[00:00:01] Speaker 03: We have a busy morning this morning. [00:00:04] Speaker 03: We have four cases, five cases before the court. [00:00:09] Speaker 03: One of the cases, Baker versus Microsoft Corporation 17-2357. [00:00:15] Speaker 03: We've taken on the briefs alone, no oral arguments. [00:00:19] Speaker 03: So we have four oral arguments scheduled for this morning. [00:00:23] Speaker 03: The first argument is Cascades Projection versus Epson America 17-1517. [00:00:32] Speaker 03: Mr. Mann, you're reserving five minutes of your time for rebuttal. [00:00:38] Speaker 03: Is that correct? [00:00:38] Speaker 02: Yes, Your Honor, that's correct. [00:00:41] Speaker 03: OK, you may proceed. [00:00:42] Speaker 02: Thank you, Your Honor, and may I please report? [00:00:45] Speaker 02: Your Honor, there are a number of issues in this case, but the primary errors made by the board below were in flame construction with respect to three flame elements. [00:00:54] Speaker 02: Those flame elements were Fresnel polarizer, means for enhancing brightness, and means for focusing. [00:01:02] Speaker 02: I'd like to take probably the most egregious error and the most successful one. [00:01:06] Speaker 03: Does indolentity here rise and fall with your claim construction? [00:01:10] Speaker 02: Yes, it does, Your Honor. [00:01:11] Speaker 02: And the way that comes into play is this. [00:01:14] Speaker 02: In essence, the board adopted an overly broad interpretation of the claims. [00:01:18] Speaker 02: And under that overly broad interpretation, the board was then able to find purported prior art that would render the claims obvious. [00:01:27] Speaker 02: So our position is the claims somewhat [00:01:30] Speaker 02: Different from an infringement analysis, we're arguing that the claim should be interpreted somewhat more narrowly so that the prior article does not show what we believe the claims actually cover. [00:01:41] Speaker 02: What's the status of the certificate of correction? [00:01:44] Speaker 02: That's a good question, Your Honor. [00:01:46] Speaker 02: I'm not aware of any action having been taken on that. [00:01:49] Speaker 02: I'm not primarily responsible, but I think I would have been advised if that had something happened. [00:01:55] Speaker 02: So, with respect to the Fresnel Polarizer, Mr. Dolgoff, the inventor here, again, let's back up a little bit. [00:02:01] Speaker 02: His whole goal in this invention was to make maximum use of the available light. [00:02:06] Speaker 02: You have a light source, and it comes out and sort of puts the light all over. [00:02:10] Speaker 02: Traditionally, they put a lens in front of that. [00:02:12] Speaker 02: That becomes a circular beam, and a lot of light is lost. [00:02:17] Speaker 02: Now, when you're using these image-forming elements, [00:02:20] Speaker 02: It's important to have polarized light. [00:02:22] Speaker 02: You can't just have any sort of light. [00:02:24] Speaker 02: So it has to be polarized. [00:02:25] Speaker 02: And with traditional polarizers, when you polarize light, you lose, in essence, half of it, actually somewhat more than half of it. [00:02:32] Speaker 02: You take the stuff that you want, the portion that's not properly polarized, you discard. [00:02:37] Speaker 02: So he said that's a big waste of light. [00:02:38] Speaker 03: So you use the term polarizing. [00:02:40] Speaker 03: Yes. [00:02:40] Speaker 03: So the Fresno polarizer leaps out in its construction. [00:02:48] Speaker 03: You say in your brief, and I read in other parts of the other briefs, that this is a coined term, that we're dealing with a coined term here. [00:03:01] Speaker 03: But you don't go as far as to say that the Panty acted as its own lexiographer. [00:03:08] Speaker 02: We're making a somewhat subtle distinction here. [00:03:11] Speaker 02: Instead of saying that there is a word that's out there, for example, lubricant. [00:03:17] Speaker 02: There's a class of lubricants. [00:03:18] Speaker 02: When I say lubricant, I mean a particular type of oil that has these characteristics. [00:03:23] Speaker 02: That's what our interpretation is of being a lexicographer. [00:03:27] Speaker 02: Here, Mr. Golgoth created an entirely new word. [00:03:30] Speaker 02: There was no such thing as lubricant. [00:03:32] Speaker 03: But it's not just embracing a specific meaning or specific definition of a [00:03:37] Speaker 03: term or a word, it's actually describing it, having a specific description of the word as having a specific meaning. [00:03:47] Speaker 03: That's our case law on acting as your own lexiographer. [00:03:51] Speaker 03: I don't see that that happened here. [00:03:53] Speaker 02: No, no, it did not. [00:03:54] Speaker 02: This was sort of a case of if I come up with an entirely new technology and for lack of [00:04:01] Speaker 02: any existing terminology. [00:04:02] Speaker 02: I said, well, this is a Fratistat, and that's just what I call it, because it doesn't exist anymore. [00:04:06] Speaker 02: This is the name I gave it. [00:04:08] Speaker 02: To me, that's a coined term. [00:04:10] Speaker 02: And that is what happened here with Mr. Golgoff. [00:04:12] Speaker 02: He's the first one that came up with this idea of using a stepped plate with some optical coatings. [00:04:18] Speaker 02: And the optical coatings are critical here. [00:04:21] Speaker 02: Optical coatings that will do two things. [00:04:23] Speaker 02: A, it results in an easily constructed economical structure. [00:04:28] Speaker 04: You don't have to... When you say optical coating, [00:04:31] Speaker 04: referring to anti-reflective coating? [00:04:34] Speaker 02: Not necessarily anti-reflective coating. [00:04:36] Speaker 02: And again, bear with me, Your Honor, because I'm not sure I fully understand the physics on this. [00:04:41] Speaker 02: My understanding is it's a dielectric coating that will change the coefficients of refraction and so forth. [00:04:48] Speaker 02: Whether that is a reflective coating or not, I don't know. [00:04:51] Speaker 02: But the coating is key in order to get the polarization effect. [00:04:57] Speaker 02: It's not merely polarizing. [00:04:58] Speaker 02: What Mr. Dolgoff wanted to do was polarize the light in such a way that you convert all of it, or substantially all of it, more than 90% of it, to the desired polarization as opposed to throwing away half the light. [00:05:11] Speaker 04: Is a hologram a coding, necessarily? [00:05:15] Speaker 02: In our view, it is. [00:05:16] Speaker 02: We're saying that was an example of a type of coding. [00:05:19] Speaker 02: And I think we made this point in our brief that holograms traditionally have been done using photographic film, which [00:05:26] Speaker 02: clear coating with a bunch of chemicals put on it. [00:05:29] Speaker 02: So the hologram would be... That's an emulsion, actually. [00:05:33] Speaker 02: Emulsion, exactly. [00:05:34] Speaker 01: Exactly. [00:05:36] Speaker 01: Where's the evidence that explains a hologram is an optical coating? [00:05:41] Speaker 02: Again, well, we just put that in. [00:05:44] Speaker 02: I think that's just sort of standard what somebody would... The hologram question didn't come up. [00:05:49] Speaker 01: If you'll recall... Well, isn't that the key issue for this? [00:05:54] Speaker 01: Optical coding includes holograms or not? [00:05:57] Speaker 02: Well, with respect to your honor, what happened was Dr. Khan, the expert for, I believe it was Epson, himself said that with respect to the Fresnel polarizer that you have to have a coding. [00:06:10] Speaker 02: The expert, our opponent's expert, was in agreement on this. [00:06:14] Speaker 02: And then after the evidence had been submitted to the board, the board on its own said, oh, well, nobody asked him about holograms. [00:06:23] Speaker 02: It says, the patent also says holograms. [00:06:25] Speaker 02: Nobody asked Dr. Khan about holograms. [00:06:27] Speaker 02: So the board, in essence, did this after the evidence was submitted and when it was too late for us to get in there and clarify the issue. [00:06:35] Speaker 01: So is the answer no? [00:06:37] Speaker 01: There's no evidence that I can read that explains to me that a hologram is or is not an optical coating? [00:06:46] Speaker 01: If you buy evidence, you mean? [00:06:47] Speaker 01: Did you ask for rehearing on that issue? [00:06:51] Speaker 02: I don't believe so. [00:06:52] Speaker 02: I was not involved in that aspect of it, but I do not believe that there's more cross-rehearing in the... Well, then what basis do I have to disturb the board's view that a hologram is not an optical coating? [00:07:05] Speaker 02: Because, well, I don't mean to be flippant here, Your Honor, the interpretation of Fresnel polarizer did not include a hologram either. [00:07:13] Speaker 02: What the board said is, even though the patent says, let's assume for the sake of argument that the patent says [00:07:20] Speaker 02: Fresnel polarizer has either an optical coating or a hologram. [00:07:24] Speaker 04: Even if we agree with you that a hologram and the liquid crystals discuss our types of coating, what makes us find that all Fresnel polarizers must include those things? [00:07:41] Speaker 02: Because that is what the only evidence of what [00:07:45] Speaker 02: Fresnel polarizer is, is the 347 patent the work of Mr. Dolgoff himself? [00:07:50] Speaker 02: Remember, this is not... He's not acting as a lexicographer. [00:07:56] Speaker 02: It's a coined term. [00:07:56] Speaker 02: He invented the Fresnel polarizer, and there's no evidence, I think, even Epson and Sony that said they could not find any other evidence of anyone else using the term Fresnel polarizer. [00:08:08] Speaker 03: But the prior has discloses and teaches optical coding. [00:08:13] Speaker 02: No, no. [00:08:15] Speaker 02: The prior art that was relied on by the board, namely Sato and Mitsuhisaki, I think the distinctions were those did not have the optical coatings. [00:08:24] Speaker 02: That's why it's important to us. [00:08:25] Speaker 01: We're saying that the prior art that the board relied on... So you didn't act as your lexicographer and say Fresnel polarizer has to have an optical coating. [00:08:38] Speaker 01: You're just saying that because the specification shows that [00:08:42] Speaker 01: all the embodiments have an optical coding that that's part of the invention? [00:08:47] Speaker 01: Yes, your honor. [00:08:48] Speaker 01: In essence, what we're... But that's the problem with that argument is we don't know whether the specification includes a hologram and we don't know whether a hologram is an optical coding or not. [00:08:58] Speaker 02: No, we do know that the specification refers to holograms. [00:09:01] Speaker 01: Well, that's what I just said. [00:09:03] Speaker 01: It definitely refers to them and we don't know whether a hologram is an optical coding or not. [00:09:08] Speaker 01: And so if it's not an optical coding, then your invention includes [00:09:12] Speaker 01: embodiments that don't have an optical coating? [00:09:16] Speaker 02: In that case, it would still have a hologram. [00:09:19] Speaker 02: It has to have one or the other. [00:09:20] Speaker 02: There is no disclosure in the patent of a Fresnel polarizer that does not have either an optical coating or a hologram. [00:09:28] Speaker 02: The board said you can have a Fresnel polarizer that dispenses with both, and that's our argument. [00:09:35] Speaker 02: We don't agree that a hologram is not an optical coating, but for the sake of argument, let's assume that's true. [00:09:41] Speaker 01: But you're essentially arguing that the claim term should be limited by the embodiments in the specification. [00:09:47] Speaker 01: Yes. [00:09:47] Speaker 01: Even though you didn't act as your lexicographer. [00:09:49] Speaker 02: We're saying it's a point term. [00:09:51] Speaker 02: That's correct. [00:09:51] Speaker 01: Isn't that contrary to our case law that you don't limit claims to their embodiments unless you specifically act as a lexicographer? [00:10:00] Speaker 02: I believe in terms of a coin term that the coin term would be what is disclosed. [00:10:05] Speaker 02: I think we made reference to a case that... What's your legal authority that supports that position? [00:10:10] Speaker 02: I have it in my brief. [00:10:10] Speaker 02: I don't have it memorized, Your Honor, but it was addressed in one of our briefs. [00:10:14] Speaker 02: It was a case that said basically that claim terms should not be expanded beyond what the inventor invented. [00:10:23] Speaker 02: There's a site I don't recall the specific citation for. [00:10:26] Speaker 04: Where does the specification say that [00:10:30] Speaker 02: that Liquid crystals and holograms as types of coating are required to make it a friend for now Roughly, that's columns 44 through 46 of the three four seven patent we have in part of our brief expensive quotes from those columns Okay, so you're into rebuttal time you only reserve it. [00:10:52] Speaker 02: I would like to reserve that thank you. [00:10:54] Speaker 03: Thank you [00:11:01] Speaker 03: Counselor Ball, do I understand you're splitting your argument time with Mr. Bramhall, and you're taking eight minutes, and she's taking seven? [00:11:12] Speaker 05: That's correct, Your Honor. [00:11:14] Speaker 05: And may it please the Court, I'd like to begin with the hologram and other embodiments in the specification. [00:11:20] Speaker 05: So, Your Honor, if we actually go to the specification of the patent, [00:11:25] Speaker 05: I'd just like to point out a couple of specific passages which I think might be helpful and I would like to begin with page 210 of the appendix at the top of column 47. [00:11:34] Speaker 03: Could you repeat that? [00:11:41] Speaker 05: I'd like to begin with page 210 of the joint appendix at the top of column 47. [00:11:47] Speaker 05: Okay. [00:11:48] Speaker 05: And what I want to address first, Your Honors, is the question [00:11:52] Speaker 05: raised during Cascade's presentation regarding what the specification discloses. [00:11:58] Speaker 05: I'll go on to coin terms and other issues in a moment. [00:12:01] Speaker 05: But if we begin at the top of column 47, any of these methods to produce a relatively flat, and I'll put my finger on relatively flat, any of these methods to produce a relatively flat polarizer plate or Fresnel polarizer that can be illuminated at normal incidences, means right angles, [00:12:22] Speaker 05: have use. [00:12:24] Speaker 05: Any of these methods have use. [00:12:26] Speaker 05: Now, what are these methods? [00:12:27] Speaker 05: We go to columns 44 through 46. [00:12:29] Speaker 05: I agree with Cascades Council. [00:12:33] Speaker 05: Column 46 in particular, what we're interested in, and we were the ones that raised this point below in our briefing, and the board agreed with us, is beginning at column 34, [00:12:46] Speaker 05: All previously described McNeil polarizers and Fresnel polarizers have utilized multilayer dielectric coatings. [00:12:52] Speaker 05: But then it goes on to describe additional embodiments. [00:12:55] Speaker 05: One of the embodiments is the hologram. [00:12:58] Speaker 05: Judge Hughes, as you pointed out, there's no record evidence to support that the hologram is a coating. [00:13:03] Speaker 05: There is no record evidence on that. [00:13:05] Speaker 05: Going further, if we get to line 55, various other arrangements, [00:13:10] Speaker 05: And this is critical, Your Honor, because look at the figure numbers in lines 55 and 56. [00:13:15] Speaker 05: There's no other there. [00:13:17] Speaker 05: I'm sorry? [00:13:18] Speaker 04: It doesn't say other. [00:13:19] Speaker 04: It says various arrangements. [00:13:21] Speaker 05: Oh, I'm sorry, Your Honor. [00:13:23] Speaker 05: Various arrangements. [00:13:25] Speaker 05: But these are going to be other. [00:13:28] Speaker 05: But you're right about that. [00:13:29] Speaker 05: Yes, you're exactly right, Judge Weld. [00:13:30] Speaker 05: Various arrangements in figures 54, 64, 80, 81, 82, 85. [00:13:38] Speaker 05: Five of those figures are the figures that our opponent relies on for requiring coatings. [00:13:43] Speaker 05: These arrangements can utilize a cholesteric, pneumatic, liquid crystal instead of a multilayer dielectric coating. [00:13:52] Speaker 05: I don't think anybody can argue that a liquid crystal is a coating. [00:13:56] Speaker 05: A liquid crystal is a device. [00:13:58] Speaker 05: It's an LCD. [00:14:00] Speaker 05: There's no record evidence that this is a coating. [00:14:02] Speaker 05: There's no record evidence that coatings are required. [00:14:06] Speaker 05: Your Honor, going to the question of the case law, coin term versus lexicographer, the way that I read my mail, what I think is that Phillips applies. [00:14:17] Speaker 05: And Phillips is the ground rule for claim construction. [00:14:20] Speaker 05: Phillips recognizes lexicography, of course, but lexicography isn't in view of Phillips. [00:14:26] Speaker 05: Any coin term needs to be in view of Phillips. [00:14:29] Speaker 05: We're going to read the patent in view of the specification. [00:14:31] Speaker 05: We're not going to read limitations into the claims, [00:14:35] Speaker 05: There's no basis to read the limitations into the claims here. [00:14:42] Speaker 05: When this gentleman, Mr. Dolgoff, wrote his patent application and talked about Fresnel polarizer, the action was in the word Fresnel. [00:14:55] Speaker 05: The action was not in the polarizer. [00:14:56] Speaker 05: Judge Raina, you pointed out what column 45, lines 22 through 24 [00:15:05] Speaker 05: Depositing materials and alternating layers, as is known in the art to make a McNeil polarizer. [00:15:13] Speaker 05: This gentleman didn't invent multilayer coatings. [00:15:16] Speaker 05: The gentleman who invented multilayer coatings was named McNeil. [00:15:20] Speaker 05: And his patent issued in 1946, and it's in the record. [00:15:24] Speaker 05: Those coatings are more than 50 years old. [00:15:27] Speaker 05: Eugene Dolgov did not invent coatings. [00:15:30] Speaker 05: What he did was he said, let's use Fresnel structures. [00:15:33] Speaker 05: Let's save space. [00:15:35] Speaker 05: Let's make it lighter. [00:15:36] Speaker 05: Let's save cost. [00:15:37] Speaker 05: And he did Fresnel. [00:15:39] Speaker 05: And, Your Honors, what did he do with Fresnel? [00:15:43] Speaker 04: Fresnel was not new either. [00:15:44] Speaker 05: No, Fresnel's not new either. [00:15:45] Speaker 05: But if we're going to talk about what is it that Mr. Dolgoff is interested in when he talks about a Fresnel polarizer, he's interested in the Fresnel structure. [00:15:55] Speaker 05: The passage that Cascades principally relied on in its briefing was a passage where he said that he had devised a Fresnel-McNeil prism. [00:16:04] Speaker 05: OK, so let's say that's a type of Fresnel polarizer. [00:16:07] Speaker 05: But he had devised a Fresnel-McNeil prism. [00:16:10] Speaker 05: What did he say about that prism? [00:16:11] Speaker 05: This is column 44, page appendix 208. [00:16:17] Speaker 05: He said, it's got a multiplicity of tiny sawtooth surfaces, weighs much less, consumes less space, costs less to produce. [00:16:26] Speaker 05: Column 44, lines 2 through 8. [00:16:31] Speaker 05: That's what he's interested in, is that Fresnel structure. [00:16:34] Speaker 05: And it goes on and on. [00:16:36] Speaker 05: We can look at what he says about Fresnel prisms. [00:16:40] Speaker 05: Let me just take an example that's from the same page of the joint appendix, the preceding page of the joint appendix, page 207, column 42, line 24. [00:16:50] Speaker 05: Fresnel prisms can be used to reduce size, weight, and cost. [00:16:55] Speaker 05: Let's look at what the gentleman says about Fresnel mirrors. [00:17:01] Speaker 05: We can look at figures 47 to 49 on page appendix 168. [00:17:07] Speaker 05: And we can look at the Fresnel mirrors. [00:17:10] Speaker 05: And we can see how, because there's this sawtooth construction, the mirror takes up less space. [00:17:19] Speaker 05: We can go to the next page of the figures, page 169. [00:17:23] Speaker 05: I'm sorry, I'm going too quickly. [00:17:26] Speaker 05: So page 168, figures 47 through 49 show the Fresnel mirror. [00:17:34] Speaker 05: And we can see the sawtooth construction, which makes it smaller. [00:17:39] Speaker 05: We go to page appendix 169, figure 51. [00:17:44] Speaker 05: We see the Fresnel parabolic reflector. [00:17:48] Speaker 05: It's interesting because the dash line shows what a normal parabolic reflector looks like. [00:17:53] Speaker 05: He uses the Fresnel structure, and that allows him to have a narrower opening. [00:17:57] Speaker 05: And the narrower opening is described at column 34, line 5 of the pack. [00:18:02] Speaker 05: Now, here's something that's very interesting about the Fresnel parabolic reflector. [00:18:07] Speaker 05: Mr. Dolgov says this is in column 34, lines 1 through 3. [00:18:13] Speaker 05: The same logic can be used to produce other surfaces, such as a Fresnel elliptical reflector and the like. [00:18:21] Speaker 05: What the gentleman is interested in is Fresnel structure. [00:18:24] Speaker 05: He's not interested in the particular composition of the polarizer. [00:18:27] Speaker 05: There's just no basis in this record to disturb the board's [00:18:32] Speaker 05: decision that a Fresnel polarizer is as the board found it to be. [00:18:37] Speaker 05: No coding, no polarization conversion. [00:18:42] Speaker 05: Let me just very briefly mention conversion. [00:18:44] Speaker 05: It's been unclear to us in reading the briefing whether there is a challenge on the conversion point. [00:18:50] Speaker 05: I think the principal argument here on appeal is whether or not a Fresnel polarizer requires coatings. [00:18:56] Speaker 05: We think it doesn't. [00:18:58] Speaker 05: Whether the Fresnel polarizer requires conversion, [00:19:01] Speaker 05: Also not correct, there's a specific embodiment in the patent that shows use of Fresnel Polarizer as an analyzer that doesn't do polarization conversion. [00:19:09] Speaker 05: That's described in our briefs. [00:19:10] Speaker 05: I'm out of time, so I'll cede the floor to Mr. Bramhall. [00:19:14] Speaker 05: Thank you, Your Honors. [00:19:18] Speaker 03: Thank you. [00:19:27] Speaker 00: Good morning, Your Honors. [00:19:29] Speaker 03: You have seven minutes. [00:19:31] Speaker 00: I want to just pick up where Mr. Ball left off for just a moment. [00:19:36] Speaker 00: There's one other element, I think, that supports our position in terms of an optical coating being too narrowing. [00:19:43] Speaker 00: So not only are holograms one other option at the same location as the dielectric coating, but if you look at column 46 of the patent lines 21 to 23, you see yet another option. [00:19:56] Speaker 00: And this other option is the use of a simple diffraction-grade [00:20:01] Speaker 00: You see, it says, another way to reduce the size, weight, and cost of the McNeil or Fresnel polarizer is with the use of holograms or simple diffraction gratings. [00:20:11] Speaker 00: And those are physical structures that would be added at that interface, not an optical coding. [00:20:18] Speaker 00: I also wanted to address the point. [00:20:20] Speaker 00: How do we know that? [00:20:21] Speaker 00: How do we know what an optical coding is and how it's distinguishable from what you just read to us? [00:20:26] Speaker 00: Well, I think that there's an aspect here of the plain ordinary meaning of a coding. [00:20:32] Speaker 00: So an optical coding, when they were originally discussing it, Cascades, was in connection with the multi-dialectic coding that goes at the interface. [00:20:41] Speaker 00: Are there other kinds of optical codings apart from that one you just said? [00:20:47] Speaker 00: The one that I mentioned, the diffraction grating? [00:20:49] Speaker 00: No, the multi, yeah. [00:20:51] Speaker 00: Yeah, I think there are other options. [00:20:52] Speaker 00: I think it's a broad category, and the multi-dielectric coatings is one example. [00:20:57] Speaker 01: The problem with this case is that these are very technical terms, and all we have is the specification to discuss whether they're not optical coatings or they are optical coatings. [00:21:10] Speaker 01: And you say one thing, your friend says the other thing. [00:21:14] Speaker 01: I mean, you may be wrong for all I know. [00:21:16] Speaker 01: You may be right. [00:21:17] Speaker 01: I have no idea without expert testimony to distinguish between the two. [00:21:23] Speaker 00: Well, there is one other disclosure that I think may help, Your Honor, on that point. [00:21:28] Speaker 00: There's a disclosure in the patent that actually says, and hopefully I can find this, and I was able to, at column 42 to 43, there's actually a disclosure regarding [00:21:40] Speaker 00: the use of a dielectric surface, so that's just the plastic surface, the glass surface alone, and it still accomplishes the same polarization splitting aspect. [00:21:50] Speaker 00: This is column 42, lines 65 to column 43 at about line 3, and it says here that the McNeil prism makes use of the fact that light, which hits a dielectric surface at an angle such as Brewster's angle, which is 90 degrees, [00:22:08] Speaker 00: or excuse me, 45 degrees, splits into reflected and transmitted beams which are somewhat orthogonally polarized. [00:22:16] Speaker 00: And then it goes on to say you could add layers of coating to make that even better. [00:22:20] Speaker 00: But what that discloses is that even without a coating, you still get the effect you're looking for. [00:22:26] Speaker 03: Why is this important? [00:22:27] Speaker 03: I mean, it's a construction of whether we have coating or not. [00:22:31] Speaker 03: It's not dispositive here, is it? [00:22:33] Speaker 00: No, I don't think it is because under [00:22:36] Speaker 00: In the prior art, and your honor's asked a question about that, both Sato and Mitsutake have what we would consider. [00:22:43] Speaker 03: So even if we accept the construction of the appellant here, of Cascades, how does that affect the prior art? [00:22:54] Speaker 03: Do we still have an invalidity situation? [00:22:59] Speaker 00: Yes, absolutely, your honor. [00:23:00] Speaker 00: Now the issue from our perspective is that the board didn't make any factual findings about those two. [00:23:06] Speaker 00: about the optical coding of those two references, Sato and Mitsutake, because the board adopted our construction, which did not require an optical coding. [00:23:14] Speaker 00: So if there were a finding that there needed to be an optical coding, then we may need to remand and then show that the prior art has the optical coding. [00:23:23] Speaker 00: That is true. [00:23:26] Speaker 00: And let me just address one point. [00:23:28] Speaker 00: Mr. Mann mentioned that the hologram issue did not come up, but it did come up. [00:23:33] Speaker 00: A4224, our reply brief, page 19, we raised this exact issue. [00:23:39] Speaker 00: So they were on notice of this going into the hearing. [00:23:42] Speaker 00: We raised it at that point in our reply because they raised it in their patent owner response, and that was the appropriate time. [00:23:48] Speaker 00: I just have one other point I'd like to raise, Your Honors, which is at the beginning, there was a question of whether this is all about claim construction. [00:23:55] Speaker 00: And at least with respect to the means for enhancing brightness, it's not, because there was [00:24:00] Speaker 00: agreement on the construction for means for enhancing brightness, both in terms of the function and the structure. [00:24:06] Speaker 00: So there, the real question is whether the prior art discloses the corresponding structure. [00:24:13] Speaker 00: So that would be a substantial evidence question, as opposed to a claim construction question. [00:24:17] Speaker 00: So unless there are any other questions for me, the board be affirmed. [00:24:21] Speaker 03: OK, thank you. [00:24:22] Speaker 03: Thank you. [00:24:29] Speaker 02: Thank you, your honor. [00:24:30] Speaker 02: And to address your honor's question about the authority we're relying on regarding the coin term, we're relying on NetWord LLC v. Central Corp. [00:24:41] Speaker 02: That's a 242 F. [00:24:43] Speaker 02: 3rd 1347, a decision of this court from 2000. [00:24:47] Speaker 02: I'm sorry. [00:24:48] Speaker 02: Give me that side again. [00:24:49] Speaker 02: Certainly. [00:24:49] Speaker 02: It's 242 F. [00:24:50] Speaker 02: 3rd 1347. [00:24:54] Speaker 02: And your honor, this is cited at page eight of our reply brief. [00:24:58] Speaker 02: that might make it more easier. [00:25:00] Speaker 02: A couple other questions, Your Honor. [00:25:03] Speaker 02: I just want to address these quickly. [00:25:05] Speaker 02: Council was referring to the patent itself. [00:25:07] Speaker 02: He quoted some language from Column 44. [00:25:11] Speaker 02: What the Council did not say is immediately following that, the patent says, this is referring to the Fresnel polarizer. [00:25:19] Speaker 02: It says, Figure 78 depicts this device, that being the Fresnel polarizer. [00:25:23] Speaker 02: It says, a multi-layer dielectric coating is deposited, et cetera. [00:25:26] Speaker 02: So right after, [00:25:28] Speaker 02: the language that was quoted by Council, the inventor himself describes it as having a multi-layer coating. [00:25:33] Speaker 02: But again, I don't want to belabor this point. [00:25:36] Speaker 02: The point I'm making is whether it's a diffraction grating, whether it's a coating, whether it's a hologram, there's always something. [00:25:43] Speaker 02: It's not simply a vaguely defined, stepped glass surface that somehow magically performs polarization. [00:25:51] Speaker 02: That's the point we're trying to make. [00:25:53] Speaker 02: And again, we're saying that that structure was not disclosed by [00:25:57] Speaker 02: Mitsutaki or Sato. [00:26:00] Speaker 04: How does net word specifically read on coined? [00:26:06] Speaker 02: It basically, it says that you can't claim more than what you've actually invented. [00:26:11] Speaker 04: Yeah, that's a general concept. [00:26:13] Speaker 02: Well, so that's how, I haven't read that case in a while, Your Honor. [00:26:18] Speaker 02: The short answer is if I invent a new structure, I can't turn around later on and say, oh, [00:26:26] Speaker 02: That also includes that stuff I didn't describe that somebody else invented. [00:26:30] Speaker 02: But your use of a coin term is to limit a construction. [00:26:35] Speaker 02: Exactly. [00:26:35] Speaker 02: Paradoxically, what we're arguing here is the claim should be narrowly construed to avoid the prior arc, whereas usually the situation, as we're saying, it should be broader. [00:26:45] Speaker 04: So how is that case on point? [00:26:49] Speaker 02: It may not be. [00:26:50] Speaker 02: That is a case we cited then, Your Honor. [00:26:54] Speaker 02: Thank you for your concern. [00:26:56] Speaker 02: But that's the case that we cited in our brief. [00:27:00] Speaker 02: Do I have any more time? [00:27:05] Speaker 03: You have a minute and a half. [00:27:06] Speaker 02: OK, the one thing I wanted to raise is on the means for enhancing brightness. [00:27:10] Speaker 02: Our point on that thing is, although we agreed on the structure, it's the way in which the function is accomplished. [00:27:17] Speaker 02: Throughout this patent, Mr. Golgoff has said his goal is to have uniform brightness. [00:27:23] Speaker 02: That appears in the title of his patent. [00:27:25] Speaker 02: The Brandt reference, which was principal in validating some of the earlier claims, specifically says that there is no uniform brightness. [00:27:34] Speaker 02: He specifically makes it brighter in the center and dimmer as you get out to the corners. [00:27:39] Speaker 02: Mr. Dolgoff does the exact opposite, and that comes into the way and the result of the means for enhancing brightness. [00:27:47] Speaker 02: So that's the significance of that. [00:27:49] Speaker 02: We haven't addressed that, but I did want to raise that point. [00:27:52] Speaker 02: So with that, I think we've belabored this long enough, Your Honor. [00:27:55] Speaker 02: I want to thank you. [00:27:56] Speaker 02: Thank you, sir. [00:27:57] Speaker 02: Thank you.