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Three cases on the calendar this morning are patent cases, one from District Court and two from the PTAB, if I may use an abbreviation.

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Our first case is Baltimore Air Coil Company versus SPX Cooling Technology 2017-13-42, Mr. McDowell.

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May it please the court.

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My name is Jamie McDole, and I represent Baltimore Air Coil Company, also known as BAC.

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BAC asked this court to vacate three of the district court's decisions.

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First, the district court's decision on summary judgment relating to the priority of claims 22 and 26 of the 782 patent.

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Second, the district court's decision to allow the jury to decide an issue of claim scope in violation of O2 micro.

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And third, the district court's decision

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at claim construction to improperly import a uniformity limitation into all asserted claims of the 685 patent.

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I'd like to start with the summary judgment issue relating to priority of claims 22 and 26 of the 782 patent.

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The district court erred when it held that on summary judgment that BAC could not corroborate the sworn testimony of inventor Tom Carter relating to his conceptions of claims 22 and 26.

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That's not corroboration.

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That's the inventor.

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Your Honor, conception is in the mind of the inventor.

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It is the brain that does the work for conception, not the hand.

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But it needs to be corroborated.

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It does, Your Honor.

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And in this very instance, what happened is the district court confused conception and corroboration.

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And VAC offered extensive evidence corroborating Mr. Carter's sworn testimony as to his conception.

[00:02:12] Speaker 01:
I didn't understand.

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I mean, your point was so much confusion.

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I thought it was a question of whether or not all the limitations in the claim needed to be corroborated.

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And there was corroboration for, say for hypothetically, four limitations in a claim.

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There was corroboration for three, but not for the fourth.

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And I understood your argument to be three out of four is enough.

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That's just a draw to the bottom line, right?

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Am I right?

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That's your argument?

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The argument is twofold.

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First, it is undisputed.

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In fact, SPX conceded that we had corroborated five of the six elements of the asserting claims.

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But even if this court were to hold otherwise, there was corroboration of that final element.

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Mr. Carter

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expressly did conversion calculations relating to the two types of fill in October of 2002 as part of his inventive process.

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And if I could point your honors to a particular document.

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There's a different court holding to the contrary, right?

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Different court holding?

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The district court says that that limitation was not corroborated.

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You're correct, Your Honor.

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This is a clear air issue.

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I mean, you're challenging the factual finding?

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Your Honor, I'm challenging the court

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setting forth the improper legal standard and confusing the issue of conception and corroboration in contravention of this court.

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What's the improper legal standard that you're talking about?

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Your Honor, on summary judgment, the question is, could Mr. Carter's oral testimony be credible?

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All inferences are to be drawn in our favor.

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And so if a reasonable jury could consider Mr. Carter's testimony credible, then we should have one on summary judgment.

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And SPX concedes the fact that Mr. Carter's testimony could be credible.

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If I could point your eye for a second.

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Let's assume his testimony is credible.

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That means you believe him.

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So he's corroborating himself.

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Corroboration normally means that I say something, and there is some independent way to corroborate the truth of what I've said, not a question of my veracity or my credibility.

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I agree with that, Your Honor, and we do have documents in this instance that do corroborate Mr. Carter's testimony.

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For example... So then you're arguing that it was clearly erroneous for the District Court to have concluded there was a failure of corroboration on this one limitation.

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I think it's twofold, Your Honor.

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First, I think the District Court held the BAC to a conception standard for corroboration, finding that all elements must have been corroborated.

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legally erroneous to ignore the evidence.

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And I don't think she ignored the evidence, Your Honor.

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I think what happened is she had the wrong standard.

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Because if we look at some of her findings, some of her findings indicate that Mr. Carter's testimony is, in fact, credible, or could be credible, because this is a summary judgment standard.

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at her appendix page 141.

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She made findings that BAC already had a model on the market that used cross-flow fit.

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Credibility is subjective in a sense.

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The corroboration is objective in a sense.

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It's not whether the inventor is credible, or maybe even credible in the expressions of his own thoughts on conception, but it's whether the inventor is corroborated with evidence outside of the head of the

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of the inventor.

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I agree with you, Your Honor.

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That is what corroboration is, that there is independent evidence in documents contemporaneous with the inventive process that would corroborate this testimony and we have provided that.

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I think we understand your point on that.

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Why don't you get to the jury verdict of non-infringement?

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The jury verdict on infringement with respect to issue two.

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This relates to the issue

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of the district court sending an issue of claim scope to the jury.

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And this is a little bit different than O2 Micro, Your Honor.

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This is an instance where the judge decided the issue with respect to the claim scope.

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At claim construction, she rejected SPX's claim construction that threw meant throughout the entire.

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And we raised this again on summary judgment, and she found it was untenable

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to find that there could only be one type of airflow.

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We again raised this issue in motions in Lemonade.

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She did not decide the issue.

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But as we got to trial, SPX started picking away and started putting in more evidence and more argument, arguing the issue of claim scoping.

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After the court refused to provide our jury instruction, which came directly from her claim construction order rejecting SPX's argument, we asked the judge to tell the jury what the claim scope was.

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SPX got up in closing.

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And what did SPX tell the jury they should do after discussing the issue of cross flow fill?

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What did he invent on March 17th?

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He surely invented something.

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We're not denying that.

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But what is it that he invented?

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That is, at Appendix Site 33256, SPX expressly asked the jury to decide the issue of ClaimScope as to what Mr. Carter invented.

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And when the jury was not given the rudder to navigate the currents of the river, it was left to its own devices to decide what the issues of ClaimScope was.

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And the confusing part, I think, for the jury here, Your Honor, is there was no factual dispute.

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The factual dispute.

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And this issue bears on infringement?

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This does not bear on infringement, Your Honor.

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Plaint construction, of course, always bears on infringement to some extent.

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So my point is, what was the consequence of the failure of the judge to construe the claims or the judge letting the jury do it?

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So what's the harm here?

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Did you get invalidated?

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Did you find there was no infringement?

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The jury found there was no infringement, Your Honor, even though the factual dispute that if we look at page 22 of BAC's reply brief, there's a red box in part of the direct fill section.

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Nobody disputes that in the last 12% of that direct evaporative section, there is an airflow.

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This is on the 782 patent.

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This is the 782 patent, Your Honor.

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There is an airflow.

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And it moves generally upwardly through the direct section.

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That, in and of itself, that fact is not disputed.

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So I can see how the district court may have gotten confused that I'm going to send something to the jury to decide.

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But there was nothing left to decide at that point.

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And we again tried to raise this issue on Jamal to the district court after trial.

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And she again denied our request.

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Why don't you tell us a little bit about the 685 patent issue?

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Your Honor, the 685 patent deals with densified coils.

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And the patent discusses what the prior art had.

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At appendix page 90, which is the 685 patent, column 2, lines 20 through 25, the 685 patent explains what the prior art had.

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Pull down has typically been limited to no more than 2 percent of the return bend widths.

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Thus, packing has been limited

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to a density that was typically less than 1.0 and possibly slightly greater than 1.0 up to 1.02 through pull-down.

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However, such increased density was not controllably uniform or precise.

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The 685 patent picked up where the prior art left off.

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There are two sets of claims, one requiring a D to S ratio of greater than 1.02

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and one requiring a D to S ratio of greater than 1.0.

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The 1.0 D to S ratio requires uniformity, just like is explained in the patent with respect to prior arguments.

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Which claim is that?

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The claims 1 and 13, Your Honor, relate to the D to S ratio greater than 1.02.

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And claim 20 relates to the D to S ratio greater than 1.0.

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There it uses a little bit different wording.

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It says D is greater than S.

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But that ratio is D to S greater than 1.0.

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And claim 20 is the one that requires the uniformity.

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But we also know from claim 12, which is dependent on claim 1.

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So I can make a calculation in claim 20 to get to 1.0?

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That's correct, Your Honor.

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And we also know from claim 12, which depends on claim 1, that the inventor added a uniformity limitation to claim 1 through a dependent claim.

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And this court has held that the doctrine of claim differentiation is strongest when we're talking about a dependent claim adding a limitation to an independent claim.

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Now, Your Honor, it's what I'd like to point out here.

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Doesn't the spec talk about preferred embodiments of being uniform?

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Your Honor, it certainly talks about preferred embodiments being uniform.

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But what I would ask this court to do is look at it from a different perspective.

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Where does the patent not talk about uniformity?

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Let's look at the abstract.

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The abstract doesn't say anything about uniformity.

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In fact, it says, substantially equally spaced apart circuits.

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That's not uniformity.

[00:12:06] Speaker 01:
Give me a line on the column, please.

[00:12:08] Speaker 03:
Your Honor, the abstract is at appendix page 81.

[00:12:14] Speaker 01:
Well, it's in the patent, right?

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That is correct.

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I'm looking at the patent.

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Let's have a line.

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column in a line.

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Your Honor, the abstract, I don't believe, has line numbers.

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Or I would be happy to give you one.

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It is the, if we look just at the first sentence of the abstract, on Appendix page 81.

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And where do we say it?

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It says, a heat exchanger coil assembly is made up of arrays of substantially equally spaced apart circumference circuits.

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The entire abstract doesn't say the word uniform, or uniformity.

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If we, what would we... But what does equally array mean?

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Substantially equally, Your Honor, I agree with you that that may be vague as to what that may constitute, but what it doesn't constitute is uniformity.

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Uniformity is the same without variance.

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What about the description of the invention having uniform density?

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What does that mean?

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Your Honor, there is one instance

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of that SPX sites over and over in its brief as part of the field of the invention.

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And if we look at that, and that is that Appendix 90, Column 1, Line 9, SPX is correct that BAC uses the word the invention and discusses uniformity.

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But that's where SPX stops.

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And if we look at the rest of that sentence... Why is S used throughout the invention and not

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And the specification refers to S as being uniform with respect to one of the claims, and maybe not with respect to the others.

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But yet, the same letter S is used throughout in all the different figures.

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Your Honor.

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If it was less than uniform, if S means uniform for one claim, then shouldn't it be like S minus or S plus with respect to the other claims?

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I don't think so, Your Honor, because the uniformity refers to, remember, we're talking about coils that are in three dimensions here.

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And so these serpentine tubes actually make more than one pass over each other.

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And if we have two circuits together, there could be four places where it may touch.

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Uniformity in the patent is talking about the S being the same along those four lines.

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In this instance, along those four places where the circuit touches, I'm sorry.

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The fact of uniformity, let's say we have an S at the top that is half of an inch.

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And then we go down to the next place of contact, and it's 0.45 inches.

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And then we go down to the next place where it touches, and it's 0.42 inches.

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Those all are going to have a different S. They are certainly not uniform, but they are still going to meet that D to S ratio of greater than 1.02.

[00:15:09] Speaker 01:
Well, the problem for you is that the district court in the claim construction read in the claim that S and D are constants.

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They have to be the same throughout the circuit, right?

[00:15:20] Speaker 03:
Yes, Your Honor.

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In fact, she found that not only does it have to be throughout the circuits, but throughout an 80-row coil, everything would have to be exactly the same.

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So the question for us is whether or not that is correct, that the patent requires S and D in claim 1 to be the same, where your argument is that in claim 20, you see that it's different.

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I think that that's required in that case and not in this one.

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That is correct, Your Honor.

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And one of the issues... Help me out a little bit.

[00:15:50] Speaker 01:
On the claim construction came down, there was a stipulation of non-infringement.

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What is it in the accused tubing that doesn't infringe on the claim construction the judge gave?

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So, Your Honor... What do they do?

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Do they... First of all, it's...

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industrial impossibility to do what the district court said.

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I'm just curious in my own mind, why is the accused product not infringing?

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Do they vary the size of S or D?

[00:16:20] Speaker 03:
Yes, Your Honor.

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The D remains constant in SPX's product, but the S does vary throughout the court.

[00:16:26] Speaker 01:
And change the facing?

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Correct.

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And the other part of it is, if you think of these tubes that run across wave return vents, and the tubes will run across 10 or 20 feet.

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Think of that from an industrial standpoint.

[00:16:39] Speaker 03:
These are put together more from the standpoint of, let's say we take paper clips apart.

[00:16:43] Speaker 02:
Council, I think you've exceeded your time.

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So why don't we hear from the other side?

[00:16:48] Speaker 02:
We'll give you two minutes of rebuttal time afterwards.

[00:16:50] Speaker 03:
Thank you, Your Honor.

[00:16:52] Speaker 02:
Mr. Anderson.

[00:16:54] Speaker 03:
Thank you, Your Honor.

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May it please the court.

[00:17:05] Speaker 04:
BAC raised three issues on appeal.

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With regard to the 782 patent, they raised a priority dispute and jury instruction dispute.

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Then with regard to the 685 patent, they raised a claim construction dispute.

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I'll begin with the priority dispute.

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The district court had properly determined that BAC could not meet its burden of proving that Mr. Carter had invented claims 22 and 26 of the 782 patent prior to the July 12, 2004 filing date.

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BAC had alleged that it conceived of all claims on March 17, 2003, but it failed to identify any documents showing a complete conception of all limitations of claims 22 and 26 at any time prior to the filing date.

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Even as of September 2006, six months after the alleged conception, BAC's own correspondence between its patent counsel and its patent draftsman included only descriptions of the counterflow embodiment.

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there was no reference to the cross flow embodiment described in claims 22 and 26, six months after the alleged conception.

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The declaration and the documents that BAC relied on in summary judgment merely show that Mr. Carter had used cross flow fill in some other unidentified context and designs, not that he had conceived of the cross current airflow design of claims 22 and 26.

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BAC actually had six chances

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through Mr. Carter's deposition, his declaration, Mr. Trott's deposition, Mr. Trott's declaration, the expert report of Mr. Welch, and then the expert deposition of Mr. Welch, to try to link the documents that it cited in support of summary judgment to the claims, if failed to do so.

[00:18:41] Speaker 04:
In fact, the declarations that BAC relied on in summary judgment.

[00:18:45] Speaker 00:
Do you think that's all that was necessary for him to make some sort of verbal link at that point?

[00:18:49] Speaker 04:
No, Your Honor, we wouldn't say that.

[00:18:51] Speaker 04:
In fact, there's no link between those documents.

[00:18:53] Speaker 04:
There needs to be more that explains, as we had explained in our briefing.

[00:18:58] Speaker 04:
Mr. Welles, the BAC's own expert, told us that merely referring to cross-flow fill is not enough.

[00:19:05] Speaker 04:
Cross-flow fill does not get you cross-flow airflow direction.

[00:19:08] Speaker 04:
You need to know the context in which the cross-flow fill is applied.

[00:19:12] Speaker 04:
Where are the inlets?

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Where are the outlets?

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Where are the baffles, for example, the walls surrounding the unit?

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And where is the fan?

[00:19:20] Speaker 04:
None of the information that BAC provided gives this context.

[00:19:24] Speaker 04:
In fact, if you were to look at BAC's IDC prototype, which is cited at appendix 4790, even if you had put cross-flow fill into that IDC prototype, you would not get cross-flow airflow, because as Mr. Carter explained at trial,

[00:19:42] Speaker 04:
The inlet is at the bottom.

[00:19:43] Speaker 04:
The outlet is at the top.

[00:19:45] Speaker 04:
And the walls are blocked off, so you can't have air flowing from side to side.

[00:19:48] Speaker 02:
Are you saying there was no conception or no corroboration?

[00:19:52] Speaker 04:
Both.

[00:19:54] Speaker 04:
In this case, there is BAC on summary judgment relied solely on its declarations, which went to the wrong point.

[00:20:01] Speaker 04:
They went to cross-flow fill, not to cross-flow air direction.

[00:20:05] Speaker 04:
So BAC failed step one about conception.

[00:20:08] Speaker 04:
It failed to actually show that it conceived of the limitations

[00:20:11] Speaker 04:
the cross-flow airflow limitations of Plaintiff 22 and 26.

[00:20:14] Speaker 00:
Beyond that... Well, I'm not sure about that.

[00:20:17] Speaker 00:
He, Mr. Carter, testified about investigating counter-fold fields in IDC prototypes and the invention that he would have looked at and he described the relationship between cross-flow and counter-fold high-flow field.

[00:20:33] Speaker 00:
Is that not conception?

[00:20:35] Speaker 00:
I'm not saying it's corroboration, but isn't that conception?

[00:20:38] Speaker 04:
No, Your Honor, it's actually not.

[00:20:40] Speaker 04:
And BAC's own expert explained why not.

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For example, the use of cross-flow fill in and of itself does not give you cross-flow airflow.

[00:20:48] Speaker 04:
And Mr. Welch, for example, when describing BAC's, Mr. Welch being BAC's expert, and describing, for example, the calculation of the fill comparison that plaintiff's counsel referred to in his argument, Mr. Welch specifically said the documents that BAC relied on in summary judgment, including the fill comparison, the table that's cited in BAC's brief,

[00:21:08] Speaker 04:
don't actually show that BAC had used or even contemplated using cross-flow fill in its designs.

[00:21:14] Speaker 04:
The appendix site for that is at 6547 through 8.

[00:21:18] Speaker 04:
But BAC's own expert explained the evidence that BAC was relying on didn't actually show conception and couldn't corroborate conception.

[00:21:27] Speaker 04:
And his testimony and his deposition explained that the statement that BAC relies on, that I knew my inventions can employ either type of fill, went to the wrong issue.

[00:21:38] Speaker 04:
Mr. Carter was explaining.

[00:21:39] Speaker 02:
Corroboration is a question of fact?

[00:21:43] Speaker 04:
Well, corroboration is a question of, sufficiency of corroboration is a question of fact, yes, Your Honor.

[00:21:50] Speaker 04:
But to the extent that in this particular instance, BAC failed to provide any corroboration of the cross-flow limitation.

[00:21:58] Speaker 04:
BAC only provided references to cross-flow documents without ever explaining how the cross-flow fill in those other contexts was used, were used.

[00:22:08] Speaker 04:
So if I have an invention, as Judge Clevenger noted, if I have an invention that consists of elements A, B, C, and D, it's not enough for me to say, in one context, I thought of elements B, C, and D. In an entirely different context, I thought of element A. What BAC never did is explain even to the extent Mr. Carter had thought of using cross-flow fill in what context it was.

[00:22:30] Speaker 04:
So the fact that Mr. Carter had used cross-flow fill in some entirely different context does not establish that he thought of using cross-flow

[00:22:38] Speaker 04:
airflow in the context of claims 22.6.

[00:22:41] Speaker 02:
What about the jury verdict of non-infringement and the argument that the jury was allowed to construe the claims?

[00:22:49] Speaker 04:
Well, I will address that point, Your Honor.

[00:22:52] Speaker 04:
The jury had found that claim 16 was not infringed, even though the district court had told the jury that the only issue that needed to be decided for claim 16 was whether airflow generally upwardly through the direct evaporative section.

[00:23:05] Speaker 04:
And the district court read to the jury verbatim BAC's proposed construction of the term moving air generally upwardly to the direct evaporative section.

[00:23:13] Speaker 04:
BAC now claims that the court aired because it didn't grant BAC's belated request a year and a half after Markman to further construe BAC's own construction and the work through and to add a construction of the term comprising.

[00:23:29] Speaker 04:
But contrary to BAC's arguments,

[00:23:31] Speaker 04:
There was no claim construction dispute, a trial that required the court to weigh in and to provide further construction.

[00:23:39] Speaker 04:
SBX never argued that claims 16 and 22 are mutually exclusive or that air could not flow both up and across.

[00:23:47] Speaker 04:
What SBX's expert testified to is that air does not flow generally upwardly because it flows across and down the direct evaporative section.

[00:23:55] Speaker 04:
And he explained that generally downwardly is the opposite of generally upwardly.

[00:24:00] Speaker 04:
BAC has not, nor can it argue on appeal that you can be both generally upwardly and generally downwardly in the direct section.

[00:24:09] Speaker 04:
BAC's counsel told the jury during closing argument that the issue it needed to decide was whether air went up or air went down, and that there was evidence supporting both conclusions.

[00:24:21] Speaker 04:
The site for that is 33207, 33204 through 6.

[00:24:26] Speaker 04:
Further, BAC's own expert repeatedly admitted that up is not down.

[00:24:30] Speaker 04:
What BAC is actually seeking to do on appeal is to rewrite its own construction to moving air in a generally upward direction through some or a portion of the direct evaporative section.

[00:24:40] Speaker 04:
But that's not what the claim says.

[00:24:42] Speaker 04:
In fact, BAC itself said that the word generally means primarily.

[00:24:47] Speaker 04:
Although it later attempted to back off of that definition and say it was only an alternative construction, BAC had proposed that.

[00:24:55] Speaker 04:
With regard to BAC's assertion that the jury should have found infringement based on the last four inches,

[00:25:01] Speaker 04:
That's also incorrect, because the evidence at trial that was offered show that air consistently left the fill section lower than the height at which it entered, indicating a downward flood.

[00:25:13] Speaker 04:
Sites for that are at 32755 through 57.

[00:25:16] Speaker 04:
There's a special appendix 1 through 2, 327 through 32 through 8, and 32746 through 58.

[00:25:26] Speaker 04:
Moreover, the district court or the jury could have properly concluded that the last four inches were not actually part of the direct evaporative section.

[00:25:34] Speaker 04:
The first few inches and the last four inches are louvers and mist eliminators, which are designed to actually keep water in the system.

[00:25:42] Speaker 02:
What did you tell us about the 685 patent?

[00:25:44] Speaker 04:
Of course, Your Honor.

[00:25:46] Speaker 02:
Yes, indeed.

[00:25:48] Speaker 04:
With regard to the 685 patent, Your Honor,

[00:25:51] Speaker 04:
The district court properly construed the limitation S is thus spacing between each adjacent circuit, to mean that S is the space between every adjacent circuit and the direction of stacking at every point between those adjacent circuits.

[00:26:05] Speaker 04:
BAC sought to rewrite the claim such that an array of 20 coil are suited to 26.

[00:26:10] Speaker 01:
What is it that requires S to be constant?

[00:26:13] Speaker 04:
Here it's the plain language, Your Honor.

[00:26:15] Speaker 04:
For example, we look at this and we see that

[00:26:17] Speaker 04:
The claims don't say some circuits have A spacing S. They say each circuit has the spacing S. There's one value of S. It's referred to as the value of S, not A, indicating one more.

[00:26:30] Speaker 00:
Kennedy Well, but it looks like S, a constant, a constant value.

[00:26:33] Speaker 04:
Well, in the claims, there's actually only one value, and that value is referred to as each.

[00:26:37] Speaker 04:
This is actually very similar to the case that the Court examined in Kattec v. Tubemaster, where the plaintiff had argued in prosecution that each gap

[00:26:46] Speaker 04:
between plates had to have a spacing that was less than the smallest particle.

[00:26:51] Speaker 04:
The court there found that the plaintiff could not later argue that there was only one gap between the adjacent plates that needed to meet the spacing limitation.

[00:26:58] Speaker 04:
This is an almost identical situation here, but here it's actually even stronger because it's the claim language itself that says each claim has to have the spacing S. Why isn't S simply defining that that's what it is?

[00:27:11] Speaker 01:
S is the space between each circuit.

[00:27:15] Speaker 01:
Why does that necessarily mean that the S has to be the same between every circuit?

[00:27:22] Speaker 04:
Well, first of all, the claim language says the spacing S, indicating one spacing.

[00:27:26] Speaker 04:
There's one value of S that's referred to as the spacing S, and it's for each.

[00:27:31] Speaker 04:
Further, the specification repeatedly refers to not just embodiments, but it refers to the invention as being uniformly densified.

[00:27:40] Speaker 04:
Column one, line seven through eight, says the invention relates to a heat exchanger having uniform intensified structure.

[00:27:47] Speaker 04:
The patent says its goal is to increase density uniformly so that all circuits have consistent functionality.

[00:27:53] Speaker 01:
What about claim 20?

[00:27:55] Speaker 01:
Claim differentiation argument?

[00:27:58] Speaker 04:
Well, claim differentiation actually doesn't necessarily apply to claim between claims 20 and 1 because there are other differences.

[00:28:04] Speaker 04:
So as this court has held in the past, not only is claim differentiation not a hard and fast rule,

[00:28:09] Speaker 04:
But it doesn't necessarily apply.

[00:28:11] Speaker 04:
It doesn't require that each limitation between different claims be different.

[00:28:15] Speaker 04:
It only requires one limitation to be different.

[00:28:17] Speaker 04:
As Mr. McDowell pointed out in his argument, there's a spacing difference between those two claims.

[00:28:23] Speaker 04:
Moreover, there's actually a slight difference in the language, whereas claims 1 and 13 say S is the spacing between each adjacent circuit.

[00:28:33] Speaker 04:
In the context of claim 20, it actually refers to A uniform spacing S between the circuits.

[00:28:41] Speaker 04:
But to the extent that getting back to the specification, the patent says the goal is to increase the density uniformly so that all circuits have consistent functionality.

[00:28:51] Speaker 01:
It also specifies that there's a particular need for doing it in a uniform way.

[00:28:55] Speaker 01:
That sounds like a preferred embodiment to me.

[00:28:59] Speaker 01:
Well, Your Honor, the need for a heat exchanger would have been an increased bundle density, because the patent recognizes that increasing bundle density is a good idea, and there have been problems in the prior argument.

[00:29:12] Speaker 01:
So in the summary of the invention, the second paragraph would seem to me they're saying there's a need for the design that can increase bundle densing, which you could do non-uniformly, right?

[00:29:24] Speaker 04:
You can increase bundle density uniformly.

[00:29:26] Speaker 01:
Yeah, you can do it non-uniformly.

[00:29:27] Speaker 01:
And then it goes on to say there's a particular need for a heat exchanger that increases it uniformly.

[00:29:33] Speaker 04:
And then the patent also goes on to say that this need, and the need of the invention

[00:29:38] Speaker 04:
that it's just described are met by the present invention meets those needs to increase it uniformly.

[00:29:43] Speaker 04:
So where it discusses there's a need in the system.

[00:29:46] Speaker 04:
Both needs are met.

[00:29:48] Speaker 04:
And both needs are met by a uniform system.

[00:29:50] Speaker 01:
Both needs are met without requiring uniformity.

[00:29:53] Speaker 01:
You've got uniformity in claim 20.

[00:29:56] Speaker 01:
So if that's a dependent claim, that's getting that job done.

[00:30:00] Speaker 01:
But if claim one, I think your argument really hinges on the word the.

[00:30:06] Speaker 01:
preceding the S and the D, right?

[00:30:10] Speaker 04:
It is primary.

[00:30:10] Speaker 04:
Well, it starts, of course, just as Phillips indicates.

[00:30:13] Speaker 04:
You start with a plain, ordinary meaning of the claims.

[00:30:15] Speaker 04:
Here, the claims say, S is B-spacing.

[00:30:17] Speaker 01:
If it said A instead of the, you wouldn't have an argument.

[00:30:21] Speaker 04:
I think we still would, Your Honor.

[00:30:22] Speaker 04:
For example, in Cat Tech.

[00:30:23] Speaker 01:
A lesser argument?

[00:30:25] Speaker 04:
It would be slightly weaker, but it would still be the same argument.

[00:30:28] Speaker 04:
For example, in Cat Tech, there was A-spacing S. It wasn't the spacing S. And the court still found that the spacing requirement

[00:30:36] Speaker 04:
was required for all, across all of the circuits.

[00:30:41] Speaker 04:
And here, in this particular case, what the patent talks about is this is, we're talking about increases in density on the order of 1%.

[00:30:48] Speaker 04:
And the patent in column 11 specifically says that the overall goal of this patent is felt when you talk about the cumulative effect over many circuits.

[00:30:58] Speaker 04:
So it's not sufficient to just say between one circuit I identify

[00:31:02] Speaker 04:
I need to actually have that effect and that impact over multiple circuits so that I can either have a smaller housing or I can add more circuits at the end.

[00:31:10] Speaker 04:
So what the patent is talking about is not just having a very localized density increase, it's having an entire tube bundle density increase.

[00:31:19] Speaker 01:
Right, but you could still achieve some of those same results if you were non-uniform but not non-uniform in an aggressive way.

[00:31:26] Speaker 01:
in uniformity requires the space to be exactly the same or as the pattern recognizes, substantially exactly the same because it can't be exactly the same in the real world, right?

[00:31:37] Speaker 01:
The measurements, I mean, the stuff is big and

[00:31:41] Speaker 04:
To the extent that there are spacing differences, Your Honor, we would think that those spacing differences would need to be very small compared to, as we said, there's looking at a 1% to 2% difference.

[00:31:50] Speaker 04:
It's the difference between infringement and non-infringement.

[00:31:53] Speaker 01:
If claims are requiring uniformity, you can avoid infringement by coming off uniformity by a tiny bit, right?

[00:32:00] Speaker 01:
Which is presumably what you've done.

[00:32:02] Speaker 01:
Which your clients have done, presumably, OK?

[00:32:05] Speaker 01:
So many of the same benefits that the patent is trying to achieve can be, I would assume, in the real world can be achieved in a non-uniform environment.

[00:32:15] Speaker 04:
Some of those potential benefits could be achieved.

[00:32:17] Speaker 01:
I'm just responding to your argument that all these benefits flow from uniformity.

[00:32:22] Speaker 04:
Some of the benefits could be achieved by uniformity, but all of the benefits can be achieved by a system which is uniform.

[00:32:29] Speaker 04:
if you have a system which you're not in.

[00:32:30] Speaker 01:
If you draw your claim uniformly, you live or die by uniformity.

[00:32:34] Speaker 01:
And as I say, it isn't very hard to avoid uniformity in the real world.

[00:32:38] Speaker 04:
Well, to the extent that there's a dispute over uniformity, the claim, court's claim construction doesn't actually have the words uniform.

[00:32:45] Speaker 04:
It has S is the spacing.

[00:32:47] Speaker 04:
So the extent that there's a dispute as to uniformity.

[00:32:50] Speaker 01:
Well, the district court's interpretation is that there's no variance.

[00:32:52] Speaker 01:
That S is constant throughout, right?

[00:32:55] Speaker 04:
Now to the extent there's a district court or to the extent that there is a doctrine of equivalence or an infringement issue, BAC stipulated to non-infringement.

[00:33:03] Speaker 04:
So no one ever got to the issue of how much variation can there be because BAC stipulated to non-infringement.

[00:33:09] Speaker 04:
So to the extent the record is barren as to what level of difference you could have.

[00:33:14] Speaker 04:
And I apologize for the amount of time.

[00:33:16] Speaker 01:
I mean, if that gave away a DOE argument, there's nothing I can do about it.

[00:33:18] Speaker 01:
You can do about that.

[00:33:19] Speaker 01:
I mean, you're happy.

[00:33:20] Speaker 01:
The infringement issue is not in front of us.

[00:33:23] Speaker 01:
I'm just trying to see what testing your argument that you said, well, basically, you need uniformity to achieve the advantages that the patent wants to get.

[00:33:32] Speaker 01:
And I just doubt that.

[00:33:34] Speaker 04:
Well, there's an issue also of consistent functionality.

[00:33:37] Speaker 04:
So if you also have tubes that have inconsistent properties, and so if you have inconsistent spacing, inconsistent diameter, you now have a system where tubes do not have consistent properties, which is, again, one of the bugs

[00:33:49] Speaker 04:
one of the functions of the claims is you want every tube to have a separate... Depending on how much variance you have.

[00:33:54] Speaker 01:
Depending on how much variance you have, what the size of the whole thing is, and the fluid moving in the rect.

[00:33:59] Speaker 01:
Sure.

[00:34:01] Speaker 04:
In the instance of BAC's construction, which is adjacent circuits have us spacing between them, what BAC's proposed construction actually is asking the court to do is just to look at two circuits and ignore everything else.

[00:34:12] Speaker 02:
Thank you, counsel.

[00:34:13] Speaker 02:
As you can see, your time has expired.

[00:34:15] Speaker 02:
Thank you, Your Honor.

[00:34:17] Speaker 02:
We have your case.

[00:34:18] Speaker 02:
Mr. McDowell has two minutes for a bottle.

[00:34:22] Speaker 03:
Thank you, Your Honor.

[00:34:25] Speaker 03:
Your Honor, first, I'd like to address the argument by my friend with respect to conception on issue one, the priority.

[00:34:34] Speaker 03:
Now, my friend stated that Mr. Carter never made the connection between cross-flow fill and moving air generally across the direct evaporative section.

[00:34:45] Speaker 03:
That's simply incorrect, Your Honor.

[00:34:47] Speaker 03:
If we look at appendix site 22137, paragraph 18, Mr. Carter states, as part of his declaration, the cross-flow fill would direct air to flow at least across the direct evaporative section.

[00:35:03] Speaker 03:
Mr. Trotta, the assistant to Mr. Carter, submitted a declaration as well in support of our opposition, Mr.

[00:35:12] Speaker 03:
Trotta states at appendix site 22150 paragraph 5, the cross flow fill would direct air to flow at least across the direct evaporative section.

[00:35:23] Speaker 03:
The link was there.

[00:35:24] Speaker 03:
And again, this is summary judgment.

[00:35:26] Speaker 03:
All inferences should be drawn in BAC's favor.

[00:35:29] Speaker 03:
The concept of corroboration and whether it requires every element, this court just a month ago reaffirmed the Fleming decision, the intellectual venture decision, again, stating

[00:35:42] Speaker 03:
Raytheon is correct that corroborating evidence need not disclose each and every aspect of the claimed invention, citing both Cooper and Fleming.

[00:35:51] Speaker 03:
And that's at 2018 Westlaw 1598724 at page 5.

[00:35:57] Speaker 00:
Unpublished decision, but again, this court has always found that very... But the corroborating evidence must encompass all claim limitations.

[00:36:07] Speaker 00:
It need not

[00:36:08] Speaker 00:
address each specific one.

[00:36:10] Speaker 00:
But overall, the corroborating evidence has to encompass all claim limitations.

[00:36:14] Speaker 03:
I think the corroborating evidence, Your Honor, only has to determine, is the inventor testimony credible?

[00:36:22] Speaker 03:
The conception is where all the elements come in.

[00:36:25] Speaker 00:
If we had a corroboration- Did the inventor possess the invention at the time of the corroboration?

[00:36:34] Speaker 03:
Your Honor, the inventor, conception is in the formation of the mind of the inventor.

[00:36:39] Speaker 00:
So the invention means encompass all the claim limitations.

[00:36:43] Speaker 03:
Correct, Your Honor, and that's why the conception usually boils down to an inventor testifying, because it's something that happened in his mind.

[00:36:51] Speaker 03:
The corroboration requirement is there to determine is that inventor's testimony credible.

[00:36:58] Speaker 03:
And there's a difference between necessity of corroboration and sufficiency of corroboration.

[00:37:03] Speaker 02:
Thank you.

[00:37:04] Speaker 02:
Thank you, counsel.

[00:37:05] Speaker 02:
Your time is up.

[00:37:06] Speaker 02:
We will take the case under submission.

[00:37:08] Speaker 03:
Thank you, Your Honor.