[00:00:52] Speaker 04: Okay, the next argument case is number 17, 2035, A. Schulman Incorporated against Poly One Corporation. [00:01:01] Speaker 04: Mr. Cohen, when you're ready. [00:01:04] Speaker 00: Thank you, Your Honor. [00:01:12] Speaker 00: The district court's decision in this case should be reversed because there is not clear and convincing evidence that different methods of [00:01:22] Speaker 00: Measuring distinctiveness of image or DOI produced different results the district court The ASTM Your honor does not say that different methods produce different results To the contrary it says that scale values are different It doesn't say to what degree scale values are different [00:01:51] Speaker 00: And that's important. [00:01:52] Speaker 00: The ASTM study is a study that was dated in 1995, if you look at the first page of the ASTM study. [00:02:03] Speaker 00: And it may well be that at that point in time, that different methods, that the scale values of different methods were different. [00:02:14] Speaker 00: But at the time of the invention, [00:02:18] Speaker 00: General Motors had approved four different instruments for measuring DOI. [00:02:24] Speaker 00: According to Poly One's expert, each of those instruments used a different one of five different methods that Poly One's expert identified. [00:02:34] Speaker 00: So she identified five methods that existed at the time of the invention for measuring DOI. [00:02:41] Speaker 00: The General Motors approved instruments used four of those methods. [00:02:47] Speaker 00: And General Motors had approved four instruments, each using a different method. [00:02:52] Speaker 00: This is 10 years after the ASTM standard. [00:02:56] Speaker 00: would general motors have? [00:02:58] Speaker 03: Mr. Cohn, when I look at the claims and specification, this looks like the kind of thing that one skilled in the art would know how to do it. [00:03:09] Speaker 03: But your argument reveals, in your brief, reveals the weakness of your position, because you keep referring to GM 9508. [00:03:24] Speaker 03: which isn't a DOI indication, that relates to a gravillometer. [00:03:32] Speaker 00: That's true, Your Honor. [00:03:34] Speaker 00: QM9508P, however, requires the person skilled in the art read QM4348M. [00:03:41] Speaker 00: You have to know which of two methods to use. [00:03:44] Speaker 02: QM4348M on the second page... The reference isn't to the methods for measuring DOI, it's just the areas where it's going to be measured. [00:03:52] Speaker 00: That's true, Your Honor. [00:03:54] Speaker 02: Zones. [00:03:55] Speaker 00: Zones. [00:03:56] Speaker 00: But a person skilled in the art would have been aware of the requirements of the auto industry. [00:04:02] Speaker 00: There's unrefuted testimony to that. [00:04:06] Speaker 02: Wait, unrefuted testimony? [00:04:08] Speaker 02: Where's the unrefuted testimony that someone skilled in the art would have known to use a particular method here? [00:04:22] Speaker 00: Two things. [00:04:22] Speaker 00: First of all, General Motors 434 AM says we approved four different instruments for measuring DOI. [00:04:30] Speaker 00: They were commercially available instruments. [00:04:32] Speaker 00: As Judge Laurie pointed out, this is a measurement that had been done in the auto industry for years. [00:04:40] Speaker 00: So at the time of the invention, the evidence... You're not answering my question. [00:04:45] Speaker 02: Where is the testimony? [00:04:47] Speaker 02: that someone skilled in the art would look at either the GM methods in the aggregate or a specific GM method? [00:04:56] Speaker 00: Our expert testified that a person skilled in the art would look at GM 4348M. [00:05:02] Speaker 00: But even if that's not correct, let's just look at GM 4348M for [00:05:10] Speaker 00: evidence of what was commercially available at the time of the event. [00:05:13] Speaker 02: Well, what your expert says, if you look at page 346, he says, based on my experience, a POSA would look to GM 4348M to determine the instruments to use to measure DOI in order to qualify a part for GM. [00:05:29] Speaker 02: That is not the issue here, is not whether someone would look to this to qualify a part for GM. [00:05:36] Speaker 02: This is a different context. [00:05:39] Speaker 00: Fair enough, Your Honor. [00:05:41] Speaker 00: But what does GM 4348M evidence? [00:05:44] Speaker 00: It evidences that there were four commercially available instruments for measuring DOI, and each of those used a different method. [00:05:51] Speaker 00: There is no evidence in this record that there was any other commercially available instrument that was used to measure DOI at the time of the invention. [00:06:02] Speaker 00: So what did a person of ordinary skill in the art care about what method was used to measure DOI? [00:06:09] Speaker 00: There's really no evidence of that. [00:06:12] Speaker 02: GM4348M says... No evidence that someone would care which method was used? [00:06:16] Speaker 00: They care what instrument. [00:06:17] Speaker 02: That seems to me somewhat short of saying that the expert would know what, that a POSA would know what method to use. [00:06:25] Speaker 00: The POSA would want to know what instrument to use. [00:06:28] Speaker 00: There's commercially available instruments out there to measure DOI. [00:06:31] Speaker 02: If you look at the Ford's... When did your experts say that someone would know [00:06:35] Speaker 02: which instrument to use or what method to use. [00:06:38] Speaker 02: I don't see that in the context of this pattern. [00:06:42] Speaker 00: But the question is, what would a person of ordinary skill and the art have known to use at the time of the invention? [00:06:49] Speaker 03: That requires evidence, which is lacking. [00:06:53] Speaker 00: The proof is GM4348M. [00:06:56] Speaker 03: Which relates to zones? [00:06:58] Speaker 00: No, which specifies [00:07:01] Speaker 00: on the second page that there are four different instruments for measuring DOI. [00:07:08] Speaker 00: So there were four different commercially available instruments to measure DOI at the time of the invention. [00:07:14] Speaker 00: There is no evidence that there were any other instruments that were used to measure DOI at the time of the invention for any industry. [00:07:22] Speaker 00: Forget the auto industry. [00:07:25] Speaker 00: Those are the instruments, that's the evidence. [00:07:27] Speaker 02: So what does... And there are different methods you can use with each of those instruments, right? [00:07:32] Speaker 00: Each of the instruments uses a different method according to their expert. [00:07:37] Speaker 02: And there are multiple methods that you can use with a particular instrument? [00:07:42] Speaker 00: No, each instrument uses a single method. [00:07:45] Speaker 02: I thought that the calibration and the... [00:07:48] Speaker 02: analysis of the results was different and that there was evidence in this record saying that even with respect to a single instrument that you could use a different approach. [00:08:00] Speaker 00: There is not evidence that even with a single instrument you could use a different approach, your honor. [00:08:06] Speaker 00: Calibration, every time you measure something with an instrument, you have to calibrate the instrument. [00:08:14] Speaker 00: I mean, every instrument comes with manufacturer's instructions telling you how to calibrate [00:08:19] Speaker 00: Calibration is an infringement issue. [00:08:21] Speaker 00: It's not an indefiniteness issue. [00:08:24] Speaker 00: At the time of the invention, there were four instruments that were used to measure DOI. [00:08:29] Speaker 00: Their expert says each of those instruments use a different method. [00:08:33] Speaker 00: Okay, so if General Motors approves four instruments each using a different method, how can those methods yield different results? [00:08:41] Speaker 00: Why would General Motors have approved four instruments each using a different method [00:08:46] Speaker 00: If the results were different, it doesn't make any sense. [00:08:48] Speaker 00: No, ASTM does not say that those four instruments produce different results. [00:08:57] Speaker 00: ASTM... It says 10 years before GM434AM was issued, and by which time the instruments were different. [00:09:15] Speaker 00: So 1995, ASTM looks to a bunch of instruments, two of which were Japanese instruments, and there's no evidence that they were used at the time of the invention, and says the scale values disagree. [00:09:32] Speaker 00: So what is that evidence of? [00:09:33] Speaker 00: The scale values disagree. [00:09:35] Speaker 00: It also says on the very next page, and let me get to this because this is important, on the very next page, [00:09:45] Speaker 00: Appendix 543, paragraph 4, it says the values obtained by the measuring procedures given in these methods generally correlate well with visual ratings for DOI. [00:10:00] Speaker 00: Now, the globe box, which is one of the instruments identified in 4348M, was a visual method of determining DOI. [00:10:11] Speaker 00: So it's saying on the one hand, scale values disagree. [00:10:14] Speaker 00: On the other hand, it's saying that these methods correlate well with visual ratings. [00:10:18] Speaker 00: So how different are the scale values? [00:10:21] Speaker 00: So that's not, and I think there's some confusion in the record here. [00:10:26] Speaker 00: There were only, their expert identified five different methods. [00:10:32] Speaker 00: There were only five different methods. [00:10:35] Speaker 00: So there may be different standards and everything, but five methods of those five methods that existed [00:10:41] Speaker 00: at the time of the invention for measuring DOI, four of them were used by the GM approved instruments, one for each instrument. [00:10:50] Speaker 00: And General Motors approval must mean that each of those instruments gives an equivalent result. [00:10:58] Speaker 00: This is 10 years after ASTM. [00:10:59] Speaker 03: Does the specification indicate that those several methods should be used? [00:11:09] Speaker 00: The specification does not say in height Berber which method to use, but there were only five. [00:11:14] Speaker 03: Not even close. [00:11:16] Speaker 00: It doesn't. [00:11:17] Speaker 00: That's correct, Your Honor. [00:11:19] Speaker 00: But it doesn't have to, according to this court's precedent. [00:11:22] Speaker 00: And there were four instruments, and they all produced it. [00:11:26] Speaker 00: If you look at what the GM approval means of these four instruments, each using a different method, [00:11:32] Speaker 00: What could it mean except that they produce equivalent results? [00:11:35] Speaker 02: Well, it's telling that when your expert addressed this question, he said that only two of them produced equivalent results. [00:11:42] Speaker 00: He had used two. [00:11:44] Speaker 02: He had person... Is that not correct? [00:11:46] Speaker 00: That is... Your Honor, he didn't say that... Is that correct? [00:11:50] Speaker 00: That is correct, but he did not say that the other two methods produced different results. [00:11:55] Speaker 00: He had personal knowledge of two of the instruments, Dr. Goslin, [00:11:59] Speaker 00: had no personal knowledge of any of the four instruments. [00:12:02] Speaker 00: There's no evidence that she ever examined the instruments. [00:12:04] Speaker 00: There's no data showing that if the scale values are different, how different are they? [00:12:10] Speaker 00: I mean, just to say that scale values are different, the scale is something that an instrument uses. [00:12:17] Speaker 00: How different are they? [00:12:18] Speaker 00: Are they different by one? [00:12:19] Speaker 00: Are they different by 10? [00:12:20] Speaker 00: Are they different by a half? [00:12:22] Speaker 00: Are they different in the entire scale, or are they only different in one end? [00:12:27] Speaker 00: I mean, there's no evidence of that. [00:12:29] Speaker 00: There's no evidence that to say the scale values are different does not tell us that these different methods yield significantly different results. [00:12:38] Speaker 00: I'd like to reserve the rest of my time unless the court has further questions. [00:12:51] Speaker 01: Good morning, Your Honor. [00:12:52] Speaker 01: Various representations have just been made in the oral argument [00:12:56] Speaker 01: I'm afraid, simply are not supported by the evidence. [00:12:59] Speaker 01: If you look at Dr. Goslin's two reports, there's a total of 17 pages. [00:13:04] Speaker 01: And quite frankly, it's painful to read. [00:13:05] Speaker 01: It's incredible detail. [00:13:07] Speaker 01: It lays out the differences between all of the various tests for DOI in, as I said, excruciating detail. [00:13:14] Speaker 01: And that's what counts here. [00:13:16] Speaker 01: And their claim that you can somehow go to the GM 4348 like it's magic simply doesn't make sense. [00:13:24] Speaker 04: Because they all produce [00:13:26] Speaker 04: results very close to each other in the same range. [00:13:31] Speaker 04: What concerns me is we'd be building a body of precedent. [00:13:36] Speaker 04: Let's say that you have a case of melting point. [00:13:41] Speaker 04: And so it depends on what thermometer you use. [00:13:43] Speaker 04: Are we now saying that every patent specification is going to have to be encumbered by saying what kind of thermometer a technician used? [00:13:53] Speaker 01: If they come up with different numbers, yes. [00:13:55] Speaker 04: That's my question for you. [00:13:58] Speaker 04: If I gather that there was not a lot of evidence or testimony that these all come up with numbers in about the same range and tell you about the same information about DOI, because nobody argued about that. [00:14:16] Speaker 01: Well, this report was quite clear that a single digit between 69 and 70 [00:14:23] Speaker 01: was significant because it meant the difference between infringement and non-infringement. [00:14:28] Speaker 01: And that's the point here is that we have the ASTM saying things come out differently, be careful. [00:14:34] Speaker 01: We have the testimony of Mr. Leggett, the man who they hired to actually run the tests. [00:14:39] Speaker 01: And by the way, Mr. Leggett shows how important that particular GM thing is because he actually used GM 9101. [00:14:47] Speaker 01: So there are not five but a dozen because they went to the patent office with [00:14:52] Speaker 01: While they're telling the district court, 43, 48, they're going to the patent office with other ones. [00:14:58] Speaker 01: So there's a whole thing here of these all can be different. [00:15:02] Speaker 01: And that's clear from the declaration of Dr. Goslin. [00:15:06] Speaker 01: And I point out that in the Dow case, the word may was used. [00:15:10] Speaker 01: They may be different. [00:15:11] Speaker 01: Sometimes they are different, sometimes they are not. [00:15:14] Speaker 01: But the point is that they can indeed come out in different numbers because three of the things are digital. [00:15:22] Speaker 01: And they use different wavelengths and different things and everything. [00:15:25] Speaker 01: So what you end up having is, you know, one will give you a 68 or a 69, and the other one, what's called the Glowbox, is basically you have a kind of a correlation thing here. [00:15:35] Speaker 01: You kind of look at it, you go like this, and you look back and forth, and, you know, it's like, you know, American Bandstand, you know, I give it a 70. [00:15:43] Speaker 01: So that's where the big difference here is. [00:15:46] Speaker 01: And I think what's very important in this case is that we have to review this [00:15:50] Speaker 01: these facts on clear error by the district court. [00:15:53] Speaker 01: She went through these various different protocols we all gave her. [00:15:57] Speaker 01: Dr. Goslin's 17-page declaration. [00:16:00] Speaker 01: And when you look at it with clear error, there are a series of findings, and we set these forth in our brief on pages five and six. [00:16:08] Speaker 01: And they have to show that there's clear error for all of those to overturn. [00:16:12] Speaker 01: So I think it's very important that we also be careful about the case law. [00:16:19] Speaker 01: which sometimes they want to conflate that it has to be clear and convincing evidence. [00:16:24] Speaker 01: First of all, the judge twice cited clear and convincing evidence as the standard on page eight of the opinion, number one. [00:16:31] Speaker 01: But number two is there's evidence that you look at for purposes of doing a claim construction. [00:16:38] Speaker 01: That is looking at the evidence, collecting the evidence, and then making a legal interpretation. [00:16:43] Speaker 01: In our brief, that's the blue box, the blue room. [00:16:47] Speaker 01: Then there's the other thing where, for example, you have other cases where you do, now you have the claims construed. [00:16:55] Speaker 01: But now you have a situation where you're applying that construed item to determine whether it is. [00:17:01] Speaker 01: And one of the things that we have to keep in mind. [00:17:03] Speaker 02: I don't think it serves your interest to argue against a clear and convincing evidence standard here. [00:17:08] Speaker 02: I'm sorry? [00:17:09] Speaker 02: I don't think it serves your interest to argue about the clear and convincing evidence standard, which is what the district court applies. [00:17:17] Speaker 01: That's correct, Your Honor. [00:17:19] Speaker 01: But you look at it with reasonable certainty. [00:17:22] Speaker 01: So our view is that when you look at the evidence that's there, and the judge below did look at the evidence, and she walked through it very carefully, and also said that their expert position was a bare conclusion. [00:17:37] Speaker 01: And as you properly pointed out, Judge Dyke, that his declaration said that if you're doing this for a GM part, [00:17:46] Speaker 01: You can use these, too, that I know about. [00:17:48] Speaker 01: And in our situation, what we have is Dr. Goslin is very experienced, and her background is there. [00:17:57] Speaker 01: And she discusses all of these things. [00:17:59] Speaker 01: They're attempting to use the fact that she cited two references to specifically show where she got the various numbers from. [00:18:07] Speaker 01: And somehow, that means she doesn't know the equipment. [00:18:10] Speaker 01: That was basically to support her position that, yeah, these numbers are actually taken from the [00:18:15] Speaker 01: from the materials for these things. [00:18:21] Speaker 01: So I think what we're looking at is a situation where, when you look at it from a clearer standpoint, I believe Judge Gahn was correct. [00:18:32] Speaker 01: I believe each of the findings she made were correct. [00:18:35] Speaker 01: And the evidence that's there, when you compare, for example, what was put down by the experts and the detail and all of that, I believe that we should affirm [00:18:45] Speaker 04: We're talking about validity, not infringement. [00:18:48] Speaker 04: Is that right? [00:18:49] Speaker 04: You keep saying that you need to know the method of measurement in order to establish infringement. [00:18:55] Speaker 01: We need to know, yes, to establish how to construe the claim. [00:18:59] Speaker 01: In other words, we need to know... We're talking about validity. [00:19:02] Speaker 01: What? [00:19:03] Speaker 04: We're talking about validity. [00:19:04] Speaker 04: Let's say that every measurement produces a DOI over 80, whereas the claim puts a limit at 70. [00:19:15] Speaker 04: So in that case, there would be no question about infringement. [00:19:20] Speaker 04: Isn't that right? [00:19:22] Speaker 01: I would say that if you look at our brief, we do talk about the blue room and the red room. [00:19:25] Speaker 01: What you're talking about, I believe, is in the red room when you're determining whether there's infringement. [00:19:31] Speaker 04: No, I thought that that's what I heard you say, whereas the case was decided on validity. [00:19:38] Speaker 04: Isn't that correct? [00:19:39] Speaker 01: The validity was because the court could not construe the claim. [00:19:45] Speaker 01: In other words, in my mind, it's a different situation. [00:19:49] Speaker 01: That she, in her mind, looking at the evidence, in her mind, clear and convincing, that she was not able to construe the claim. [00:19:55] Speaker 01: And therefore, we don't go farther. [00:19:57] Speaker 01: Sort of like we just had an argument here about a 101 situation. [00:20:01] Speaker 01: If you can't get beyond a certain point in the case, that's it. [00:20:09] Speaker 04: Because you see what's troubling me, that every standard measurement [00:20:14] Speaker 04: that you can find in the ASTM, and it's within those parameters, needs to be put in the specification. [00:20:21] Speaker 04: I don't believe that that's the law. [00:20:23] Speaker 01: Well, all they... I'm sorry, Your Honor. [00:20:26] Speaker 01: All they had to do was to put one in this case, one in the patent application. [00:20:31] Speaker 02: And this was sort of addressed... It doesn't have to be in the application. [00:20:33] Speaker 02: You could have testimony that someone skilled in the art would know this is the right measurement method to use. [00:20:40] Speaker 02: And there isn't any such testimony. [00:20:41] Speaker 01: That's correct. [00:20:42] Speaker 01: This is the one to use. [00:20:44] Speaker 01: And Judge Breyer and I4I brought up the problems as well as there are other citations we have in there where, for lack of a better describe it, allowing ambiguity like this is gaming the system. [00:20:56] Speaker 01: And that's the problem. [00:20:57] Speaker 01: They should have put in there, just use this test, and we wouldn't be arguing today. [00:21:03] Speaker 01: It's that simple. [00:21:04] Speaker 01: And who are we going to put the burden on? [00:21:07] Speaker 01: It's like in a contract case. [00:21:08] Speaker 01: They wrote it. [00:21:09] Speaker 01: They should have written it in there. [00:21:11] Speaker 04: But if a person of ordinary skill in the field would know which test to use, why does it have to be in the spec? [00:21:19] Speaker 01: That's correct, Your Honor. [00:21:20] Speaker 01: If somebody of ordinary skill in the arts says, you used this one test, that would be that. [00:21:24] Speaker 01: But that's not our fact situation here. [00:21:26] Speaker 04: And we're told there were two tests. [00:21:28] Speaker 01: No. [00:21:29] Speaker 04: At that time. [00:21:30] Speaker 01: We had 12 in our evidence. [00:21:34] Speaker 01: They only had, even if you accept that you're going to use the 4348, [00:21:40] Speaker 01: There are four tests. [00:21:41] Speaker 03: What you're saying is that there are two ways to satisfy the requirement, either by putting it in the spec or by showing in litigation that one skilled in the art would know what that means. [00:21:58] Speaker 01: Which one to pick? [00:21:58] Speaker 01: Yes, sir. [00:22:02] Speaker 03: And you're saying neither one has been met? [00:22:05] Speaker 01: Neither one is here because, as I said, [00:22:07] Speaker 01: Even if you accept that 4348 has four tests, they work differently. [00:22:12] Speaker 01: What they did to test for infringement was still a fifth test. [00:22:16] Speaker 01: They went to the patent office with several other tests. [00:22:18] Speaker 01: So they even brought a meter with them to show the examiner in an interview what it was. [00:22:23] Speaker 01: And that's not one on the list. [00:22:24] Speaker 01: So it's, they're using different tests in different situations. [00:22:29] Speaker 01: So I don't see how they can argue that one of ordinary scionaires would pick one test in this case. [00:22:37] Speaker 01: Finally, if I might, in their reply brief on page 28, they referenced the fact that the PTO had issued a final rejection of these claims because of the DOI. [00:22:53] Speaker 01: And in there, they represented to this court that they would contest that rejection. [00:22:58] Speaker 01: What has happened is they have withdrawn the DOI from those claims and acquiesced in the examiner's position. [00:23:07] Speaker 01: And for that reason and the other reasons I've discussed, I believe this court should affirm the judgment below. [00:23:17] Speaker 00: Thank you, Your Honor. [00:23:24] Speaker 00: First of all, I'd like to correct a misimpression that I may have given. [00:23:29] Speaker 00: Our expert testified, and I'm looking at appendix page 841. [00:23:36] Speaker 00: Paragraph 12, quote, a person of ordinary skill in the art as of May 5, 2008 would have looked to GM 4348M, the standard identified in GM 9508P and would have used any of the approved instruments in G8 4348M to measure DOI. [00:23:55] Speaker 00: GM 4348M dated June 2005 was in effect on May 5, 2008. [00:24:01] Speaker 00: As of May 5, 2008, [00:24:04] Speaker 00: person with an ordinary skill in the art would have consulted GM4348M and not earlier versions to determine the approved equipment to measure DOI. [00:24:13] Speaker 00: Now, GM9101P that my friend mentioned is an earlier version. [00:24:19] Speaker 00: It's instructions on how to use one of the four instruments. [00:24:22] Speaker 00: He goes on to say, even if the four different approved devices may have eShielded different DOI results as Dr. Goslin implies, [00:24:31] Speaker 00: any such differences were within the range of tolerance. [00:24:34] Speaker 00: Tolerance is a DOI measurement permitted by GM. [00:24:37] Speaker 00: In my experience, the use of any of the instruments listed in GM 4348M was acceptable to GM and other auto manufacturers as of May 5, 2008, the date of the invention. [00:24:52] Speaker 00: and other auto manufacturers. [00:24:55] Speaker 02: Why is that the test for patentability that his view would be acceptable to GM to have different results? [00:25:02] Speaker 00: I didn't say just GM. [00:25:04] Speaker 00: I said and other auto manufacturers. [00:25:08] Speaker 00: Why is that the test? [00:25:11] Speaker 00: It's a test what would a person of ordinary skill in the art have looked to. [00:25:15] Speaker 00: That is evidence of what a person of ordinary skill in the art would have looked to. [00:25:20] Speaker 00: And I come back [00:25:21] Speaker 00: to the proposition that there were four instruments in this record identified at the time of the invention for measuring VOI. [00:25:31] Speaker 00: And GM's approval means they produce equivalent results. [00:25:35] Speaker 00: The only evidence to the contrary is the bare statement that scale values of different methods do not agree by how much. [00:25:45] Speaker 00: That's not clear and convincing evidence that different methods produce different results. [00:25:50] Speaker 00: We have the Takeda case that says if the results, if you have different method measurements, the results must be significantly different. [00:25:59] Speaker 00: That's just common sense. [00:26:01] Speaker 00: If I take a measurement with two instruments and one says 9.1 and the other says 9.2, that may or may not be a significant difference depending on the situation. [00:26:13] Speaker 00: There's no evidence here. [00:26:14] Speaker 00: There's no quantitative evidence of any differences between these methods. [00:26:20] Speaker 00: There's a bare statement in a 1995 report, which may or may not have been reflective of what happened with these four instruments in 2005. [00:26:31] Speaker 00: But that shouldn't be clear and convincing evidence that different methods yield different results. [00:26:36] Speaker 00: And it shouldn't be clear and convincing evidence that a person of ordinary skill in the art would not have known how to measure. [00:26:43] Speaker 00: The evidence, and this comes in part from Dr. Goslin, who's talking about [00:26:48] Speaker 00: She talks about Mazda wants to use this instrument. [00:26:51] Speaker 00: Ford wants to use this instrument. [00:26:54] Speaker 00: She doesn't give a date on when Mazda wanted to use the instrument, but in any event, that instrument, according to her, was equivalent to use the same method as one of the GM approved instruments. [00:27:04] Speaker 00: The evidence is, persons skilled in the art asked, what instrument do I use to measure this? [00:27:11] Speaker 00: They didn't ask what method. [00:27:13] Speaker 00: Their expert asks what method. [00:27:17] Speaker 00: But at the time of the invention, a person skilled in the art asked, what instrument do I use? [00:27:24] Speaker 00: The distinctiveness of image has been measured in the auto industry for at least 30 years prior to this date. [00:27:31] Speaker 00: It's a standard measurement. [00:27:33] Speaker 00: It's not a measurement that's created for the purposes of patent, as was the case in Dow. [00:27:39] Speaker 00: This is something that's done all the time. [00:27:41] Speaker 00: And was it left out of the specification? [00:27:46] Speaker 00: Sure it was. [00:27:47] Speaker 00: We don't dispute that. [00:27:49] Speaker 00: But the law in this circuit is you don't have to put in the specification what a person of ordinary skill in the art would know. [00:27:58] Speaker 00: There has been, I want to comment on the district court's discussion of the difference between measuring 69 and 70. [00:28:08] Speaker 00: The district court took Mr. Leggett's testimony that there was an instrument, the glowbox, [00:28:16] Speaker 00: measures in units of five and other instruments measure in units of one. [00:28:23] Speaker 00: They give a digital readout. [00:28:24] Speaker 00: The globe box is a visual method. [00:28:27] Speaker 00: What difference does that make? [00:28:29] Speaker 00: Well, if in a particular case, if you have a reading around 70 and the claim says a DOI of at least 70, it might not be appropriate in that case to use the globe box because it doesn't give you a precise enough measurement. [00:28:45] Speaker 00: That's not the case here. [00:28:47] Speaker 00: The readings are either 90 or 95. [00:28:49] Speaker 00: It's in the record. [00:28:50] Speaker 00: But I think a person with an ordinary skill in the art would know when to use an instrument that gives a more precise measurement and when that isn't required. [00:29:04] Speaker 00: And so to jump to the conclusion, and there's no expert testimony supporting this, that [00:29:11] Speaker 00: Because one of the instruments measures an integer as a five and the other measure an integer as a one, that that means that the claim is indefinite. [00:29:19] Speaker 00: There's no basis for that. [00:29:23] Speaker 00: Your Honor, I see that my time is up. [00:29:25] Speaker 00: And unless the court has any questions. [00:29:28] Speaker 04: Any questions? [00:29:30] Speaker 04: OK. [00:29:30] Speaker 04: Thank you. [00:29:31] Speaker 04: Thank you, Your Honor. [00:29:32] Speaker 04: The case is taken under submission. [00:29:35] Speaker 04: The matter concludes this panel's morning's arguments.