[00:00:00] Speaker 03:
But they fixed the bone in place.

[00:00:02] Speaker 03:
They screwed it down.

[00:00:03] Speaker 03:
So you didn't need to know where the bone was.

[00:00:06] Speaker 03:
Its position never changed.

[00:00:08] Speaker 03:
The improvement here was to allow the bone, the workpiece, the term that's used in the patent, or target sometimes.

[00:00:14] Speaker 03:
Allow that workpiece to move.

[00:00:16] Speaker 03:
And once it's moving, then you need to know its position relative to the cutting tool.

[00:00:21] Speaker 02:
Just curious, does Blue Belt have any patent claims that talk about tracking position data, tracking the

[00:00:29] Speaker 02:
position of the workpiece?

[00:00:32] Speaker 03:
There certainly are some of the deepening claims in this patent even that talk about requiring at least three positions and some other elements in this patent.

[00:00:42] Speaker 03:
I don't know whether you're talking about just in this patent or other patents.

[00:00:45] Speaker 02:
This patent or your entire portfolio, it sounds like in this patent there are claims that are directed to, devoted to tracking a specific kind of data, the data you're talking about, position,

[00:00:59] Speaker 02:
data, coordinate systems, and all of that.

[00:01:02] Speaker 02:
Right.

[00:01:02] Speaker 02:
There's a number of claims in this patent, and we have others.

[00:01:04] Speaker 02:
So I guess it's up to us to try to figure out why does tracking data have to necessarily mean that particular kind of data in this broad claim.

[00:01:17] Speaker 03:
Yes, Your Honor.

[00:01:18] Speaker 03:
I think what the board did and what the petitioner had done was to divorce the term track from the rest of the claim and also divorce it from the specification.

[00:01:26] Speaker 03:
Yes, there is a dictionary definition where the word track

[00:01:29] Speaker 03:
can have a number of meanings.

[00:01:32] Speaker 03:
There are a couple of examples in this pattern where they used the word track to look at something other than its position, like there's the example where they're talking about the motor of the cutting tool.

[00:01:42] Speaker 03:
But when you have pretty clear disclosure in a number of places that every time you're talking about the work piece and tracking the work piece, what you care about is its position.

[00:01:53] Speaker 03:
It's in the summary of the invention.

[00:01:55] Speaker 03:
It's in the background.

[00:01:56] Speaker 03:
And it's in a number of places in the detailed description where the phrase tracking the workpiece is later referred to essentially as its position.

[00:02:05] Speaker 03:
For example, it starts in the background of the invention in column 1, 28 to 35, where it's saying, fixation in robotic systems can be used, but you do not track the target.

[00:02:19] Speaker 03:
So they're juxtaposing tracking of the target where you need to know its position.

[00:02:24] Speaker 03:
with a system where it's fixed and you don't.

[00:02:27] Speaker 01:
But when you have a dispute as to the scope of particular claims, isn't the most direct path to narrow the scope by amendment rather than argue to the board and then to us that it should be read one way or another?

[00:02:43] Speaker 03:
That is certainly one path, Your Honor.

[00:02:44] Speaker 03:
But as you know, there are consequences to making amendments at the patent office.

[00:02:48] Speaker 03:
This patent has been enforced for a number of years.

[00:02:51] Speaker 03:
And if you make an amendment at the patent office, you relinquish certain rights and their potential intervening rights.

[00:02:56] Speaker 03:
And we believe that the language of the claim as written in light of this specification is already clear.

[00:03:01] Speaker 03:
I mean, the answer would be true in every appeal where you come up on a claim construction that you could certainly have amended the claim even in this IPR proceeding.

[00:03:10] Speaker 03:
But when you believe that the claim term is clear in light of the specification, you shouldn't have to.

[00:03:15] Speaker 02:
It would be our position.

[00:03:16] Speaker 02:
So there's no express definition in the specification

[00:03:19] Speaker 02:
term tracking data, right?

[00:03:22] Speaker 03:
Well, and Your Honor, just to be clear, we believe that we need to have the term tracking data associated with the workpiece because the context is clear.

[00:03:28] Speaker 03:
We believe that the full phrase is what's important, not just the word tracking data, but there is no clear definition of that phrase in the specification.

[00:03:36] Speaker 02:
What we're saying... I guess it's the full phrase is tracking data associated with the cutting tool and the workpiece.

[00:03:42] Speaker 03:
Right, and there doesn't seem to be a dispute about the cutting tool tracking data in this case.

[00:03:47] Speaker 03:
We were just talking about the

[00:03:49] Speaker 03:
that there's tracking data has to be associated with the work piece.

[00:03:52] Speaker 03:
That's the part of that phrase that's in dispute.

[00:03:56] Speaker 03:
And you need to know what in this patent that means.

[00:03:59] Speaker 03:
What do you care about in its location or position information?

[00:04:02] Speaker 03:
So if you look, for example, in column 9, line right around 15 to 20, it's talking about the methods and systems that they have

[00:04:14] Speaker 03:
And you can relate or associate the workpiece to a workpiece image.

[00:04:19] Speaker 03:
So you're imaging it and there's a real life workpiece and you're trying to associate those two because you've got a computer screen and you're trying to help the surgeon make a decision about what to cut and what not to cut.

[00:04:29] Speaker 03:
And it says you can track the workpiece and the cutting tool and then transform the tracked positions of the cutting tool in the workpiece.

[00:04:39] Speaker 03:
That's a pretty, in our view, pretty clear implication that when you're talking about tracking the workpiece and the cutting tool, you're tracking their positions.

[00:04:49] Speaker 03:
And that's what they care about.

[00:04:51] Speaker 03:
Every other example that's pointed to in the board's decision and by the government where other phrases for tracking are used don't have anything to do with the workpiece.

[00:05:02] Speaker 03:
They relate to either the cutting tool or something else.

[00:05:05] Speaker 03:
And so we believe there was an implicit definition

[00:05:08] Speaker 03:
given in this patent specification that should be used in the claim construction process at the board.

[00:05:13] Speaker 02:
So when you see the phrase in the claim, tracking data associated with the cutting tool and the workpiece, when it comes to tracking data associated with the cutting tool, you acknowledge that that could be a number of different characteristics other than position of the cutting tool.

[00:05:35] Speaker 02:
But when it comes to the workpiece part,

[00:05:37] Speaker 02:
now the term tracking data and tracking data associated with the cutting tool and the workpiece now necessarily gets narrowed down to one specific characteristic, i.e.

[00:05:50] Speaker 02:
the position of the workpiece.

[00:05:52] Speaker 02:
Is that right?

[00:05:52] Speaker 02:
So the word tracking data in that phrase will mean two different things with respect to two different nouns.

[00:05:59] Speaker 03:
We didn't have a dispute in the lower board about tracking data associated with a cutting tool.

[00:06:06] Speaker 03:
But our view is it has to at least include position information for that, too.

[00:06:10] Speaker 03:
And that's the entire point of this system, is to know where both of those objects are during the surgery.

[00:06:16] Speaker 03:
If you don't know where the cutting tool is and you don't know where the workpiece is, you don't know when they're going to intersect in a way that's not according to the design.

[00:06:24] Speaker 03:
The whole point of these is you're cutting a bone, for example.

[00:06:27] Speaker 03:
You've got a target shape that you want to achieve so that you can put an implant in that bone.

[00:06:32] Speaker 03:
And so you want to make sure that if you cut outside of that area,

[00:06:36] Speaker 03:
that you know it, and you tell the surgeon to stop, or you take some control, and that's what the control element's all about.

[00:06:41] Speaker 03:
So it would include at least position information for both.

[00:06:44] Speaker 03:
There are certainly other things about the cutting tool you might want to know, and that's the examples in the specification, like the motor speed and some other things, that might help you control how, you know, you want to know how fast the cutting tool's going, you may want to slow it down, if the surgeon's getting close to cutting outside the line.

[00:07:00] Speaker 02:
What about the board's other finding that,

[00:07:04] Speaker 02:
Even if it accepted your claim construction, the strain gauges of Taylor do the very thing that you're reciting in your claim.

[00:07:18] Speaker 02:
Because in the end, Taylor, yes, it's fixing the bone.

[00:07:24] Speaker 02:
That's the intention.

[00:07:25] Speaker 02:
But it is using the strain gauges to track the bone to make sure the bone doesn't move.

[00:07:34] Speaker 02:
So if it's either in position or it's out of position, and as soon as it shifts to any measurable degree, then immediately the cutting tool shuts off.

[00:07:44] Speaker 02:
So in that sense, Taylor is doing the same thing that your invention is doing, and it is checking on the location of the bone to make sure the bone doesn't move.

[00:07:55] Speaker 02:
So why wouldn't that fulfill this claim limitation?

[00:08:00] Speaker 03:
With respect, that's not correct.

[00:08:02] Speaker 03:
First of all, this is a system that has to provide the tracking data to the control mechanism.

[00:08:07] Speaker 03:
There's no disclosure in Taylor that anything other than a zero, it moved or it didn't move, is provided from the strain gauge to its control mechanism.

[00:08:17] Speaker 03:
And there is no information in that data where the bone started from, how far it moved, or if it moved and went back into the same place.

[00:08:27] Speaker 03:
So you don't know

[00:08:28] Speaker 03:
anything about where the bone is from their system.

[00:08:31] Speaker 03:
At most, you know it moved and by a certain amount.

[00:08:35] Speaker 04:
But if I'm standing in the middle of a... Why isn't that tracking data a position?

[00:08:39] Speaker 04:
It may be not as precise as your invention, but you know it moved and you said by a certain amount.

[00:08:45] Speaker 04:
That's a positional tracking data, isn't it?

[00:08:48] Speaker 03:
No, Your Honor, it's not because you don't know where it started from.

[00:08:51] Speaker 04:
It's like saying if you were in the middle of a forest and you... Well, but that's not really... The claim doesn't say you have to know precise

[00:08:58] Speaker 04:
where it is.

[00:08:59] Speaker 04:
Even under your definition, you just say you have to know some kind of position.

[00:09:04] Speaker 04:
But if you know something moved, then you know that it's not in the same position it used to be.

[00:09:08] Speaker 04:
That's positional tracking data.

[00:09:11] Speaker 03:
Well, with respect, we meant that the information would be information that would give you a position in a coordinate system.

[00:09:16] Speaker 03:
That was the interpretation that we offered before.

[00:09:18] Speaker 04:
So you're wanting us to read in even more details to what tracking data means now.

[00:09:23] Speaker 04:
If you wanted to claim tracking data that gave you a detailed coordinate system like certain examples in the specification, then you could have put that in specific claims.

[00:09:33] Speaker 03:
Couldn't you have?

[00:09:35] Speaker 03:
We could certainly.

[00:09:35] Speaker 03:
You always have the point that if there is a claim construction dispute coming from a PTAB appeal, that the argument is you could have just amended the claims to say that.

[00:09:44] Speaker 04:
Well, I'm not talking about amendments.

[00:09:46] Speaker 04:
It seems to me that you're asking us to violate our fundamental principle that we don't read in specific embodiments.

[00:09:53] Speaker 04:
to limit claim terms when they're not otherwise limited on their face.

[00:09:58] Speaker 03:
Your Honor, this court has in many cases found where it's the only embodiment.

[00:10:02] Speaker 03:
And I'm not aware of any disclosure where you're tracking the workpiece in this disclosure where the information that you're tracking is its position in a coordinate system.

[00:10:11] Speaker 03:
That's what you need to use so that you can then, according to the claim, transform it into an image system that has coordinates.

[00:10:19] Speaker 03:
The whole point, again, is

[00:10:20] Speaker 03:
We want to know where it is relative to the cutting tool.

[00:10:23] Speaker 03:
So we've got a coordinate system in the computer, and that's what you need to know.

[00:10:27] Speaker 03:
You need to be able to figure out.

[00:10:29] Speaker 01:
This is really, it seems to me, an important point.

[00:10:32] Speaker 01:
A reluctance, as you tell us, to explicitly limit the claims to that which you tell us they should be limited to, for I'm not sure what reason, on the theory that perhaps such a claim would not be retroactively

[00:10:50] Speaker 01:
effective, we don't know the answer to that.

[00:10:53] Speaker 01:
At the same time, you're asking us for a claim that, at least on its face, interacts with the prior art in a way that you tell us is not the correct construction, but you're not willing to explicitly limit the claim to what you tell us we should in our minds limit the claim to.

[00:11:13] Speaker 03:
Well, the claim should be a position

[00:11:17] Speaker 03:
in a coordinate system over time.

[00:11:19] Speaker 03:
That's what the claim construction we offer to the board on page 188 of the appendix.

[00:11:23] Speaker 03:
That's the position that the patent owner, we took it before the board.

[00:11:27] Speaker 03:
And having the reference to a coordinate system is necessary so you know what it is.

[00:11:32] Speaker 03:
Position is only information if it tells you where within some sort of reference point coordinate system it is.

[00:11:39] Speaker 03:
So that is the construction we've been offering

[00:11:42] Speaker 03:
from the beginning in this PTAB appeal.

[00:11:44] Speaker 03:
The point we were trying to make in the briefing is it has to at least include position information.

[00:11:50] Speaker 03:
And the position, of course, has reference to a coordinate system.

[00:11:53] Speaker 01:
That's all right.

[00:11:54] Speaker 01:
Let's hear from the office.

[00:12:04] Speaker 01:
Ms.

[00:12:04] Speaker 01:
Craven.

[00:12:05] Speaker 00:
Good morning, Your Honors.

[00:12:06] Speaker 00:
May it please the court

[00:12:07] Speaker 00:
The board did not err in rejecting a construction of tracking data as limiting it to data that identifies a position over time in a coordinate system.

[00:12:16] Speaker 01:
Now here we have some claims that have gone through examination.

[00:12:21] Speaker 01:
It's logical that the examiner viewed the claims as the applicant tells us we should view them and the board should view them in light of the specification.

[00:12:34] Speaker 01:
Isn't there an obligation to try and resolve

[00:12:37] Speaker 01:
this discrepancy?

[00:12:39] Speaker 00:
Well, we don't have anything about the prosecution history.

[00:12:43] Speaker 00:
Here we just have the proceedings in the IPR.

[00:12:46] Speaker 00:
And the construction that Blue Belt wants to apply to their claims, limiting it to position in a coordinate system over time, is language that is in dependent claims.

[00:12:57] Speaker 00:
Dependent claim six limits it to at least three positions.

[00:13:01] Speaker 00:
Claim 27 limits it to 4D tracking in a coordinate system.

[00:13:06] Speaker 00:
So they have claims that more narrowly define their invention as based on this positional data.

[00:13:13] Speaker 00:
It's the scope of Claim 1, where all you need is a tracker that provides tracking data.

[00:13:18] Speaker 00:
And the board, I think, correctly said there's nothing in that claim language that limits it to positions over time.

[00:13:26] Speaker 00:
And if we look at the specification, there's one of the

[00:13:31] Speaker 00:
embodiments is using this opti-track system, which is a motion and position tracking system.

[00:13:36] Speaker 00:
So the board, it's not limited to position.

[00:13:39] Speaker 00:
It can be at least motion.

[00:13:41] Speaker 02:
Are there any clues from the original prosecution history as to how either the applicant or the examiner understood the meaning of the phrase tracking data?

[00:13:51] Speaker 02:
Tracking data associated with the fork piece and cutting tool?

[00:13:55] Speaker 00:
There was nothing introduced during the IPR about during the prosecution history and how that informed the claim language and I don't know about the prosecution history standing here today what was argued about particular claim language or the rejections they received.

[00:14:11] Speaker 02:
Was this prior art reference Taylor part of the original prosecution?

[00:14:15] Speaker 00:
My understanding from the petition that it was not, that it was a new prior art that would be considered by the office for the first time.

[00:14:22] Speaker 00:
So Taylor

[00:14:25] Speaker 00:
The board then reasonably identified Taylor with the strain gauge as tracking position of the workpiece.

[00:14:34] Speaker 00:
And like an OptiTrack system can do, it can track motion.

[00:14:39] Speaker 00:
It can also track position.

[00:14:41] Speaker 00:
It's also hard to see, though, once you're tracking motion, that you're not necessarily tracking position.

[00:14:46] Speaker 00:
And I think the broadest embodiment in the specification has a tracker that tracks one position, so tracking data.

[00:14:53] Speaker 00:
as Blue Belt argued to the board, was tracking data can be one position.

[00:14:58] Speaker 00:
And so if you're tracking motion, you necessarily are tracking there's initial position.

[00:15:03] Speaker 00:
The bone is fixed to the fixator.

[00:15:04] Speaker 00:
It's at a position.

[00:15:06] Speaker 00:
And if it moves to a different position, you are then tracking the motion and tracking a change in position.

[00:15:13] Speaker 00:
So I think even if Blue Belt is right,

[00:15:16] Speaker 00:
And the specification requires it to be at least a position.

[00:15:19] Speaker 00:
I don't think that the board understood that to be their position below.

[00:15:23] Speaker 00:
But if they're correct, the board's application of the construction relying on Taylor's strain gauge and tracking motion, inherent in that finding is that there's a tracking of motion in Taylor's system.

[00:15:38] Speaker 02:
In Taylor, am I right in recalling that what is going on is the bone is fixed

[00:15:46] Speaker 02:
Say in position A, and then while you're using the cutting tool, you're monitoring the position A of the fixed bone, but if the bone ever moves out of that position to any other position, then the cutting tool turns off?

[00:16:06] Speaker 00:
That's correct.

[00:16:07] Speaker 00:
There's a freeze motion.

[00:16:09] Speaker 02:
detect a signal, the controller then stops the cutting tool, and so then you have... So Taylor's monitoring not only the location position of the cutting tool itself with some kind of marker, but it's also tracking to see if the workpiece, the bone, which is supposedly fixed, moves out of position.

[00:16:32] Speaker 02:
That's correct.

[00:16:33] Speaker 02:
And if it does, then the tool turns off.

[00:16:35] Speaker 00:
That's correct.

[00:16:35] Speaker 00:
That's my understanding of it, yes.

[00:16:37] Speaker 00:
That's correct.

[00:16:39] Speaker 00:
the specifications that when they say that they're distinguishing these prior art systems that rely on fixing the bone, that's in there in the background section.

[00:16:49] Speaker 00:
But really, we're talking about the objective reach of the claim.

[00:16:51] Speaker 00:
And the board found there was nothing in claim one that precluded fixation.

[00:16:57] Speaker 00:
And in fact, Taylor's system adds the strain gauge to the systems in order to be able to do this tracking.

[00:17:06] Speaker 00:
So there's nothing inconsistent with

[00:17:07] Speaker 00:
their background section trying to distinguish this type of invention, their invention.

[00:17:14] Speaker 00:
But the objective reach of providing a tracker that provides at least one bit of tracking data is anticipated by the tailor's use of the string gauge.

[00:17:26] Speaker 00:
So unless there's any other questions, I will yield the rest of my time.

[00:17:32] Speaker 00:
More questions?

[00:17:34] Speaker 00:
All right.

[00:17:34] Speaker 01:
Thank you, Your Honor.

[00:17:35] Speaker 01:
Thank you.

[00:17:35] Speaker 01:
Thank you, Ms.

[00:17:36] Speaker 01:
Craven.

[00:17:38] Speaker 03:
Yes, Your Honor, there was no discussion about the original prosecution because this was the first action on Alex.

[00:17:46] Speaker 03:
So there's no light to be shed on what this term meant from the original prosecution.

[00:17:51] Speaker 03:
Second point is, in Taylor, everything that was described is correct, but you still don't have a starting point.

[00:17:59] Speaker 03:
You don't have an initial position in the computerized system.

[00:18:04] Speaker 03:
So all you know is something moved.

[00:18:06] Speaker 03:
It may have moved back.

[00:18:07] Speaker 03:
And so we just believe that in light of this specification where it's important to know if you're going to have an intersection.

[00:18:13] Speaker 03:
The goal of the patent is so that you don't cut beyond what your original plan was.

[00:18:18] Speaker 03:
Unless you know where the work piece started, you don't know.

[00:18:23] Speaker 03:
You're not able to track the work piece.

[00:18:27] Speaker 03:
And that is the key element of this patent over the prior in claim one and claim 17.

[00:18:33] Speaker 03:
There's other claims in the patent for sure.

[00:18:35] Speaker 03:
But those claims are trying to get at the concept that you have some way of tracking both cutting tool and work piece because both can move in contrast to the fixed system that's described in the background, which is exactly what Taylor is.

[00:18:51] Speaker 03:
I mean, Taylor was many years before this patent.

[00:18:54] Speaker 03:
And this is the kind of system it's referring to when it's talking about systems that are fixed.

[00:18:58] Speaker 03:
So unless you all have any other questions, I yield my time.

[00:19:01] Speaker 01:
Thank you.

[00:19:02] Speaker 01:
Thank you both.

[00:19:03] Speaker 01:
The case is taken under submission.