57] Speaker 00:
You don't respond to that in your reply, so I'd like to give you a chance to.

[00:02:02] Speaker 03:
I believe you do actually respond to that, Your Honor, in that the court actually does acknowledge.

[00:02:08] Speaker 00:
No, you cite other aspects of overhead door in your reply at page seven.

[00:02:17] Speaker 03:
I think in both overhead door and interactive pictures,

[00:02:21] Speaker 03:
it's clear that this court has acknowledged that hardware and software can be interchangeable.

[00:02:27] Speaker 03:
And what the district court did was apply the wave prong from function where results to trump evidence of known interchangeability.

[00:02:38] Speaker 03:
The court here made findings that the disclosed structure in the patent and the accused structure in the 3DS were both known to perform the recited function

[00:02:50] Speaker 03:
of horizontally offsetting.

[00:02:52] Speaker 03:
The court made that finding and found that they were substitutable.

[00:02:57] Speaker 03:
That's Appendix Pages 7 and 17.

[00:02:59] Speaker 03:
But then it went on to disregard its own factual findings.

[00:03:04] Speaker 03:
How?

[00:03:05] Speaker 03:
Because it adopted Nintendo's U.L.

[00:03:08] Speaker 03:
law.

[00:03:09] Speaker 03:
The court applied the following standard, and that is

[00:03:18] Speaker 03:
because I want to get this right.

[00:03:20] Speaker 03:
It's important.

[00:03:22] Speaker 03:
The court applied the standard that if two structures known to perform the same function- Do you want to give us a page number?

[00:03:30] Speaker 01:
I'm sorry.

[00:03:34] Speaker ?:
Could you give us a page number in the court?

[00:03:35] Speaker 03:
Page 17 of this decision.

[00:03:36] Speaker 03:
The standard applied by the district court, quote, if two structures known to perform the same function accomplish it significantly differently, i.e.

[00:03:44] Speaker 03:
in a different way, they are not interchangeable.

[00:03:48] Speaker 03:
And that would preclude, for example, this court's finding in the all-site case, where glue and a rivet were found to be equivalents.

[00:03:58] Speaker 03:
They certainly operate in substantially different ways.

[00:04:01] Speaker 03:
And that standard would preclude hardware and software from being found to be equivalent.

[00:04:06] Speaker 03:
They operate in different ways.

[00:04:08] Speaker 03:
But as I said.

[00:04:10] Speaker 02:
Interchangeability strikes me as one of the less useful terms that we use

[00:04:16] Speaker 02:
of the various terms we use to try to explain what the essence of equivalence is.

[00:04:22] Speaker 02:
If you talk about the function of getting from A to B, a bicycle is interchangeable with a motorcycle.

[00:04:30] Speaker 02:
You could use a bicycle, you can get from A to B, you can use a motorcycle and get to A to B, but they're surely not equivalent.

[00:04:37] Speaker 03:
You're absolutely correct, and the case law reflects it.

[00:04:41] Speaker 03:
The difference

[00:04:42] Speaker 03:
is between interchangeability and known interchangeability.

[00:04:45] Speaker 02:
Well, but we know that bicycles and motorcycles are alternative ways of getting from A to B. Let me explain.

[00:04:52] Speaker 03:
The difference is known interchangeability, as applied by the courts, requires objective evidence at the time of the patent, as opposed to litigation-induced testimony regarding similarity.

[00:05:06] Speaker 03:
That's exactly the distinction in Chumanata

[00:05:10] Speaker 03:
The difference is mere testimony of an expert saying, yes, one could be substituted for the other.

[00:05:17] Speaker 03:
That is not what Tamita presented here and not what the district court relied on in making the factual findings.

[00:05:23] Speaker 03:
There is objective evidence at the time of the patent, prior patents, technical references, as well as testimony, that the structure in the 3DS

[00:05:37] Speaker 03:
the structuring of 3DS, the affine transformations in software, and the structuring of the patent, readout, time, control, and hardware were each known to perform the recited function of horizontally offsetting stereoscopic images.

[00:05:52] Speaker 03:
This was just not a litigation-induced testimony.

[00:05:55] Speaker 03:
And that's the distinction in Chumanada.

[00:05:58] Speaker 02:
Why isn't that just reducing the equivalence test to a test of equivalent function?

[00:06:04] Speaker 02:
Assuming knowledge at the time of the patent of the two, such as, assume in my hypothetical, people were aware of bicycles and motorcycles at the time of the patent.

[00:06:18] Speaker 03:
The Supreme Court has relied on non-interchangeability for over 100 years and equated it to... Among various other terms.

[00:06:25] Speaker 02:
I don't think there's been any place in which the court has said this is the only way to look at equivalence.

[00:06:35] Speaker 03:
Not the only way, Your Honor.

[00:06:36] Speaker 02:
In fact, the language that Warner Jenkinson uses, it seems to me, points exactly the opposite direction.

[00:06:43] Speaker 02:
They say, in our view, the particular linguistic framework used is less important than whether the test is probative of the essential inquiry.

[00:06:52] Speaker 02:
Does the accused product or process contain elements identical or equivalent to each claimed element of the patent and invention?

[00:06:58] Speaker 02:
And that's by way of saying there are various ways to express this notion of equivalence.

[00:07:04] Speaker 02:
Interchangeability can be helpful in some situations, but it isn't the be-all and the end-all of equivalence, right?

[00:07:11] Speaker 03:
Well, I think it's more than just helpful.

[00:07:13] Speaker 03:
It's potent.

[00:07:14] Speaker 03:
And the reason is, when you have objective evidence, as we had here, of known interchangeability, that reflects the view of a person of ordinary skill in the art at the time of a patent that they would know one structure, considering all the differences in way,

[00:07:34] Speaker 03:
could be used for the same function and interchangeable with the other structure.

[00:07:40] Speaker 03:
The knowledge of someone of skill in the art, as reflected in the prior documents we cited and the court relied upon, subsumes any difference in way.

[00:07:51] Speaker 03:
To someone of ordinary skill in the art, that objective evidence shows that they considered the software-based affine transformations and the hardware-based readout time and control

[00:08:04] Speaker 03:
to be equivalent, despite one being in hardware and one being in software.

[00:08:09] Speaker 03:
That's why the Supreme Court has equated equivalents with objective known interchangeability.

[00:08:15] Speaker 03:
And that, again, was the distinction in Chumanada.

[00:08:18] Speaker 03:
Mere testimony.

[00:08:19] Speaker 03:
There was no evidence in Chumanada of known interchangeability.

[00:08:24] Speaker 03:
And that was obscured below and lost on the district court.

[00:08:30] Speaker 03:
And that's how they got to this erroneous standard of elevating

[00:08:33] Speaker 03:
the way prompt to completely vitiate this potent evidence of known interchangeability.

[00:08:40] Speaker 00:
Did you argue to the district court that it had to assess equivalency based on the SD card mode of operation?

[00:08:48] Speaker 03:
We absolutely did, Your Honor.

[00:08:50] Speaker 00:
Where's that in the record?

[00:08:56] Speaker 03:
Oh, in the record, sorry.

[00:09:01] Speaker 00:
I know where it is in the brief.

[00:09:08] Speaker 03:
So for example, Your Honor.

[00:09:24] Speaker 03:
So in the record, for example, and this is telling.

[00:09:30] Speaker 03:
I'll give you the cipher and then explain it.

[00:09:32] Speaker 03:
Appendix 5302-03, for example.

[00:09:36] Speaker 03:
So the SD card mode is relevant

[00:09:38] Speaker 03:
for two bases.

[00:09:41] Speaker 00:
First, it's... What line are you on?

[00:09:45] Speaker 00:
5302, correct?

[00:09:45] Speaker 00:
Yes, 5302.

[00:09:46] Speaker 00:
5302?

[00:09:46] Speaker 00:
5302.

[00:10:03] Speaker 03:
And it extends to the next page.

[00:10:06] Speaker 03:
And the point being discussed here,

[00:10:08] Speaker 00:
is that... What line are you on?

[00:10:11] Speaker 03:
Sorry.

[00:10:13] Speaker 03:
Starting line 17, 5302.

[00:10:19] Speaker 03:
Okay.

[00:10:19] Speaker 03:
Go ahead.

[00:10:31] Speaker 03:
And so the point being discussed here is that in the SD card mode,

[00:10:38] Speaker 03:
The 3DS takes two images, stores them to the SD card mode, and at that point camera calibration has already been taken care of.

[00:10:48] Speaker 03:
The transformations like rotation and scaling that relate to camera calibration have already been effectuated and the images are saved.

[00:10:56] Speaker 00:
Where does it say SD card mode?

[00:10:58] Speaker 00:
I'm sorry.

[00:11:04] Speaker 03:
So on page 5303, line seven.

[00:11:08] Speaker 03:
So again, to put this discussion in context, it's confirming, it's Nintendo's witness, expert witness confirming that in SD card mode, the camera calibration and the various multiple transformations that Nintendo relies upon have already been taken care of and that when the image... And that's where you argued it?

[00:11:33] Speaker 00:
My question was...

[00:11:35] Speaker 00:
Did you argue to the district court that it must assess equivalency based on the SD card mode of operation?

[00:11:42] Speaker 00:
You say that at page 51 of your blue brief, but there's nothing there.

[00:11:47] Speaker 00:
That's why I'm asking you for something in the record.

[00:11:49] Speaker 00:
Where did you argue it?

[00:11:51] Speaker 03:
We argued it in the post trial papers, Your Honor.

[00:11:58] Speaker 00:
In the record, that is where?

[00:12:01] Speaker 00:
Appendix.

[00:12:28] Speaker 03:
We're looking for that site.

[00:12:50] Speaker 03:
But the bottom line, Your Honor, is it's in the record clearly reflected here.

[00:12:57] Speaker 03:
Certainly Nintendo has not objected to that having been put before the court.

[00:13:05] Speaker 03:
And it most certainly was before the court in the closed trial paper.

[00:13:14] Speaker 00:
And you'll cite me to that in your response?

[00:13:18] Speaker 00:
We will look for that.

[00:13:19] Speaker 00:
You're going to reply, right?

[00:13:21] Speaker 03:
I misunderstood.

[00:13:22] Speaker 03:
I thought you were looking for the evidence in the record.

[00:13:25] Speaker 01:
We're into our rebuttals.

[00:13:26] Speaker 01:
Over to you this time.

[00:13:27] Speaker 03:
Thank you.

[00:13:41] Speaker 04:
Good morning.

[00:13:42] Speaker 04:
May it please the court?

[00:13:43] Speaker 04:
I'm James Blank for Nintendo Company Limited and Nintendo of America, Inc.

[00:13:49] Speaker 00:
To me, to make that argument on equivalency SD card to the district court,

[00:13:55] Speaker 04:
I don't have a recollection of that.

[00:13:58] Speaker 04:
I just don't know as I stand here right now.

[00:13:59] Speaker 04:
I can't honestly answer that as I sit here right now.

[00:14:01] Speaker 00:
Well, it's their question, so I have.

[00:14:04] Speaker 04:
Go ahead.

[00:14:05] Speaker 04:
There are two independent reasons why the judgment of non-infringement should be affirmed.

[00:14:11] Speaker 04:
One, to prove equivalence of the offsetting structures, by its own admission, Tamita chose to rely exclusively on evidence, alleged evidence, of known interchangeability.

[00:14:23] Speaker 04:
And that's reflected on page 20 of their opening brief and page 26 of their reply brief.

[00:14:29] Speaker 04:
With respect to the function way result test, they took the position in this case that it has no application and the district court was incorrect to have applied it.

[00:14:39] Speaker 04:
And therefore, they put in no evidence at trial on the function way result test.

[00:14:44] Speaker 04:
With respect to the insubstantial differences test, they also put in no evidence.

[00:14:48] Speaker 04:
They relied exclusively on known interchangeability.

[00:14:53] Speaker 04:
At APPX 0017, the district court found that Tamita's evidence of known interchangeability, alleged known interchangeability, was insufficient.

[00:15:04] Speaker 04:
Specifically, the district court found that Tamita's evidence amounted to nothing more than a showing that a timing-based technique, as in the patent, existed.

[00:15:20] Speaker 04:
and matrix operations for performing generic offsetting existed at a particular point in time.

[00:15:28] Speaker 04:
The district court failed to show that those two techniques were known to be interchangeable.

[00:15:39] Speaker 04:
And it also found that they were not known to be interchangeable for performing the recited function of the offset pre-setting.

[00:15:47] Speaker 04:
The recited function of the offset presetting means is offsetting and displaying based on cross point information, screen size information, and video image information.

[00:16:07] Speaker 04:
All their evidence showed at best was that there were two techniques for doing generic offsetting.

[00:16:13] Speaker 04:
That's not what the law requires.

[00:16:14] Speaker 04:
The law requires that they show that the

[00:16:17] Speaker 04:
if there were two known structures known to be interchangeable for performing the recited function.

[00:16:23] Speaker 02:
What do you understand by the term interchangeable or known interchangeability in this context?

[00:16:31] Speaker 02:
Again, to go back to my rather silly hypothetical, you say that a bicycle and a motorcycle are interchangeable with respect to the function of travel from A to B. But that does not strike me as what any court has meant by using

[00:16:47] Speaker 02:
the term interchangeable, it obviously seems to require somewhat more.

[00:16:51] Speaker 02:
What more do you think is required for the notion of interchangeability to be satisfied?

[00:16:57] Speaker 04:
I think, though, the cases of this court and the Supreme Court are pretty clear on that.

[00:17:03] Speaker 02:
Well, why don't you tell me what they said?

[00:17:05] Speaker 02:
Sure.

[00:17:06] Speaker 04:
That the two structures have to be known to be interchangeable for performing the recited function and

[00:17:16] Speaker 04:
They have to be known to be structurally interchangeable.

[00:17:22] Speaker 02:
Well, you've defined interchangeable by using the term interchangeable twice.

[00:17:27] Speaker 02:
Can you do better than that?

[00:17:28] Speaker 02:
Because I find the term to be amorphous.

[00:17:31] Speaker 02:
And I would like to have some guidance more than simply interchangeable means they can be interchangeable.

[00:17:40] Speaker 02:
Structurally or functionally.

[00:17:42] Speaker 04:
In Chiuminata, the court said that

[00:17:45] Speaker 04:
that that means that the structures have to be known by persons of ordinary skill in the art or in the objective evidence to be equivalent, structurally equivalent.

[00:17:57] Speaker 04:
It is a bit of an amorphous concept.

[00:17:59] Speaker 04:
It certainly means a lot more than having two structures known to exist at a particular point in time that perform the same function.

[00:18:09] Speaker 04:
It's certainly looking at two structures from the perspective of one of ordinary skill in the art

[00:18:14] Speaker 04:
And as the court in Warner Jenkinson and Hilton Davis has said, it is objective evidence that informs the equivalence or either the function way result or the insubstantial differences inquiry.

[00:18:30] Speaker 04:
Here, their evidence only got to the issue of whether they perform a generic function of offsetting, which

[00:18:43] Speaker 04:
in and of itself is not good enough.

[00:18:46] Speaker 04:
Even if their evidence were good enough on known interchangeability, it's not enough.

[00:18:51] Speaker 04:
It's not dispositive.

[00:18:53] Speaker 04:
And they failed to put in any evidence with respect to equivalence under the function way result test or the insubstantial differences test.

[00:19:03] Speaker 02:
OK, now to go back to your statement that their evidence fell short on interchange, even under interchangeability as the standard, exactly

[00:19:12] Speaker 02:
How did it fall short in your view?

[00:19:15] Speaker 02:
Because that's the best way for me to understand what you mean when you say interchangeable as opposed to what they mean when they say interchangeable.

[00:19:23] Speaker 04:
OK.

[00:19:23] Speaker 04:
So first of all, it's not whether they're interchangeable.

[00:19:29] Speaker 04:
It's whether there was evidence showing that they were known to be interchangeable.

[00:19:33] Speaker 02:
OK.

[00:19:33] Speaker 02:
I'm going to take the known to be a given.

[00:19:35] Speaker 02:
So when I use interchangeable, read known interchangeable.

[00:19:38] Speaker 04:
OK.

[00:19:39] Speaker 04:
So the district court made many findings on this.

[00:19:43] Speaker 04:
At APPX 0017, the district court found that, quote, using relative timing and using matrix operations to accomplish image offsets, again, just a generic offsetting function, were both known to the art prior to the issuance of the 664 patent.

[00:20:04] Speaker 04:
It's like your final part.

[00:20:05] Speaker 02:
So that takes care of the known part.

[00:20:07] Speaker 02:
Now let's go to interchangeability.

[00:20:09] Speaker 04:
Right.

[00:20:11] Speaker 04:
And so then the district court did not find that relative timing and matrix operations were known to be interchangeable for performing offsetting.

[00:20:23] Speaker 04:
To the contrary, the district court found that the two techniques are not interchangeable for purposes of the insubstantial differences analysis simply because they were both known to accomplish

[00:20:36] Speaker 04:
horizontal translations to create stereoscopic images.

[00:20:43] Speaker 00:
You might want to go do some research eventually about Samuel B. Colt and the invention of interchangeable parts.

[00:20:51] Speaker 00:
Before he started doing it, the concept didn't exist.

[00:20:56] Speaker 00:
I will do that.

[00:21:01] Speaker 04:
So then the district court

[00:21:04] Speaker 04:
If you look at the opinion, the district court made those findings, and then the district court cited Chiuamanata, and correctly so, and said, you know, the evidence that, Tamita, that you've presented is not enough.

[00:21:26] Speaker 04:
I need to look at, I have to look at the structures, and I'm going to go and do that.

[00:21:31] Speaker 04:
And then the district court, excuse me,

[00:21:34] Speaker 04:
went ahead and looked at the evidence on both sides, competing.

[00:21:38] Speaker 04:
There was competing expert testimony and other types of evidence, and looked at the differences, because this is an equivalence case.

[00:21:46] Speaker 04:
Looked at the differences and reached the conclusion that there were substantial differences under the Insubstantial Differences Test.

[00:22:00] Speaker 02:
Well, that's what the district court did.

[00:22:02] Speaker 02:
And we all agree with that.

[00:22:04] Speaker 02:
Even your opposing counsel will agree that's what the district court yet, or at least I think so.

[00:22:08] Speaker 02:
But where in the evidence could you point me to perhaps the most important aspect of the difference between the two that in your view justifies a conclusion that these two techniques are not equivalent?

[00:22:25] Speaker 02:
What's the bell ringer here in terms of the structure and to the extent that it applies function?

[00:22:31] Speaker 04:
on why they are not equivalent?

[00:22:33] Speaker 02:
Why they're not equivalent?

[00:22:34] Speaker 04:
Sure.

[00:22:36] Speaker 04:
I think the best evidence for offsetting or for displaying.

[00:22:41] Speaker 02:
Let's talk about offsetting before we get to that.

[00:22:43] Speaker 04:
That's what I thought.

[00:22:43] Speaker 04:
I think the best evidence on that was the district court's finding on APPX 0013, citing APPX

[00:23:01] Speaker 04:
5221, lines 8 through 22, and there are many other.

[00:23:07] Speaker 04:
That's specifically what the district court cited.

[00:23:09] Speaker 04:
But the specific finding is that the district court made is the effect on the horizontal coordinate of a given pixel transformed by a matrix in the 3DS cannot be reduced to the addition of a single value.

[00:23:23] Speaker 04:
Instead, the 3DS's transformation matrices, which is the structure accused of infringement here,

[00:23:30] Speaker 04:
also accomplish rotations and scalings, which will affect the horizontal coordinates of the pixels.

[00:23:38] Speaker 04:
And the district court found, based on that factual finding, which is not challenged by Tamita, that factual finding is not challenged by Tamita.

[00:23:49] Speaker 04:
In fact, virtually all of the factual findings that the district court made is not challenged by Tamita.

[00:23:57] Speaker 02:
Now, as a matter of technology here,

[00:24:00] Speaker 02:
How does the effect on rotations and scalings affect the horizontal coordinates of the pixels in the accused device?

[00:24:13] Speaker 04:
So Dr. Fromm, the testimony that I cited, APPX 5218 through 22, is Dr. Fromm testifying on that point.

[00:24:28] Speaker 04:
numerous other sites for that, but... Well, you can just tell me what he said, summarize what he said.

[00:24:38] Speaker 04:
Okay, so what he said was that when you do through matrix operations, when you use values

[00:24:52] Speaker 04:
specifically in this case, the values that are input into the matrices that the 3DS builds into the A matrix and the B matrix.

[00:25:03] Speaker 04:
So you have the T value, and then you have a value for scaling, and you have a value for rotation.

[00:25:10] Speaker 04:
As a technical matter, all of those values affect the horizontal shift

[00:25:21] Speaker 04:
of the pixels.

[00:25:23] Speaker 02:
How does rotation, for example, affect the horizontal shift?

[00:25:27] Speaker 04:
Well, in the Nintendo 3DS, you are taking the original camera images, and you are creating new images through rendering.

[00:25:40] Speaker 04:
So you're modifying every single pixel in the XY coordinate.

[00:25:45] Speaker 04:
And the modifications involve rotation

[00:25:50] Speaker 04:
include rotation, translation, and scaling.

[00:25:55] Speaker 04:
And as a technical matter, there's extensive testimony from Dr. Fromm that the rotation, that all three of those things affect the horizontal coordinates.

[00:26:05] Speaker 02:
Even though the ultimate outcome is just a set of horizontal coordinate changes?

[00:26:12] Speaker 02:
Correct.

[00:26:14] Speaker 04:
All right.

[00:26:14] Speaker 04:
Correct.

[00:26:16] Speaker 04:
I had, in my limited time, I wanted to, so the interchangeability evidence we submit in and of itself is a total failure, the way they tried this case was a total failure of reason as an independent basis to affirm the judgment.

[00:26:33] Speaker 04:
The undisplaying

[00:26:37] Speaker 04:
To me, this primary argument is that the district court conducted an improper component-by-component analysis.

[00:26:47] Speaker 04:
And of course, this court can affirm the judgment of non-infringement on the basis of offsetting or display.

[00:26:56] Speaker 04:
Either one of those grounds is sufficient.

[00:26:59] Speaker 04:
So on displaying component-by-component, this court,

[00:27:07] Speaker 04:
to meet a one, construed the displaying structure, the corresponding structure, to require synthesis frame memory 50 along with signal switch 40 and switch control unit 41 in their inputs and outputs.

[00:27:21] Speaker 04:
That was the corresponding structure when this case was before this court.

[00:27:28] Speaker 04:
In so doing, this court determined that all three of those components are necessary to perform the displaying function.

[00:27:37] Speaker 04:
and linked in the specification to the displaying function.

[00:27:46] Speaker 04:
Tamita now is arguing that the synthesis frame memory 50 is optional.

[00:27:54] Speaker 04:
I would submit that this court's claim construction rejected that argument, and the district court's findings of fact also rejected that.

[00:28:06] Speaker 04:
The district court made

[00:28:07] Speaker 04:
extensive findings of fact, looking at all of the corresponding structure as construed by this court and comparing all of that structure to the substitute structure in the 3DS that Tamita accused of infringement.

[00:28:23] Speaker 04:
The district court acknowledged the component by component law of this court and said it was mindful not to engage in such an analysis.

[00:28:33] Speaker 04:
And it absolutely did not do so.

[00:28:37] Speaker 04:
I only have five seconds left.

[00:28:40] Speaker 04:
Use it well.

[00:28:42] Speaker 01:
Thank you.

[00:28:42] Speaker 01:
Thank you.

[00:28:51] Speaker 01:
I don't want to take much time.

[00:28:52] Speaker 01:
Just one quick point.

[00:28:53] Speaker 01:
I assume you do not disagree with your friend that we can affirm the district court's judgment either on offsetting or displaying.

[00:29:02] Speaker 03:
That is correct, though.

[00:29:02] Speaker 03:
There are legal areas on each side.

[00:29:06] Speaker 03:
To your Honor's point, Nintendo did not challenge whether or not the SD card was put before the court.

[00:29:13] Speaker 03:
Had they, we would have cited to the post-trial, the post-finance of fact, and conclusions of law.

[00:29:20] Speaker 03:
So it is not in the record, but we would certainly request to submit that site if deemed necessary.

[00:29:27] Speaker 02:
You mean it's not in the appendix, but it's in the record.

[00:29:30] Speaker 03:
Correct.

[00:29:30] Speaker 03:
It's in the record.

[00:29:31] Speaker 03:
It is in the post-trial, the post-finance of fact, and conclusions of law.

[00:29:37] Speaker 03:
So let me address this notion of interchangeability and the question of what more is required.

[00:29:44] Speaker 03:
Nintendo tries to say that the evidence was simply generic offsetting.

[00:29:50] Speaker 03:
That is not the case.

[00:29:51] Speaker 03:
It is specifically evidence, and it's in the record, of using each of the structures for horizontal translations to create stereoscopic images.

[00:30:02] Speaker 03:
That's what the court explicitly found at page 17, quote,

[00:30:06] Speaker 03:
to accomplish horizontal translations used to create stereoscopic images.

[00:30:12] Speaker 03:
And if you review the evidence in Tomita's reply at page 26, it's very specific.

[00:30:18] Speaker 03:
To require anything more would be to require 102 prior art.

[00:30:27] Speaker 03:
The specific recited function of horizontally offsetting for stereoscopic images, that's what these two structures were known to be interchangeable for.

[00:30:37] Speaker 03:
Let me address what Nintendo referred to as the most important difference regarding offsetting.

[00:30:44] Speaker 03:
And the court refers to this notably in the function way result analysis at appendix 13 to 14 of the decision as the one individual difference significant on its own.

[00:30:54] Speaker 03:
And this is the single value issue.

[00:30:58] Speaker 03:
But the court itself goes on to explain that the single value issue is a result of rotations and scaling.

[00:31:07] Speaker 03:
And those rotations and scalings are a result of camera calibration.

[00:31:12] Speaker 03:
For example, appendix 52, 22, lines 20 to 24.

[00:31:16] Speaker 03:
Nintendo's own witness explains that it's camera calibration that requires rotation of images and scaling of images.

[00:31:27] Speaker 03:
We also dispute that factually, and we address that in our reply brief.

[00:31:32] Speaker 03:
There is a single value

[00:31:35] Speaker 03:
in the matrix employed by the 3DS that goes to horizontal offsetting.

[00:31:41] Speaker 03:
There are other values that are separate that go to rotation and scaling.

[00:31:47] Speaker 03:
But the horizontal offset value is completely separable.

[00:31:51] Speaker 03:
And it makes sense.

[00:31:54] Speaker 03:
Tomita proved infringement, proved that 3DS performed the recited function of offsetting based on cross point.

[00:32:01] Speaker 03:
And this court in the first appeal did not disturb that finding.

[00:32:03] Speaker 03:
The district court agrees.

[00:32:06] Speaker 03:
It is a completely separate value that Tamita has pointed to for the horizontal offsetting and issue here.

[00:32:14] Speaker 03:
It is, again, the SD card mode.

[00:32:18] Speaker 03:
Camera calibration has already been taken care of.

[00:32:20] Speaker 03:
Why is it relevant?

[00:32:22] Speaker 03:
Not because SD card, well, one, because SD card mode is an infringement in and of itself because there are no additional transformations for rotation and scaling.

[00:32:32] Speaker 03:
It's completely separate.

[00:32:33] Speaker 03:
But it also is important in its own right

[00:32:35] Speaker 03:
as objective evidence that the horizontal offsetting referred to in the claim is completely separate from camera calibration.

[00:32:46] Speaker 01:
Your time has expired.

[00:32:47] Speaker 01:
So if you have one final sentence, we'll take it.

[00:32:49] Speaker 01:
Thank you, Your Honor.

[00:32:50] Speaker 00:
Well, I want to say one final sentence.

[00:32:52] Speaker 00:
And that is, I asked you that question based on page 51 of your brief, the heading of which reads, the district court here is a matter of law in failing to evaluate equivalence for the 3D

[00:33:03] Speaker 00:
S's mode of operation in which images are displayed from an SD card, I expect to be able to look in the record and see where that is.

[00:33:14] Speaker 00:
Not to be told, well, it's not in the record, but we'll find it for you.

[00:33:19] Speaker 03:
Understood, Your Honor.

[00:33:20] Speaker 03:
Had it been challenged.

[00:33:33] Speaker 03:
One final point on that.

[00:33:34] Speaker 03:
The record is, in a sense, in the judgment itself.

[00:33:40] Speaker 03:
Despite the evidence of the SD card in the appendix, which I cited to, there is absolutely no mention whatsoever of that operation in the district court's decision.

[00:33:51] Speaker 03:
None whatsoever.

[00:33:52] Speaker 03:
Clearly, it was argued.

[00:33:53] Speaker 03:
Both experts talked about it, and we cite to that.

[00:33:56] Speaker 03:
And it's not even a single acknowledgment of that mode in the decision.

[00:34:02] Speaker 01:
Thank you.

[00:34:03] Speaker 01:
We thank both parties and the cases committed.