[00:00:04] Speaker 04:
The three cases on the calendar this morning have been consolidated for argument and we appreciate the party's cooperation in that regard.

[00:00:13] Speaker 04:
The cases are 16-1327 Zahn versus Gillette, 16-1393 Zahn versus advanced micro devices, and 16-1423 Zahn versus advanced micro devices.

[00:00:29] Speaker 04:
Sir, whenever you're ready.

[00:00:39] Speaker 03:
Morning, Your Honors.

[00:00:40] Speaker 03:
My name is Tarek Fahmy.

[00:00:42] Speaker 03:
I'm here representing the Patent Owners Zond.

[00:00:45] Speaker 03:
May it please the Court.

[00:00:47] Speaker 03:
Your Honors, beginning with the IPRs involving the 155 and 184 patents, the Board's decisions take claim language that contains no ambiguity without forming an order and introduces uncertainty, substantially eliminating the possibility of argument.

[00:01:09] Speaker 03:
And that uncertainty exists where there should be none.

[00:01:13] Speaker 04:
Well, I understand what you're saying that in your view of it is this falls into the box where we say there's clear and ordinary meaning, there's clearly an understanding.

[00:01:22] Speaker 04:
But doesn't the expert testimony that came in in this case demonstrate that there is no clear meaning of this term is not as substantially as the board concluded and not entirely?

[00:01:36] Speaker 03:
I don't think so, Your Honor.

[00:01:37] Speaker 03:
What the expert testimony indicated was that the patent teaches that when the weakly ionized plasma is formed, there's a, quote, substantial elimination of the possibility of arcing.

[00:01:54] Speaker 03:
That's not disputed.

[00:01:56] Speaker 03:
But the claims go further, and the patent actually teaches a further embodiment where the arcing is eliminated during the formation

[00:02:05] Speaker 03:
of the strongly ionized plasma.

[00:02:07] Speaker 03:
And I would invite the court's attention to, for example, the 155 pattern, column four, lines eight through 10.

[00:02:16] Speaker 03:
The pulsed power supply, 102, can include circuitry that minimizes or eliminates the probability of arcing in the chamber.

[00:02:26] Speaker 02:
Now... But all you're doing is repeating the language of the claim.

[00:02:31] Speaker 02:
And the question is how to read the language of the claim

[00:02:35] Speaker 02:
in the light of the reality of the science to which your expert testified.

[00:02:43] Speaker 02:
As I understand it, you are now saying that we're talking about the pulse that creates the strongly ionized plasma and it's only dealing with that instant in time.

[00:02:59] Speaker 02:
rather than during the entire process.

[00:03:02] Speaker 02:
And you've asserted that the testimony about the inevitability of arcing only is addressed to the entire process.

[00:03:14] Speaker 02:
I don't think that's true.

[00:03:15] Speaker 02:
I think there is, in fact, pretty clear testimony that even at the moment that the pulse creates the strongly ionized plasma,

[00:03:27] Speaker 02:
that there is arcing, not in every instance, but that there are times when you can avoid it and there are times when it's not avoidable.

[00:03:41] Speaker 02:
So if you were, even under your view, if you were to construe these claims as saying it covers a situation where the pulse does not create arcing, that, according to the testimony,

[00:03:55] Speaker 02:
is also true with respect to the prior arc and grain reference.

[00:04:02] Speaker 02:
In other words, that in both instances at the moment of creation, there is sometimes arcing and there's sometimes not.

[00:04:09] Speaker 02:
So how can you avoid weighing under those circumstances?

[00:04:14] Speaker 03:
Your Honor, the claims don't recite a situation in which every possible instance of arcing is eliminated.

[00:04:24] Speaker 03:
that's never been the patent owner's position.

[00:04:27] Speaker 03:
The claims recite something.

[00:04:29] Speaker 02:
And it doesn't even eliminate arcing, the possibility of arcing at the time of the creation of the strongly ionized plasma, because it's not possible to eliminate that in all instances, correct?

[00:04:46] Speaker 03:
I don't know that there was evidence on that point, Your Honor, but the claims are not directed in every instance.

[00:04:52] Speaker 02:
Please answer my question.

[00:04:56] Speaker 03:
I'm not a plasma physicist, Your Honor.

[00:04:58] Speaker 02:
Based on my understanding... Well, the testimony that I've read says pretty clearly, both by your expert and otherwise, that it is not possible to uniformly avoid arcing at the moment that the strongly ionized plasma is created.

[00:05:17] Speaker 03:
Your Honor, I disagree with that assessment of the testimony and allow me to explain.

[00:05:24] Speaker 03:
If arcing occurs, the plasma never comes into existence.

[00:05:30] Speaker 03:
It's that simple.

[00:05:34] Speaker 02:
I don't read the testimony that way, but let's assume that I'm correct as to what the testimony says.

[00:05:40] Speaker 02:
Then why isn't Wang anticipatory?

[00:05:47] Speaker 03:
Because the claim recites characteristics of a voltage pulse that have to be adhered to.

[00:05:55] Speaker 03:
in order to achieve this elimination of arcing at the transition between the weakly ionized plasma and the strongly ionized plasma.

[00:06:04] Speaker 03:
Now, for one, Wang doesn't speak to control of a voltage pulse.

[00:06:09] Speaker 03:
Wang is discussing the application of power.

[00:06:14] Speaker 03:
And so the testimony in the record from Mr. DeVito indicates that when you are controlling power, you are not controlling voltage.

[00:06:21] Speaker 02:
That's a different argument, right?

[00:06:24] Speaker 03:
No, your honor, that's the argument that Zond has been making from the outset, is that the claims are narrowly focused on, quote, a voltage pulse having at least one of a control amplitude and a control rise time that increases the ionization rate.

[00:06:42] Speaker 03:
So in order to form the strongly ionized plasmids, so it forms without an arc.

[00:06:49] Speaker 03:
It's control of the voltage pulse.

[00:06:51] Speaker 03:
It's not control over every possible

[00:06:54] Speaker 03:
source of arcing might occur in the chamber.

[00:06:57] Speaker 03:
We've agreed to accept your view is correct for purposes of the argument that there may be other sources of arcing, but the claim doesn't speak to that.

[00:07:12] Speaker 03:
The board had the same misinterpretation of the argument.

[00:07:19] Speaker 03:
The board apparently thought that we were trying to argue

[00:07:22] Speaker 03:
what I think my colleague has characterized as an absolutist construction in which every possible contingency of arcing has to be eliminated but that was never the argument.

[00:07:38] Speaker 03:
The argument only ever was that there was certain controls placed on the voltage pulse as described in the specification and as shown in many of the diagrams

[00:07:51] Speaker 03:
of the patent.

[00:07:53] Speaker 03:
Figures, I think 4 through 7b, provide many examples of the kinds of pulses that could be used to achieve this effect.

[00:08:08] Speaker 03:
Somehow the board read this as the idea that, oh no, Zond is suggesting that the claim

[00:08:16] Speaker 03:
requires absolutely no arcing from any circumstance.

[00:08:19] Speaker 03:
But that simply was never the case.

[00:08:21] Speaker 03:
It's not the case before this court.

[00:08:26] Speaker 03:
Your Honor, the specification, again, I'm going to refer to the 155 patent, but the 184 shares the same specification.

[00:08:37] Speaker 03:
Specification indicates that... You want to give us a site to the specification?

[00:08:42] Speaker 03:
Yes, Your Honor, 155 patent, column 6, lines 11 through 12.

[00:08:47] Speaker 03:
indicates the power supply can be programmed to generate pulses having various shapes.

[00:08:58] Speaker 03:
And then consistent with the testimony of Dr. Hartzell, there are many examples of the shapes of those voltage pulses, each having the claimed attributes of the control amplitude and the control rise time.

[00:09:11] Speaker 03:
That is what the claims are directed to, Your Honor.

[00:09:16] Speaker 03:
And the programming of the power supply allows control over the rate at which the energy is delivered into the plasma.

[00:09:26] Speaker 03:
That's control of the rise time, control of the magnitude.

[00:09:31] Speaker 03:
And thereby achieves the elimination of the arching that's recited in the claims.

[00:09:38] Speaker 03:
As I mentioned, the claim speaks to two

[00:09:43] Speaker 03:
the specification speaks to two different embodiments, those that may minimize the probability of arcing and those that eliminate it.

[00:09:55] Speaker 03:
And the use of the word or here is important because it signals the introductions of alternatives embodiments.

[00:10:01] Speaker 03:
In fact, the example or the embodiment in which arcing may only be minimized is given, for example, again, the 155 patent, column 20,

[00:10:12] Speaker 03:
lines 36 through 37 by controlling the size of the gap between the cathode and the anode, arcing can be minimized.

[00:10:23] Speaker 03:
And so that's a separate embodiment.

[00:10:26] Speaker 00:
That's an embodiment, but what seems to have concerned the board is that what is claimed is the result and that the details of how the result is achieved are not limited in the claims.

[00:10:43] Speaker 03:
I would suggest, Your Honor, that the result certainly is recited, but how it's achieved is specified through the control of the amplitude and the rise time.

[00:10:59] Speaker 03:
And that is in fact how the figures are drawn to show that control over time.

[00:11:05] Speaker 00:
And so I think those are the means by which... It was known that you need to avoid an electrical breakdown.

[00:11:11] Speaker 03:
Yes, it was known.

[00:11:13] Speaker 00:
So a claim that says whatever avoids electrical breakdown is claimed or is novel, that does seem to raise questions of the differences, the distinctions from what's already been known, which is really a matter of the breadth of the claim, is it not?

[00:11:33] Speaker 03:
Well, I agree the breadth of the claim is certainly an issue, Your Honor.

[00:11:37] Speaker 03:
I don't think it's as broad as you're suggesting.

[00:11:39] Speaker 03:
I don't think it's any mechanism by which

[00:11:43] Speaker 03:
You might avoid formation of an arc.

[00:11:48] Speaker 03:
It's specific about the voltage pulse and it's specific about which parameters of the voltage pulse are controlled.

[00:11:55] Speaker 00:
The electrical pulse was not novel, was it, for this technology?

[00:12:03] Speaker 03:
In the abstract, no.

[00:12:05] Speaker 03:
That's how plasmas are created.

[00:12:08] Speaker 03:
It's through electrical pulses.

[00:12:10] Speaker 00:
Just looking, for instance, assuming that the Russian dissertation is prior art, considers the pulse.

[00:12:21] Speaker 03:
So you're speaking to a different set of claims, Your Honor.

[00:12:25] Speaker 03:
The Mazgun thesis was not a basis for

[00:12:32] Speaker 03:
finding the claims unpatentable with respect to the 155 that I've been speaking to.

[00:12:37] Speaker 03:
You're speaking to the 421 and 773 patents.

[00:12:43] Speaker 03:
So how about moving on to those that Judge Newman was referring to?

[00:12:46] Speaker 03:
Certainly, Your Honor.

[00:12:49] Speaker 03:
The claims in the 421 patent, at least the independent claims, were found anticipated

[00:12:59] Speaker 03:
by Wang and so the Mazgrim thesis was actually not used in finding those claims unpatentable.

[00:13:07] Speaker 03:
The Mazgrim thesis really only comes into play when we're dealing with some of the dependent claims in 423 and the one claim of 773, claim two.

[00:13:18] Speaker 04:
I'm saying you said 423, you mean 421?

[00:13:21] Speaker 03:
I beg your pardon, 421.

[00:13:25] Speaker 03:
It would be claims 14, 26, and 37 of 421, and claim 2 of 773.

[00:13:33] Speaker 03:
Certainly the thesis speaks to use of electrical pulses to create plasmids, yes.

[00:13:38] Speaker 00:
Yes, to understand the state of the art at the time, at the initial priority of Zahn's applications.

[00:13:50] Speaker 03:
Yes, it was known to use electrical pulses to create plasmids.

[00:13:53] Speaker 03:
That's never been in dispute.

[00:13:55] Speaker 03:
What is in dispute is the particular kind of control that's exercised in order to eliminate the possibility of arcing when the strongly ionized plasma is created.

[00:14:10] Speaker 03:
Judge Prosh, you'd asked me to speak to the Mazgrim thesis and I'm more than happy to.

[00:14:19] Speaker 03:
Contention with respect to the thesis.

[00:14:21] Speaker 02:
There's no question that there was substantial evidence to support the notion that the thesis existed in 1994, right?

[00:14:27] Speaker 03:
Its existence has never been disputed, Your Honor, no.

[00:14:33] Speaker 03:
The fact that it existed has not been disputed.

[00:14:36] Speaker 03:
What was disputed was whether it was publicly accessible for purposes of

[00:14:43] Speaker 03:
the patent statute.

[00:14:44] Speaker 02:
And there's no dispute that if it was on the Russian State Library website, that it was publicly accessible, right?

[00:14:54] Speaker 03:
Had it been so?

[00:14:56] Speaker 03:
Yes, it would have been publicly accessible.

[00:14:58] Speaker 03:
But there was no evidence that that website even existed at the time of the invention.

[00:15:05] Speaker 03:
That web page printout was a printout from 2014, I believe.

[00:15:12] Speaker 03:
and there was no evidence that the catalog existed at the time of the invention.

[00:15:18] Speaker 03:
In fact, this is something that Judge Stevens noted in her dissent.

[00:15:22] Speaker 02:
She says... Well, it says since 1995, so isn't that evidence that the website existed as of 1995?

[00:15:30] Speaker 03:
I don't think it is at all, Your Honor.

[00:15:33] Speaker 03:
I think it merely says that this is a list of

[00:15:38] Speaker 03:
documents since 1995.

[00:15:40] Speaker 03:
It says nothing about when the list was created, certainly says nothing about when the list was posted to the internet, says nothing about when the list was made available to anyone in any form.

[00:15:53] Speaker 03:
It's simply a list.

[00:15:56] Speaker 03:
And if we think back to 1995, we're dealing in dial-up modem days, 14-4 modems, pre-Google,

[00:16:05] Speaker 03:
We were using AltaVista probably as a search engine.

[00:16:10] Speaker 03:
Most people's familiarity with the internet was AOL.

[00:16:15] Speaker 03:
There's no evidence in the record that this kind of a catalog, and in fact, this catalog in particular, was available on the internet in those days.

[00:16:24] Speaker 03:
Well, there's a six-year period though, right?

[00:16:28] Speaker 03:
Yes.

[00:16:28] Speaker 03:
Before the priority day.

[00:16:30] Speaker 03:
Yes.

[00:16:32] Speaker 03:
However, again,

[00:16:33] Speaker 03:
In the absence of evidence, it would be just speculation to say when that list became available.

[00:16:41] Speaker 03:
And this court's Lister decision speaks to those types of issues.

[00:16:47] Speaker 03:
And I believe Lister can be read as saying for the proposition that absence of evidence of that public postings date, the disclosures on the internet or some online database cannot be relied upon as prior

[00:17:04] Speaker 03:
Lister, there was just a two-year period, right?

[00:17:10] Speaker 03:
I believe that's correct, Your Honor.

[00:17:11] Speaker 03:
But the operative part of the decision, as I understand it, was that the court recognized that the manuscript Dr. Lister had created existed.

[00:17:28] Speaker 03:
It had a copyright stamp.

[00:17:30] Speaker 03:
He had registered the manuscript in the Copyright Office.

[00:17:34] Speaker 03:
But while the copyright date might show its existence, it said nothing to its dissemination.

[00:17:42] Speaker 03:
The court looked to, in fact, the dissemination in the Westlaw and the dialogue databases, perhaps akin to posting on an internet.

[00:17:53] Speaker 03:
But because there wasn't any evidence in the record about when those postings occurred or the process used by Westlaw or dialogue,

[00:18:03] Speaker 03:
to incorporate the copyright office records, then one could not say that the manuscript had became publicly available prior to the critical date of the patent.

[00:18:18] Speaker 03:
The other thing that Judge Stevens noted in her dissent was, as I mentioned, that there was no evidence concerning when the catalog even existed

[00:18:31] Speaker 03:
And so there's nothing that indicates the catalog would have been available at the time of the invention.

[00:18:44] Speaker 03:
Your Honor, earlier Judge Dyke mentioned testimony from Zahn's expert, Dr. Hartzell.

[00:18:54] Speaker 03:
And I would just remind the court that the passage that's being referred to

[00:19:01] Speaker 03:
in my colleagues' papers is dealing with a one word answer to a very limited question.

[00:19:13] Speaker 03:
He says no, that there's no way to eliminate the probability of arcing 100% of the time.

[00:19:19] Speaker 03:
That was the answer to the question.

[00:19:21] Speaker 04:
Can you give me the site on that appendix?

[00:19:22] Speaker 04:
Yes, Your Honor.

[00:19:24] Speaker 03:
This is in the appendix with respect to the 716 patent

[00:19:31] Speaker 03:
It's page 1663.

[00:19:35] Speaker 03:
It appears in others of the appendices as well.

[00:19:38] Speaker 03:
That just happens to be the one that I have handy.

[00:19:45] Speaker 03:
But he goes on immediately thereafter and says essentially, look, your question is asking about every possible instance of forming an art and that's not what the claim is about.

[00:19:56] Speaker 03:
The claims directed to conditions

[00:19:59] Speaker 03:
that prevent plasma from forming as an arc as it forms.

[00:20:03] Speaker 02:
Yeah, but there's other testimony at page 198, 99 of the same transcript.

[00:20:10] Speaker 02:
So in order to meet the claim, you have to eliminate arcing 100% of the time during the formation of the strongly ionized plasma.

[00:20:19] Speaker 02:
And he says if you're forming an arc, it's possible that an arc could occur, as I've mentioned.

[00:20:29] Speaker 02:
And then he goes on to say that Wang, even in Wang, we can agree that sometimes argue will occur and sometimes it won't.

[00:20:46] Speaker 02:
He says that's right.

[00:20:48] Speaker 02:
And he says that

[00:20:53] Speaker 02:
In instances where Wang does not have arcing, does it meet the claim phrase without forming an arc?

[00:20:58] Speaker 02:
And your witness said it doesn't form an arc.

[00:21:04] Speaker 02:
So he seems to agree that arcing sometimes is going to occur even under the patented device and method and that sometimes arcing is not going to occur in Wang.

[00:21:19] Speaker 02:
So what's the difference between the two?

[00:21:21] Speaker 03:
So I think I know some into the rebuttal time, Your Honor, but let me answer your question.

[00:21:26] Speaker 03:
I think the first portion of the quote that you read from Dr. Hartzow is consistent with the section that I pointed to in that there was never any assertion that all possible arcing is eliminated all of the time.

[00:21:44] Speaker 02:
No, but the quote that I read is directed to the formation

[00:21:49] Speaker 02:
point of formation of the strongly ionized plasma.

[00:21:53] Speaker 03:
Yes, and as I mentioned at the outset, even during the formation, the claim only speaks to the application of the voltage pulse and not all possible circumstances for arcing that might exist.

[00:22:06] Speaker 03:
And I think the testimony is consistent with that point.

[00:22:11] Speaker 03:
And as to the idea that sometimes

[00:22:16] Speaker 03:
there may be instances in Wang where arcs are not formed.

[00:22:22] Speaker 03:
If we accept that as true, Dr. Hart's house says it's true, Wang still doesn't meet the requirements of the claim.

[00:22:30] Speaker 03:
For example, Wang controls power, not voltage, and even the figure six embodiment of Wang is incomplete insofar as the

[00:22:42] Speaker 02:
That seems to be your argument now that Wang doesn't anticipate because it's controlling power, not voltage.

[00:22:51] Speaker 02:
But I'm not sure there's a difference, is there really?

[00:22:54] Speaker 03:
There is, and Mr. DeVito says there is, and Wang says there is.

[00:22:58] Speaker 03:
Mr. DeVito testified that when one controls power, voltage initially shoots up.

[00:23:03] Speaker 03:
It's an uncontrolled state because the current has yet to be established through the plasma.

[00:23:08] Speaker 03:
So when one controls power, voltage is uncontrolled.

[00:23:12] Speaker 03:
What did the commission, what did the PTSD say about that?

[00:23:15] Speaker 03:
I don't recall the board directly addressing that portion, Mr. DeVito's testimony, in all your honor.

[00:23:21] Speaker 04:
You are correct, you are into your rebuttal, so why don't we save the remainder and hear from the other side.

[00:23:27] Speaker 04:
Thank you.

[00:23:34] Speaker 01:
Good morning.

[00:23:35] Speaker 01:
My name is Mark Matuszak.

[00:23:38] Speaker 01:
I'm a police in the court and I represent the Appellee Gillette Company.

[00:23:42] Speaker 01:
I'll be presenting argument today on behalf of all of the appellees in all of the appeals for this case.

[00:23:48] Speaker 02:
Why don't you address that last point about how supposedly there's a different mechanism in Wayne for creating the pulse that avoids arcing?

[00:24:01] Speaker 01:
Zahn argued that to the board.

[00:24:03] Speaker 01:
The board had the expert testimony in front of them and the expert testimony was inconsistent with that argument.

[00:24:10] Speaker 01:
The board credited the testimony of Dr. Bravman.

[00:24:14] Speaker 02:
Where?

[00:24:14] Speaker 01:
What page is this?

[00:24:15] Speaker 01:
This is in the 1327th appendix at 25.

[00:24:20] Speaker 01:
It's the board's decision.

[00:24:32] Speaker 04:
The actual number, not the appendix site, is 25.

[00:24:37] Speaker 01:
It's in the appendix number at the bottom.

[00:24:41] Speaker 04:
5,299.

[00:24:41] Speaker 01:
25.

[00:24:47] Speaker 02:
It's the paragraph again also?

[00:24:49] Speaker 01:
Yes.

[00:24:51] Speaker 01:
The board credited Dr. Brabham's testimony that says to generate a power pulse, a power supply first provides a voltage pulse with a specific amplitude and rise time.

[00:25:02] Speaker 01:
And the board credited Mr. DeVito at the same spot, saying Wang discloses a pulse DC power supply connected to the target that produces a train of negative voltage pulses.

[00:25:16] Speaker 01:
And they likewise credited Mr. DeVito's testimony that the application of those voltage pulses is what produces the peak power pulses in Wang.

[00:25:26] Speaker 01:
So this is a factual argument about what the scope of the prior art shows.

[00:25:32] Speaker 01:
the board had significant and substantial evidence on which it could rely for that conclusion.

[00:25:38] Speaker 01:
So I think the board properly reached the conclusion that Wang does show voltage pulse.

[00:25:45] Speaker 01:
Now, it's interesting that we've heard this morning and in the reply brief for the first time Zahn's argument that, well, they don't say that a

[00:25:57] Speaker 01:
You can never have arcing at all during the process.

[00:26:01] Speaker 01:
It's just in the formation of the strongly ionized plasma.

[00:26:04] Speaker 01:
It's just with respect to the voltage pulse.

[00:26:09] Speaker 01:
But in its initial brief and before the board, Zahn argued the claims of the patents, quote, should be construed as requiring formation of a strongly ionized plasma in the absence of forming an arc.

[00:26:20] Speaker 01:
No reference to control of the amplitude in the rise time.

[00:26:25] Speaker 01:
That position is repeated.

[00:26:26] Speaker 01:
at least four other times in their brief.

[00:26:29] Speaker 01:
One example is on page 23.

[00:26:31] Speaker 02:
Well, they're saying that you should read the claim as saying there's no arcing at the time the pulse creates the strongly ionized plasma.

[00:26:40] Speaker 01:
But that's not what they argued to the board.

[00:26:43] Speaker 02:
Well, let's put that aside.

[00:26:45] Speaker 01:
All right.

[00:26:45] Speaker 01:
It's also incorrect.

[00:26:47] Speaker 02:
You can't interrupt me.

[00:26:48] Speaker 02:
You cannot do that.

[00:26:53] Speaker 02:
It seems to me that even if

[00:26:57] Speaker 02:
you're talking about the instance at which the strongly ionized plasma is created, there's testimony that there's sometimes arcing and sometimes not under the patented device and method, and that the same thing is said about wing, that sometimes you can avoid arcing and sometimes not.

[00:27:17] Speaker 02:
So it's hard for me to see why that is an anticipatory.

[00:27:22] Speaker 01:
I agree that it is.

[00:27:23] Speaker 01:
I think, as Your Honor points out,

[00:27:26] Speaker 01:
and mentioned earlier, all of the expert testimony before the board was consistent on this point.

[00:27:32] Speaker 01:
Dr. Hartsaw testified, and I think we've seen one example in the record that Your Honor identified, but there are at least two others where he said, quote, you can't say that an arc would never occur in a system practicing this invention.

[00:27:45] Speaker 01:
He said, and if you're, quote, if you're forming a strongly ionized plasma, you know it's possible that an arc could occur.

[00:27:53] Speaker 01:
And, quote, you can't guarantee that an arc will never occur.

[00:27:56] Speaker 01:
And he even said that these are why that was true.

[00:27:59] Speaker 01:
Because arcing, as he said, is, quote, often a probabilistic thing.

[00:28:04] Speaker 01:
Our expert, our police expert, Dr. Porchek, identified the same way.

[00:28:08] Speaker 01:
He said, the probability of arcing can never be completely eliminated in a realistic spluttering system.

[00:28:15] Speaker 01:
There's always a chance that a local electron density can become sufficiently high to create a short circuit and result in an arc discharge.

[00:28:24] Speaker 01:
Abelie's expert, Dr. Oversett, also explained that, quote, it's not possible to construct a perfect system and there's always a possibility that the system will arc.

[00:28:35] Speaker 01:
With every person of ordinary skill in the art who testified before the board, they all agreed on this factual point and the board properly concluded that one of skill in the art, that skill in the art of plasma physics, would not have understood any of these terms to guarantee the elimination of arcing.

[00:28:52] Speaker 01:
Now Zahn's construction

[00:28:53] Speaker 01:
about arcing is also wrong as a matter of what's disclosed in the specification.

[00:28:59] Speaker 01:
As the board correctly found, nothing in the specification indicates that no arcing occurs in the formation of a strongly ionized plasma.

[00:29:07] Speaker 01:
Start with the 716 patent.

[00:29:09] Speaker 01:
In column three, the specification says, increasing the power applied to the plasma can increase the probability of generating electrical breakdown conditions.

[00:29:19] Speaker 01:
Later in column three, it talks about reducing the probability of an electrical breakdown condition.

[00:29:25] Speaker 01:
In column six, it talks about forming a weekly ionized plasma first, which substantially eliminates the probability of electrical breakdown condition.

[00:29:34] Speaker 01:
In the 716 pattern, there's nothing that discloses any apparatus guaranteeing the elimination of arc.

[00:29:41] Speaker 01:
All the discussions in terms of probabilities.

[00:29:44] Speaker 01:
421 specification, same way.

[00:29:47] Speaker 01:
always talks about probabilities when discussing arcing.

[00:29:50] Speaker 01:
Column 9, the probability of establishing an electrical breakdown condition when high power pulses are applied is substantially eliminated.

[00:29:59] Speaker 01:
Column 15 and 16, the formation of the weekly ionized plasma, substantially eliminates the possibility of creating a breakdown condition.

[00:30:06] Speaker 01:
You mean probability?

[00:30:07] Speaker 01:
Does the spec use it?

[00:30:08] Speaker 01:
That was just possibility.

[00:30:09] Speaker 04:
Oh, it does say possibility.

[00:30:12] Speaker 04:
Can I turn your attention to the final appeal which deals with the Russian thesis?

[00:30:17] Speaker 04:
And can you tell us precisely what evidence was before the board that we are supposed to use to support its conclusion?

[00:30:25] Speaker 01:
Yes, sir.

[00:30:27] Speaker 01:
First, there's no dispute that the work described in the thesis was the subject, also the subject of an article published by Mazgrin in 1995 in the US scientific journal Plasma Physics Report.

[00:30:38] Speaker 01:
Yeah, but it doesn't have the data, the article.

[00:30:41] Speaker 01:
The only thing it's missing actually, they both have, the only thing Mazgrin thesis was used for

[00:30:47] Speaker 01:
was to explain the scale on one figure.

[00:30:50] Speaker 01:
Both the article.

[00:30:51] Speaker 02:
There's no contention that the article contains the necessary information.

[00:30:58] Speaker 04:
We didn't argue that to the board.

[00:31:00] Speaker 04:
Right, and that's not what the board found.

[00:31:02] Speaker 04:
That wasn't the basis for the board.

[00:31:04] Speaker 01:
No, because you could with the scale that's provided for the same figure as shown in both the thesis and the article.

[00:31:11] Speaker 01:
In the thesis, it has the lines that help show what the scale is.

[00:31:16] Speaker 01:
The caption gives you a scale.

[00:31:18] Speaker 02:
What do you get out of the article?

[00:31:19] Speaker 02:
I'm not understanding what your point is.

[00:31:22] Speaker 02:
The article does not have the necessary information that was not argued and the article in fact makes no reference to the thesis either, right?

[00:31:30] Speaker 01:
That's correct but the article does provide as I think

[00:31:35] Speaker 01:
Oh, this court has held in the Breckenmire case that it's a guide to somebody who would be able to find the thesis.

[00:31:41] Speaker 02:
The article ... Wait, wait, wait.

[00:31:44] Speaker 02:
How is that a guide to the thesis when it doesn't even mention the thesis?

[00:31:47] Speaker 01:
Because the thesis is done by the same person, so someone can look up his name.

[00:31:53] Speaker 01:
The thesis has the same title, so someone can look up the title to do a search.

[00:31:57] Speaker 01:
The thesis was cataloged

[00:32:00] Speaker 02:
Well, that's assuming that it was available on the website, on the Russian State Library website.

[00:32:05] Speaker 02:
That seems to be your problem.

[00:32:06] Speaker 02:
Nobody's contesting that the thesis existed in 1994.

[00:32:10] Speaker 02:
Nobody's contesting that if it was on the Russian State Library website that it was publicly available.

[00:32:17] Speaker 02:
Nobody's contesting that at some point in time it became available on the Russian State Library website.

[00:32:24] Speaker 02:
The question is, was it available on the website before the priority date?

[00:32:29] Speaker 02:
What is the evidence that supports that?

[00:32:32] Speaker 01:
Well, the evidence is that the thesis was catalogued and indexed by author, title, and subject.

[00:32:39] Speaker 01:
Now that shows that the Russian State Library had an intent to make it publicly available.

[00:32:43] Speaker 01:
You wouldn't do that unless you intended to make it available to the public.

[00:32:47] Speaker 02:
When, though?

[00:32:48] Speaker 01:
Well, if you have an intention to make something available to the public, and it's catalogued with a 1994 date,

[00:32:57] Speaker 01:
then it seems reasonable to infer, as the board did, that it wouldn't take seven years before that becomes publicly available.

[00:33:04] Speaker 01:
I think that's really the key here.

[00:33:05] Speaker 01:
The thesis was done seven years before the critical date.

[00:33:08] Speaker 01:
The article was six years before the critical date.

[00:33:11] Speaker 01:
And so there was the idea that a library that's taking the time to catalog these would not wait six or seven years to do that.

[00:33:19] Speaker 02:
Why don't you put in some evidence of library practices?

[00:33:22] Speaker 02:
I just don't understand.

[00:33:23] Speaker 02:
It seems to me you dropped the ball.

[00:33:26] Speaker 01:
Well, Your Honor, with respect to this, frequently there is no evidence of library practice.

[00:33:33] Speaker 01:
If it was in the US Library, I'm sure we wouldn't be having the same argument.

[00:33:37] Speaker 01:
People would say it seems likely that this was

[00:33:39] Speaker 01:
cataloged and done it at the time.

[00:33:42] Speaker 04:
Do you have any case where we've reached the conclusion surmising that it wouldn't have taken them seven years to do this?

[00:33:50] Speaker 01:
No, the question is whether the evidence was substantial enough for the board to reach that conclusion and I think it was.

[00:33:58] Speaker 01:
The case that my brother cites with respect to I think it was the

[00:34:12] Speaker 01:
One of the cases that was cited, the issue was whether the copyright offices was the one that we were just talking about.

[00:34:21] Speaker 01:
And in that case, you couldn't search.

[00:34:23] Speaker 01:
You could only search by name and the first word of the title.

[00:34:29] Speaker 01:
Here you have the name, you have the complete title, and you have the subject matter, plasma physics, all in the catalog.

[00:34:36] Speaker 01:
So regardless of whether this was put online, the first

[00:34:42] Speaker 01:
Our first argument is this was cataloged within, I think, the solid inference and that the board properly drew was that it's reasonable to infer that this would have been cataloged within a reasonable time after the date of the thesis.

[00:35:00] Speaker 01:
With respect to... Why?

[00:35:02] Speaker 02:
Why is it reasonable to infer that?

[00:35:04] Speaker 01:
That seems to me to be the hardest question.

[00:35:05] Speaker 01:
Because there's no reason, no one has ever suggested a reason why a library would wait.

[00:35:09] Speaker 02:
Well, what's the evidence that they had the thesis?

[00:35:14] Speaker 01:
That it was, in fact, catalogued.

[00:35:16] Speaker 01:
There is also the evidence, Your Honor, that Your Honor pointed out before from the card catalog page itself that says a catalog of dissertations in Russian since 1995.

[00:35:26] Speaker 01:
I think the reasonable inference for that is this is a catalog that was first created in 1995 and was available thereafter.

[00:35:36] Speaker 01:
All of this evidence shows, again, that the Russian State Library intended to make this public.

[00:35:42] Speaker 01:
And there's no reason to believe that they would have waited beyond six or seven years to put this into their card catalog.

[00:35:50] Speaker 01:
It doesn't make any sense.

[00:35:51] Speaker 01:
Even the card catalog looks like it was done on a Russian paper writer.

[00:35:59] Speaker 01:
So there are a variety of indicia that suggest that this would have been done at a reasonable time.

[00:36:04] Speaker 01:
You have the card catalog.

[00:36:06] Speaker 01:
You have, as I said, another indicia of public accessibility is the idea that there is a path to try to find this.

[00:36:20] Speaker 01:
And you're correct, the Mazgrim article does not refer explicitly to the thesis.

[00:36:25] Speaker 01:
It's the same guy, it's the same title.

[00:36:28] Speaker 01:
And one who had that information

[00:36:32] Speaker 01:
would be able to figure out, okay, who's this Mazgrin guy and go and look in the library that seems to be the likely place to find something.

[00:36:38] Speaker 01:
He's from the Soviet Union.

[00:36:39] Speaker 01:
Let's go look in the Russian state library.

[00:36:42] Speaker 01:
And so I believe with that information was also support the conclusion that this was publicly available.

[00:36:51] Speaker 01:
This court has said, you don't have to show a specific date that something was cataloged.

[00:36:57] Speaker 01:
And we don't have a specific date here.

[00:36:59] Speaker 01:
But we do have these other addition that in other cases, the score has found to be sufficient.

[00:37:04] Speaker 01:
I believe for those reasons, the modular thesis does qualify as a printed publication and the board has substantial evidence to make that determination.

[00:37:17] Speaker 01:
The case that I was talking about before was a Lister case.

[00:37:21] Speaker 01:
And like I said, in that case, there was no catalog, there was neither a catalog or indexing.

[00:37:27] Speaker 01:
Well, let me step back.

[00:37:28] Speaker 01:
That case said you don't even have to have cataloging or indexing to show public availability.

[00:37:35] Speaker 01:
And the copyright office in that case did have some cataloging and indexing, but there was only by name and only the first word of the title and not by subject matter at all.

[00:37:58] Speaker 02:
Wouldn't the Lister case require that we rule against you if we were talking about a two-year period?

[00:38:05] Speaker 01:
If we were talking about a two-year period?

[00:38:08] Speaker 01:
No, I don't think it would require that, Your Honor.

[00:38:10] Speaker 01:
I think it would be a more difficult argument because we're talking about what's reasonable for the board who's weighing this evidence to believe.

[00:38:20] Speaker 01:
And two years makes that reasonableness calculation more challenging, certainly than seven years.

[00:38:26] Speaker 01:
But I think seven years, it seems to me there really is no question.

[00:38:29] Speaker 01:
And if you're erring on the side of reasonableness and deferring to the Board's discretion on this issue, then I believe that seven years, which is the case, makes it sufficient to affirm the Board's conclusion on this matter.

[00:38:49] Speaker 01:
And I would say that I don't think the Lister case

[00:38:55] Speaker 01:
goes on to say that cataloging and indexing are not even a necessary precondition.

[00:39:10] Speaker 01:
And certainly we were able to find it.

[00:39:15] Speaker 02:
Yeah, in 2014.

[00:39:16] Speaker 01:
Well, I understand that, Your Honor, but there isn't any reason to believe that this was not the catalog

[00:39:25] Speaker 01:
did not exist.

[00:39:26] Speaker 01:
I think the principle point of our argument is that when a library goes to the effort, and many of these cases involve libraries that did not go to the effort of cataloging or indexing.

[00:39:36] Speaker 01:
When a library goes to that effort to make a catalog by name, by date, by subject matter, by title, all the additional information that someone would need to track it down, that the reasonable inference for that, which the board

[00:39:48] Speaker 01:
is that it was made publicly available within a reasonable time.

[00:39:52] Speaker 01:
And that catalog entry was made within a reasonable time after the thesis was created.

[00:39:58] Speaker 01:
And a reasonable time is certainly within six or seven years.

[00:40:06] Speaker 01:
Now with respect to, to just go back for one second to the issue of claim construction, it was argued before you that

[00:40:17] Speaker 01:
this language is as minimizes or eliminates as a separate embodiment, and we disagree with that.

[00:40:23] Speaker 01:
First, the 155 and the 184 patents, they discuss arcing in only four places.

[00:40:30] Speaker 01:
In column five, they discuss what the patent calls a low-current regime, and they state that spluttering with discharge voltages greater than a certain amount can be undesirable because they can increase the probability of arcing, similar to the other patents that we talked about.

[00:40:46] Speaker 01:
In column 18, the specification talks about the gap that you heard about earlier in figure nine between the anode and the cathode and states that the gap can reduce the probability that an electrical breakdown condition, i.e.

[00:41:00] Speaker 01:
arcing, will develop.

[00:41:02] Speaker 01:
And then in column 20, you have the discussion that says the geometry of the gap phi 14 can be chosen to minimize the probability of arcing.

[00:41:12] Speaker 01:
And finally a column for war where it says the pulse power supply can include circuitry that minimizes or eliminates the probability of arcing.

[00:41:20] Speaker 01:
Now Zahn ceases on half that statement, the words or eliminates.

[00:41:23] Speaker 01:
and argues that it means guaranteeing the complete absence of arcing.

[00:41:27] Speaker 01:
But that's not what the sentence says.

[00:41:28] Speaker 01:
To say that the gap in figure one minimizes or eliminates is not the same as guaranteed elimination.

[00:41:34] Speaker 04:
Can I ask you, let's say hypothetically that we were to either construe probability as different than you construe it, or if that language wasn't in the spec, if the spec used the language clearly, there's no possibility of arcing.

[00:41:48] Speaker 04:
Would the kind of expert testimony that the board relied on here be sufficient to overcome what is arguably clear language in the claim and clear language in the spec?

[00:42:00] Speaker 01:
Well, I think it could be, Your Honor.

[00:42:04] Speaker 01:
It's a hypothetical situation, so I'll work with you on the hypothetical.

[00:42:09] Speaker 01:
Here, the spec is not

[00:42:11] Speaker 01:
at all clear that somebody meant to say there's zero arcing?

[00:42:16] Speaker 04:
I just want to find out what we're really resting on here.

[00:42:20] Speaker 04:
Is it really expert testimony when there's agreement among the experts, hypothetically, that there's no way this is not going to happen 100% of the time?

[00:42:31] Speaker 04:
Is that sufficient to overcome clear claim language and clear specification language?

[00:42:36] Speaker 01:
I think if the specification language was different, let me put it this way, we rely on both.

[00:42:42] Speaker 01:
If the specification language didn't exist and was clear, and they taught how to guarantee the elimination of arcing, and they said, there can never be any arcing, and this will show how you'll never have arcing ever.

[00:42:55] Speaker 01:
If that's what the specification taught, it would be a more difficult argument.

[00:43:00] Speaker 01:
I think we would probably still say, you have to interpret that the way one ordinary skill in the art would,

[00:43:05] Speaker 01:
You'd have to interpret it in the way that's consistent with the principles of science.

[00:43:11] Speaker 01:
The Therasense case, I think, is a good example.

[00:43:14] Speaker 01:
In that case, you had this court construed a claim term which was a fluid, and it was a non-flowing manner.

[00:43:26] Speaker 01:
And the district court had said, well, non-flowing manner means non-flowing manner.

[00:43:30] Speaker 01:
And the principle basis for this court's conclusion to the contrary

[00:43:34] Speaker 01:
Everybody agrees that fluids, like blood in that case, have convective flow.

[00:43:43] Speaker 01:
They just do.

[00:43:44] Speaker 01:
It's a matter of scientific fact.

[00:43:46] Speaker 01:
We're not going to read the claim to read out that scientific fact.

[00:43:50] Speaker 04:
Arguably, this could come up in the context of the district court in an enablement challenge, right?

[00:43:55] Speaker 04:
Because if the experts are right and this is impossible to achieve, then it would be an enablement issue with regard to whether this

[00:44:03] Speaker 04:
that kind of claim is enabled, right?

[00:44:05] Speaker 01:
It would be if it was a district court case.

[00:44:08] Speaker 01:
That's correct, Your Honor, but obviously the ward did not consider that issue.

[00:44:14] Speaker 02:
I think the brief explanation of the science is not very complete.

[00:44:19] Speaker 02:
When you're creating the strongly ion plasma

[00:44:23] Speaker 02:
Is there more than one pulse that's used to create that, or is it a single pulse that is used to create that?

[00:44:30] Speaker 01:
Well, that's one of the issues that's been raised in the case.

[00:44:39] Speaker 01:
Whether there's a single pulse or multiple pulses, there is one pulse that creates a strong ionized plasma, but the point of

[00:44:50] Speaker 01:
that pulse is that it can be additive.

[00:44:54] Speaker 01:
In other words, Zahn makes this argument.

[00:44:55] Speaker 02:
So when you go through this process, it's a single pulse that creates it?

[00:45:02] Speaker 01:
If you actually go through a regular sputtering process in a commercial context, you're going to have multiple pulses and this process is going to go on for a while.

[00:45:11] Speaker 01:
The claim language speaks to a single pulse.

[00:45:18] Speaker 02:
So it would infringe if a single pulse didn't result in arcing, which is possible.

[00:45:25] Speaker 02:
But the problem is that in Wang, also a single pulse could be created without arcing.

[00:45:33] Speaker 01:
Correct.

[00:45:33] Speaker 01:
And Zan's expert explicitly conceded that, that Wang does show pulses that don't have arcing.

[00:45:40] Speaker 01:
And I think that's why Zahn did not adopt his view of Dr. Hartzod's view that's expressed in the record about how to construe the claims.

[00:45:52] Speaker 01:
But to go back to the issue about the weighing, because I think it is one point that's raised in the appellant's brief, which is, does weighing show the single pulse?

[00:46:10] Speaker 01:
And the answer is that it does.

[00:46:21] Speaker 01:
The board relied on Dr. Oversett's testimony that properties such as power are additive, which means they can be combined to produce a desired result.

[00:46:30] Speaker 01:
And Wayne's Figure 6, which is in our brief on page 10, shows a background power of PB and a peak power of PP.

[00:46:38] Speaker 01:
Background power creates and maintains the weakly ionized plasma, and the peak power, when it's added to the background power, creates the strongly ionized plasma.

[00:46:48] Speaker 01:
Now, that is the combination of background power and peak power in Wang's Figure 6 produces a waveform, and that waveform is exactly the same as what's shown in Figure 6 of the 421 patent, and that's also shown in the Boris decision.

[00:47:02] Speaker 01:
And Zahn itself agreed that in the 421 patent, the claimed power supply increases its power output to transition from a weakly ionized plasma to a strongly ionized plasma.

[00:47:11] Speaker 01:
That's exactly what Wang does, and substantial evidence supports the board's conclusion on that point.

[00:47:28] Speaker 01:
Your Honor, in conclusion, I would say that to put this appeal in context, the PTAB reviewed 371 claims of 10 Zahn patents and 35 IPRs.

[00:47:39] Speaker 01:
They exhaustively addressed the issues often dealing with a moving target in terms of Zahn's theories and arguments.

[00:47:46] Speaker 01:
And for reasons that I've explained and for reasons that are set forth in our brief, we believe the decision below should be affirmed.

[00:47:53] Speaker 01:
Unless the court has any further questions.

[00:47:55] Speaker 02:
I have one other question.

[00:47:57] Speaker 02:
Hypothetically, if we were to disagree with you about the public availability of the thesis, are there other grounds for invalidation of the three or four claims that we're talking about that weren't reached by the board?

[00:48:11] Speaker 01:
Well, we believe that the management article itself would also invalidate those claims.

[00:48:22] Speaker 01:
And if this court decided

[00:48:25] Speaker 01:
that the thesis was not available, then one way of resolving that would be to send it back and allowing the court to consider that.

[00:48:33] Speaker 01:
As I said, the only thing that was... Did you argue that before the board?

[00:48:40] Speaker 01:
We didn't, and I'll tell you why.

[00:48:42] Speaker 01:
The reason that we didn't is because, again, Zahn's, the Mausgren thesis was only used for one single point.

[00:48:50] Speaker 01:
There's a figure 3b that shows a graph.

[00:48:53] Speaker 01:
And that graph has, in the caption, it's got a scale.

[00:48:57] Speaker 01:
And it's an oscillogram, and it shows various lines on the graph.

[00:49:04] Speaker 01:
So you can use what's in the caption, and you use, because it says how many volts per division, et cetera.

[00:49:13] Speaker 01:
So you can use those lines to precisely calculate what you need to calculate for purposes of those four claims where the monitoring thesis is an issue.

[00:49:23] Speaker 01:
That same figure is in the Mazgrim article.

[00:49:27] Speaker 01:
It's exactly the same figure.

[00:49:29] Speaker 01:
It's got exactly the same scale.

[00:49:31] Speaker 01:
The only thing that's missing from it are those lines.

[00:49:35] Speaker 01:
And the lines allow you to make a precise calculation.

[00:49:39] Speaker 01:
And that's what we did.

[00:49:39] Speaker 01:
We made the precise calculation.

[00:49:41] Speaker 01:
But you could take almost any reasonable view of what that scale is, like it's all one division or it's multiple divisions.

[00:49:49] Speaker 01:
And we believe they would all still produce

[00:49:51] Speaker 01:
the same result.

[00:49:52] Speaker 01:
It would still produce a mathematical result that's within the scope of those four dependent claims.

[00:50:00] Speaker 01:
That's the only reason the module thesis was used.

[00:50:02] Speaker 01:
We didn't make that argument below because we wanted to make the precise argument, but certainly that was before the... You didn't make the argument because you wanted to make it more precise.

[00:50:12] Speaker 02:
What prevented you from making it as an alternative argument?

[00:50:17] Speaker 01:
There was no reason to make an alternative argument here.

[00:50:19] Speaker 01:
At the time, and remember that Zahn's position on the Mazgrin thesis has changed.

[00:50:23] Speaker 01:
It started off by saying, well, it's in Russia, and so it's not publicly available.

[00:50:27] Speaker 01:
And the board relying on cases from this court said, no, it's just because it's in a foreign country does not, by default, make it not publicly available.

[00:50:35] Speaker 01:
And Zahn's next argument was, well, that 1994 date, that's not really 1994.

[00:50:40] Speaker 01:
That could be a date that just somebody put on there at the imprint date, and the board

[00:50:46] Speaker 01:
reached that argument and said, well, no, in common parlance means the date of publication, and we believe that's what it means here.

[00:50:54] Speaker 01:
So it was only very late in the proceedings where Zong raised this argument, and at that point, all of the expert declarations were already in, the petition had already been drafted, and because the

[00:51:10] Speaker 01:
The calculation from the logic and thesis was precise.

[00:51:13] Speaker 01:
It didn't have any speculation about how you should do the scale.

[00:51:19] Speaker 01:
It seemed to us the best way to approach that.

[00:51:22] Speaker 01:
Had we known at the beginning all the arguments that Zahn was going to raise, I'm sure we would have done it that way.

[00:51:28] Speaker 01:
But we didn't do it that way.

[00:51:28] Speaker 01:
And I think it would be manifestly unfair in these circumstances to exclude us from being able to do that on remit.

[00:51:37] Speaker 04:
Thank you.

[00:51:51] Speaker 03:
Your Honor, there was discussion with the appellee concerning the issue of a single pulse versus multiple pulse.

[00:52:00] Speaker 03:
And this goes to the heart of the claims in the 421 patent, which are somewhat different than the claims that we discussed earlier concerning 155.

[00:52:11] Speaker 03:
Claims in the 421 patent, this is the subject of the 1423 claims in the 421 patent.

[00:52:21] Speaker 03:
recite a voltage pulse that creates a weakly ionized plasma and then a strongly ionized plasma from the weakly ionized plasma without an occurrence of arcing.

[00:52:32] Speaker 03:
Now the board read that to mean that, well, the without occurrence of arcing language only applies to the strongly ionized plasma.

[00:52:43] Speaker 03:
And that's simply incorrect.

[00:52:45] Speaker 03:
This claim is speaking to a single pulse creating both the weakly ionized plasma

[00:52:51] Speaker 03:
and the strongly ionized plasma, both without the occurrence of arcing.

[00:52:55] Speaker 03:
We know this because the use of the word and indicates that it is both plasmas that are affected by the creation.

[00:53:07] Speaker 03:
And the phrase without an occurrence of arcing is how that creation is done.

[00:53:12] Speaker 03:
That's the prepositional phrase that modifies the term create.

[00:53:17] Speaker 03:
So this is a rather different claim than the one we looked at earlier.

[00:53:21] Speaker 03:
And here the contract with Wang is even more striking.

[00:53:30] Speaker 03:
There was reference to Wang's figure six embodiment, but even the petitioner's own expert testified that Wang does not show the creation of the weakly ionized plasma in the ignition phase.

[00:53:46] Speaker 03:
In fact,

[00:53:48] Speaker 03:
This is in the 1423 appendix at pages 68, 37, and 38.

[00:53:56] Speaker 03:
And the figure is reproduced in our brief for that appeal at page 47.

[00:54:02] Speaker 03:
The annotations that appear are those of the petitioner's expert.

[00:54:08] Speaker 03:
And you can see that the figure doesn't even speak to the ignition phase and the creation of the weakly ionized plasma.

[00:54:14] Speaker 03:
And the expert himself has indicated that, well, yeah, during that phase, there may be arcing.

[00:54:20] Speaker 03:
So the claims in 421 are even further away from what is taught by Wang than what we spoke of earlier.

[00:54:31] Speaker 03:
Your Honors.

[00:54:32] Speaker 02:
If we were to hypothetically rule in your favor on the public availability of the thesis as to these three or four claims, should we

[00:54:44] Speaker 03:
You should reverse, Your Honor.

[00:54:45] Speaker 03:
That was the only evidence relied upon below.

[00:54:48] Speaker 03:
It was the only evidence that the Board's decision spoke to.

[00:54:52] Speaker 03:
And since if the Mosquin thesis is not available as prior art, the finding... When was this publicly available argument raised for the first time in the proceeding?

[00:55:04] Speaker 03:
It was initially raised in the patent owner's

[00:55:07] Speaker 03:
preliminary response and raised again in the patent owner's response.

[00:55:11] Speaker 02:
No, but I mean the specific argument we're talking about now, apparently you first argued that it wasn't publicly available because it was in Russia, right?

[00:55:20] Speaker 03:
That was included, but we also argued it was not publicly available because of the lack of evidence by the petitioner.

[00:55:27] Speaker 02:
Where is that in the appendix?

[00:55:30] Speaker 03:
Let me find it for you.

[00:55:41] Speaker ?:
Thank you.

[00:56:38] Speaker 03:
I'm looking, Your Honor, in the appendix for the 1423 appeal, page 514.

[00:56:49] Speaker 03:
And we indicate in that paragraph that's excerpted from our response that neither the petition nor the board's institution decision demonstrates the thesis was disseminated or otherwise made available.

[00:57:04] Speaker 03:
Ford found the thesis was prior based upon an imprint date appearing on a catalog entry.

[00:57:10] Speaker 03:
However, petitioners provided no evidence.

[00:57:13] Speaker 03:
The phrase imprint, Moscow 1994, means the Moskvin thesis was cataloged on that date.

[00:57:19] Speaker 03:
And then there's the argument about Russia, which we're not raising here.

[00:57:25] Speaker 03:
Okay.

[00:57:29] Speaker 03:
Your Honor, really that was

[00:57:31] Speaker 03:
what I wanted to bring to your attention.

[00:57:33] Speaker 03:
I'm happy to take any further questions, otherwise we'll trust the matter to your sound judge.

[00:57:39] Speaker 03:
Thank you.