[00:00:03] Speaker 01:
We have four cases on the calendar this morning, two patent cases, one from the PTAB and one from the District Court, a case from the Claims Court, and a case from the MSPB, Governor Boyle's case.

[00:00:21] Speaker 01:
The first case is Gold Charm Limited versus Samson Toshiba and Funai, 2017-1738.

[00:00:33] Speaker 01:
Mr. Tetre, is it?

[00:00:34] Speaker 01:
TC, your honor.

[00:00:35] Speaker 01:
TC.

[00:00:37] Speaker 01:
Please proceed.

[00:00:38] Speaker 01:
Thank you.

[00:00:49] Speaker 04:
May it please the court, counsel.

[00:00:52] Speaker 04:
We're here today because the board, although it cited the broadest reasonable interpretation for the claim construction standard,

[00:00:59] Speaker 04:
went well beyond that standard in committing two basic reversible errors.

[00:01:05] Speaker 04:
The first was that the board ignored the specifications repeated disparagement of the prior art six-step photolithography method, and the specifications expressed exclusion of liftoff, and failed to limit the claims in accordance with those statements in the specification.

[00:01:24] Speaker 03:
The board's effort to characterize it as to that one,

[00:01:28] Speaker 03:
The problem is in footnote nine of the board opinion, they say it doesn't really make any difference because Takazawa doesn't have six steps and has five steps.

[00:01:38] Speaker 04:
Correct, but it doesn't have the five steps that are recited in claim one.

[00:01:41] Speaker 04:
There's five different steps.

[00:01:43] Speaker 04:
So even though Takazawa has five steps, five photolithography steps, they aren't the five of claim one.

[00:01:49] Speaker 04:
So it wouldn't have made a difference.

[00:01:53] Speaker 04:
The board's second error was to ignore the claim language of step D, which itself recites and relies upon the completed result of step C, i.e.

[00:02:00] Speaker 04:
refers to said operative semiconductor formed in step C, in arriving at its conclusions that step C and D can be performed concurrently.

[00:02:10] Speaker 03:
Is there conflicting evidence as to whether the steps of Takazawa are the same as the steps in the patent, if you limit it to the five steps?

[00:02:22] Speaker 04:
No, there isn't, Your Honor.

[00:02:24] Speaker 04:
The steps of Takazawa are not the same five photolithography steps as in this case, for a lot of different reasons.

[00:02:30] Speaker 03:
That was agreed?

[00:02:31] Speaker 03:
I'm sorry?

[00:02:32] Speaker 03:
That was agreed before the board?

[00:02:34] Speaker 04:
Well, I don't know if I would characterize it as agreed.

[00:02:37] Speaker 04:
I don't think it was disputed.

[00:02:38] Speaker 04:
Takazawa was a different type of process.

[00:02:40] Speaker 04:
It was what's called an etch stop.

[00:02:42] Speaker 04:
And so one of the steps in Takazawa was putting down an etch stop layer.

[00:02:46] Speaker 04:
That's not this pattern, this

[00:02:49] Speaker 04:
specification, this claim does not talk about or address a net stop later.

[00:02:52] Speaker 04:
So it was a different type of process, and they were different types of steps.

[00:02:57] Speaker 04:
Did I answer your honest question?

[00:02:59] Speaker 03:
Well, you did, but I'm still puzzled about footnote nine, because the board seems to disagree with you.

[00:03:05] Speaker 04:
Well, the board disagreed with me about, firstly, everything.

[00:03:08] Speaker 04:
And that was one of them.

[00:03:10] Speaker 04:
And we disagree with the board about that, too.

[00:03:11] Speaker 01:
That's why you're here.

[00:03:12] Speaker 04:
That's why I'm here.

[00:03:13] Speaker 04:
That's correct.

[00:03:14] Speaker 04:
I would be going second if they'd agree with me.

[00:03:17] Speaker 04:
The bottom line, judges, is that reversal with respect to either of these constructions, particularly the second one with respect to order, both of them would render the board's decisions with regard to Takasawa and Hoshino incorrect.

[00:03:31] Speaker 04:
The broadest reasonable construction is not a limitless standard, and it must be reasonable in light of the specification.

[00:03:38] Speaker 04:
Construction cannot be divorced from the spec.

[00:03:41] Speaker 04:
And the broadest reasonable construction rubric does not give the PTO an unfettered license to import limitations to embrace anything remotely related to the claimed invention.

[00:03:51] Speaker 04:
And the fact that an express limitation does not appear in the claims doesn't mean that the claims shouldn't be construed as limited.

[00:03:58] Speaker 04:
That was this court's decision in its November decision in Rembrandt.

[00:04:02] Speaker 04:
As in Rembrandt, the clear, repetitive, and uniform nature of the description of the invention in this case

[00:04:08] Speaker 04:
in combination with rejection of the prior art methods, limit the scope of the invention, particularly whereas here, they're inextricably interwoven among the descriptions of the primary purpose of the invention and how the invention overcomes problems in the prior art.

[00:04:24] Speaker 04:
There are numerous clear, repetitive references to the five-step patterning nature beginning in the adjunct.

[00:04:30] Speaker 03:
Is topazawa mentioned in the specification?

[00:04:33] Speaker 04:
I do not believe it is.

[00:04:34] Speaker 04:
No.

[00:04:35] Speaker 04:
That reference itself?

[00:04:36] Speaker 03:
Yeah.

[00:04:37] Speaker 04:
No.

[00:04:38] Speaker 04:
I don't believe so.

[00:04:39] Speaker 04:
No.

[00:04:41] Speaker 03:
And do the distinctions that were made in the specification apply to Takazawa?

[00:04:47] Speaker 04:
Well, they know, they don't, in that, well, let me put it this way.

[00:04:54] Speaker 04:
The argument of the appellees is that because Takazawa has an additional step, not among these steps involving the edge stop, and the comprising claim is open-ended, Takazawa still anticipates.

[00:05:07] Speaker 04:
The argument was is that, OK, you have these five steps that are limited in this claim.

[00:05:12] Speaker 04:
Takazawa has a different one of the five, but it's an additional step, i.e., it's not one of the five recited.

[00:05:18] Speaker 03:
I guess what I'm asking is, when you refer to that one step that's not one of the five recited in Takazawa, is that a step that's disclaimed or discussed in the specification as being eliminated by the

[00:05:36] Speaker 03:
by this approach that's taken in the patent.

[00:05:41] Speaker 04:
If I understand Your Honor's question, the answer is this.

[00:05:43] Speaker 04:
This claim, claim one of this patent and this specification would not support a claim element that was recited in Takasawa regarding an etched stop leg.

[00:05:51] Speaker 03:
No, but I think my question is, you said that there's a disparagement of the prior art in the specification, right?

[00:05:58] Speaker 03:
Yes.

[00:05:59] Speaker 03:
And what I'm trying to do is to relate that to Takasawa, even though Takasawa's not mentioned

[00:06:04] Speaker 03:
in specification and whether that disparagement applies to the Takazawa approach.

[00:06:09] Speaker 03:
Do you understand what I'm saying?

[00:06:10] Speaker 04:
Yeah, I do, Your Honor.

[00:06:11] Speaker 04:
And let me see if I can answer that question.

[00:06:12] Speaker 04:
The answer is it does apply.

[00:06:14] Speaker 04:
Because in order for Takazawa to anticipate, there has to be an additional photolithography step not recited in these claims.

[00:06:22] Speaker 04:
Even though there's only five claim elements and there's only five photolithography steps in Takazawa, there would have to be an additional one.

[00:06:30] Speaker 04:
That's why these apply to Takazawa as well.

[00:06:33] Speaker 03:
But there's no discussion.

[00:06:34] Speaker 03:
You said that there was one step that was added in Takazawa, and two others were combined.

[00:06:40] Speaker 03:
What is this step that was added?

[00:06:42] Speaker 04:
No, no, no, no.

[00:06:44] Speaker 04:
Takazawa is, there's two types of things.

[00:06:46] Speaker 04:
There's etched-stopped TFT arrays, and then there's channel etched.

[00:06:50] Speaker 04:
Takazawa was an etched-stopped.

[00:06:52] Speaker 04:
And in order to do that, when you pour the acid on to eat away at part of these things, you have to first put down a layer that would stop the acid as it eats through.

[00:07:01] Speaker 04:
talks about edge stop and what they call an edge block.

[00:07:04] Speaker 04:
The reason why this is relevant with respect to this conversation is that the combination of elements is with respect to claim one of the asserted patent.

[00:07:12] Speaker 04:
Takazawa has five steps, yes, but they're different than the five steps.

[00:07:17] Speaker 04:
So in order to build the invention of the TFT of this case in Takazawa.

[00:07:22] Speaker 03:
You said to me earlier that Takazawa has, combines two steps and has one additional step, right?

[00:07:28] Speaker 04:
Now, if I said that, I misspoke.

[00:07:29] Speaker 04:
That's not what I meant to say.

[00:07:30] Speaker 04:
Takazawa has five photolithography steps.

[00:07:35] Speaker 04:
But in order to practice Takazawa, you'd have to add one.

[00:07:38] Speaker 04:
That's my point.

[00:07:39] Speaker 04:
It's different than the photolithography steps.

[00:07:41] Speaker 04:
The five steps in Takazawa are different than the five steps in the assertive pattern.

[00:07:47] Speaker 03:
So one of the five steps is different, right?

[00:07:50] Speaker 03:
Well, at least one.

[00:07:51] Speaker 03:
Yes, Your Honor.

[00:07:52] Speaker 03:
And which step is that?

[00:07:53] Speaker 04:
That's the one in Takazawa that has to do with the edge stock.

[00:07:56] Speaker 03:
OK.

[00:07:57] Speaker 03:
Does the patent specification say that our invention is excluding the etch stock?

[00:08:06] Speaker 04:
It doesn't say that it excludes it, Your Honor, but it has absolutely nothing in the specification to support that it would include.

[00:08:12] Speaker 04:
I could not read, you cannot read the claims of this patent to read on an etch stock TFT array.

[00:08:17] Speaker 04:
There's no discussion.

[00:08:19] Speaker 01:
What does Alistair say about the order of step C and D?

[00:08:23] Speaker 04:
Well, it's not what Alistair said.

[00:08:26] Speaker 04:
The order of Step C and D in this instance.

[00:08:31] Speaker 04:
You think C has to be before D. Well, the claims dictate that C has to be before D. Yes, Your Honor.

[00:08:36] Speaker 04:
And so the claims and the specifications.

[00:08:38] Speaker 01:
But that's not what the board found, right?

[00:08:39] Speaker 04:
Correct, Your Honor.

[00:08:39] Speaker 04:
That's right.

[00:08:40] Speaker 04:
The board found that the steps did not have to be.

[00:08:43] Speaker 04:
Actually, what the appellant appellees argued was that Step C is not, doesn't have to be completed before Step D begins.

[00:08:53] Speaker 04:
That's not consistent with the claim language.

[00:08:55] Speaker 04:
The claim language says forming an operative semiconductor.

[00:08:58] Speaker 04:
All the experts, the specification, the intrinsic record indicate that forming means putting it down and then patterning it.

[00:09:05] Speaker 04:
Step D then talks about adding additional elements on said formed, on said operative semiconductor.

[00:09:12] Speaker 04:
So the claims themselves, not unlike EZPass in our brief, talk about where the claim language refers to the completed results of the prior step.

[00:09:20] Speaker 04:
Those steps must be performed in order.

[00:09:22] Speaker 01:
If we don't agree with you with respect to Takazawa and the five steps, your point you would focus on the order of C and D. Yes.

[00:09:35] Speaker 01:
And what does Takazawa have to say?

[00:09:37] Speaker 01:
Disclose about that.

[00:09:39] Speaker 04:
Well, in order to do it, the steps of C and D when practiced in this order would not be taught by or don't suggest or aren't found in Takazawa.

[00:09:48] Speaker 04:
Because there has to actually be an intervening step.

[00:09:51] Speaker 04:
So that would differentiate Takazawa.

[00:09:53] Speaker 04:
The order would also differentiate over the prior art.

[00:09:56] Speaker 01:
The order or an intervening step?

[00:09:59] Speaker 04:
Well, they have to be committed in that order without an intervening step.

[00:10:03] Speaker 04:
But there is no teaching.

[00:10:05] Speaker 04:
Again, there is no teaching in this patent that would support the inclusion in these claims of an intervening step of Takazawa.

[00:10:12] Speaker 04:
It's not in there.

[00:10:13] Speaker 04:
If I tried to do that, I'd have a 112 problem all over the place.

[00:10:17] Speaker 03:
Yeah, but where is the disparagement that you're relying on in the specification here of the prior art?

[00:10:23] Speaker 04:
Well, with respect to the disparagement, it begins in the abstract.

[00:10:31] Speaker 04:
Hence, the above-mentioned method needs to carry out only five photolithography steps to fabricate a thin-film transistor array.

[00:10:39] Speaker 04:
whereas the conventional methods have to carry out six photolithography steps.

[00:10:42] Speaker 03:
So it's just five versus six.

[00:10:44] Speaker 03:
And your problem is that Takazawa only has five steps.

[00:10:48] Speaker 03:
But they're not the same five.

[00:10:49] Speaker 03:
I understand that.

[00:10:50] Speaker 03:
But the question is, is there disparagement of using different steps in the specification, or just a generalized disparagement of using six steps instead of five?

[00:11:01] Speaker 04:
I'm sorry.

[00:11:01] Speaker 04:
And I didn't hear the first part of your question.

[00:11:04] Speaker 03:
There is disparagement in the specification of using six steps instead of five.

[00:11:10] Speaker 03:
Correct.

[00:11:11] Speaker 03:
But you agree that Takasawa only has five steps.

[00:11:17] Speaker 03:
What I'm asking you, is there disparagement in the specification of using a different five steps than is included here in the claims?

[00:11:28] Speaker 03:
And I thought you said earlier that there isn't any specific

[00:11:32] Speaker 04:
There isn't.

[00:11:32] Speaker 04:
But again, Takazawa.

[00:11:35] Speaker 03:
Is there disparagement of using a different five steps than is set forth in the claims here?

[00:11:43] Speaker 03:
No.

[00:11:44] Speaker 04:
But with this caveat, Your Honor, in order for Takazawa to anticipate, it has to have an additional edge stop step.

[00:11:52] Speaker 04:
That's the point.

[00:11:53] Speaker 04:
And so it has to have an additional photolithography step, because there are five different ones that don't get you

[00:12:00] Speaker 04:
to this TFT array.

[00:12:01] Speaker 04:
And both the experts admitted that the method, the process, the steps, the order that they take all result in different TFTs.

[00:12:09] Speaker 04:
And so Takazawa doesn't.

[00:12:10] Speaker 04:
In order for Takazawa to anticipate it, it has to have an additional step.

[00:12:14] Speaker 04:
And so the answer to your question is yes.

[00:12:16] Speaker 04:
When we disparage the prior art and say it's these five, that's it.

[00:12:20] Speaker 04:
No more photolithography steps.

[00:12:22] Speaker 04:
Takazawa needs an additional photolithography step, i.e.

[00:12:25] Speaker 04:
it needs putting something else down and having it patterned.

[00:12:29] Speaker 04:
It doesn't directly say these are the different ones.

[00:12:32] Speaker 04:
But in order for Takazawa to anticipate, it needs an additional photolithography step, which it doesn't have.

[00:12:39] Speaker 04:
I'll just recite.

[00:12:40] Speaker 03:
The problem is it's not a sixth step.

[00:12:42] Speaker 03:
It's a fifth step.

[00:12:44] Speaker 04:
But judge, for anticipation, if it's five different steps, it doesn't anticipate.

[00:12:49] Speaker 04:
So that's not, I mean, I understand what you're saying was my problem.

[00:12:51] Speaker 02:
I'm a little confused.

[00:12:53] Speaker 02:
Are you saying you have a step that Takazawa doesn't have?

[00:12:59] Speaker 02:
We have five steps.

[00:13:00] Speaker 02:
No, what you're arguing to me doesn't make a whole lot of sense because you're saying Takazawa doesn't anticipate because it has six steps instead of five.

[00:13:10] Speaker 02:
But putting that aside, does Takazawa have every one of your five steps?

[00:13:17] Speaker 04:
No, it has five different steps.

[00:13:20] Speaker 02:
Why didn't you argue that?

[00:13:22] Speaker 02:
instead of this whole thing about claim construction in five versus six.

[00:13:26] Speaker 02:
In claim one, which step doesn't Takazawa have?

[00:13:31] Speaker 04:
Well, in order for Takazawa to operate, one of its steps is a... You're not going to answer my question, are you?

[00:13:39] Speaker 02:
No, no.

[00:13:39] Speaker 02:
I'm trying to, Your Honor.

[00:13:40] Speaker 02:
Can't you claim one in either a... First of all, I don't understand which of these you'd consider your five steps, because a through g is more than five.

[00:13:47] Speaker 02:
But putting that aside,

[00:13:49] Speaker 02:
Which A through G does Takazawa not have?

[00:13:53] Speaker 04:
Well, let me answer the first part of your question.

[00:13:56] Speaker 04:
It's five photolithography steps.

[00:13:58] Speaker 02:
G is six steps.

[00:14:00] Speaker 02:
Which photolithography step, reciting claim one, does Takazawa not have?

[00:14:06] Speaker 02:
Don't tell me Takazawa has something more.

[00:14:07] Speaker 03:
It doesn't have C and D. That's because it combines things.

[00:14:12] Speaker 03:
In other words, if we were to reject your theory about the steps having to be in order,

[00:14:19] Speaker 03:
Takasawa does disclose all five steps.

[00:14:25] Speaker 03:
It just combines two of them.

[00:14:29] Speaker 04:
No.

[00:14:29] Speaker 04:
Well, I'm not trying to avoid Your Honor's question.

[00:14:32] Speaker 04:
Takasawa is a different process.

[00:14:33] Speaker 04:
It's a net-stop process.

[00:14:35] Speaker 04:
And so to say that there is a one-to-one correspondence between my five steps and the Takasawa five steps is incorrect.

[00:14:42] Speaker 04:
And it's the specification, Your Honor.

[00:14:43] Speaker 04:
The specification says, in column five, that the steps must be conducted

[00:14:49] Speaker 04:
in this order.

[00:14:51] Speaker 04:
And then it goes through at columns five from lines 50 through 67 and recites the actual order in which it's supposed to be.

[00:14:57] Speaker 04:
So the claims themselves dictate that the steps are in order, that C has to be completed before D, because it talks about set operative semiconductor.

[00:15:06] Speaker 04:
The specification says that the steps have to be in order.

[00:15:11] Speaker 04:
And in fact, the specification at

[00:15:16] Speaker 04:
at column 5 lines 5 through 8, well, says that they have to be in order.

[00:15:20] Speaker 04:
And then it says, talking about step C, thus there is formed past tense at column 5 lines 64 through 66, the patterned amorphous silicon film 21, which is the operative semiconductor, which constitutes a major part of the TFT.

[00:15:36] Speaker 04:
In an effort to get around that, the appellees argued that step C does not have to be completed.

[00:15:46] Speaker 04:
And their argument is belied by the specification.

[00:15:48] Speaker 04:
The specification talks about it being formed.

[00:15:50] Speaker 04:
It uses then, there, and there, thus, and thereafter, and ultimately talks about the last part, which is etching away part of the operative semiconductor, to form the TFT, not the operative semiconductor lab.

[00:16:02] Speaker 04:
I say that my time is up.

[00:16:03] Speaker 01:
Your time is up.

[00:16:04] Speaker 01:
We'll give you three minutes to report back.

[00:16:06] Speaker 01:
Mr. Haslam?

[00:16:16] Speaker 00:
The 589 patent in the summary of the invention and elsewhere says that the goal of that invention was to eliminate one process step and to have five steps.

[00:16:32] Speaker 00:
There is no reference in the specification to a etch stop versus a back channel.

[00:16:39] Speaker 00:
There is no discussion of disparaging that process.

[00:16:45] Speaker 00:
Takazawa has, as the board indicated in footnote nine, five processing steps.

[00:16:52] Speaker 00:
And it has the same, it accomplishes its five steps in a way similar to what the specification says.

[00:17:01] Speaker 00:
As the abstract and column six lines 50 through 58 say, one of the ways in which the patent achieves five steps by eliminating one is to combine two steps which allows

[00:17:15] Speaker 00:
the via holes to be opened at the same time.

[00:17:18] Speaker 00:
Takasawa does the same thing.

[00:17:20] Speaker 00:
Takasawa does have a photolithographic step which creates the edge stop.

[00:17:24] Speaker 00:
But of critical importance here on C and D, it does perform C and D. It does it simultaneously.

[00:17:33] Speaker 00:
But the end result is the same TFT that is specified in the preamble of claim one.

[00:17:42] Speaker 00:
Claim one is very generic as to saying that it is performing a TFT array with certain structures in it.

[00:17:52] Speaker 00:
And the body of the claim refers back to those structures.

[00:17:56] Speaker 00:
And so what Takazawa does and what claim one does is to perform and create a TFT with the same structure.

[00:18:05] Speaker 00:
as called out in the specification and claim one of the 589 patent as in Taka's hour.

[00:18:11] Speaker 01:
Well, how can a process that consists of C and D together be within the scope of C and D in the patent?

[00:18:23] Speaker 01:
Because you've got forming semiconductor on insulating form, then forming source electrodes on said

[00:18:31] Speaker 01:
said operative semiconductor, which means it must have been there before.

[00:18:37] Speaker 00:
On means simply above.

[00:18:40] Speaker 00:
And we get that by looking at step 1G of claim one, which says you form a pixel electrode on the substrate.

[00:18:52] Speaker 00:
There is no dispute that the pixel electrode is not on in the sense of physically on the substrate.

[00:18:58] Speaker 00:
It is over the substrate.

[00:19:00] Speaker 00:
And as Takazawa shows, and as Dr. Watts admitted, the TFT is not formed, it is not operable, it is not operative until you have etched the N plus layer.

[00:19:18] Speaker 00:
And that is done in the same step in Takazawa, and it is done in a later step in the patent.

[00:19:29] Speaker 00:
Operative semiconductor, at best, what the patent talks about as the operative semiconductor is, at best, ambiguous in the specification.

[00:19:38] Speaker 00:
And I think that supports the board's broadest reasonable construction.

[00:19:42] Speaker 01:
Do you agree that Plan 5 encompasses five steps, is limited to five steps?

[00:19:51] Speaker 00:
I believe that under the broadest reasonable construction, the board was correct in finding, based on the language of this specification, that it was not limited to five steps.

[00:20:01] Speaker 01:
Well, what about the top of column four of the patent?

[00:20:04] Speaker 01:
Inevit, as defined in claim one, tells you what claim one means.

[00:20:11] Speaker 01:
You need to carry out only five photolithography steps.

[00:20:15] Speaker 01:
Doesn't the specification tell you what claim one means?

[00:20:19] Speaker 00:
You need only carry out five.

[00:20:21] Speaker 00:
It doesn't say you can't carry out six.

[00:20:23] Speaker 03:
But the point was that Takazawa, in fact, only has five steps.

[00:20:28] Speaker 03:
It is.

[00:20:30] Speaker 03:
And so it doesn't run into the notion that six steps under their theory isn't permissible.

[00:20:39] Speaker 03:
But it has five steps.

[00:20:41] Speaker 03:
It has an additional step, the edge-stop step, but it limits itself to five by combining two of the other steps.

[00:20:49] Speaker 00:
Correct.

[00:20:51] Speaker 00:
And the order, the number of steps is relevant only to the alternative ground of Hoshino anticipating certain claims, because Hoshino has more than five steps.

[00:21:03] Speaker 00:
So the boards find... Did the boards help find?

[00:21:08] Speaker 00:
The board found that it anticipated, because of the board's construction, that it wasn't limited to five photolithographic steps.

[00:21:16] Speaker 03:
The alternative ground.

[00:21:17] Speaker 00:
It was an alternative ground.

[00:21:19] Speaker 00:
The board's ultimate conclusion that claims 2, 3, 5, and 6 are invalid stands, even if this court were to reverse the P-tab on the number of steps.

[00:21:32] Speaker 00:
Because Takazawa, as the board noted in footnote 9, only has five steps.

[00:21:38] Speaker 02:
I'm so little computer.

[00:21:41] Speaker 02:
Let's look at claim one, their claim one.

[00:21:45] Speaker 02:
I guess I take it steps A through, whichever are considered the five photolithography steps.

[00:21:53] Speaker 02:
You think Takazawa has all of them.

[00:21:56] Speaker 02:
It's just two of them are combined.

[00:21:58] Speaker 00:
Yes.

[00:21:58] Speaker 02:
Can you do an additional one?

[00:22:01] Speaker 00:
Well, it has five photolithographic steps.

[00:22:03] Speaker 00:
One of the photolithographic steps is used to form what's called an edge stop.

[00:22:08] Speaker 00:
But the critical, which is 1C and 1D, however you define what the operative semiconductor means, operative has to have some meaning.

[00:22:18] Speaker 00:
And there is no dispute, and the specification supports this, that until you etch the semiconductor films, you do not have an operative semiconductor.

[00:22:34] Speaker 00:
And that's shown if you look at column five,

[00:22:38] Speaker 00:
where it says, when it talks about the operative semiconductor film 6, it is pointing to the film 6 in the finished product, which is consistent with Dr. Watt's testimony that until you have etched the semiconductor films in the step later, in the same step that Takazawa has, where it etches the source drain and the N+, you don't have

[00:23:05] Speaker 00:
an operative semiconductor because, as Dr. Watts said, if it is just what is put down as the film, it'll short.

[00:23:12] Speaker 00:
So you have to do that etch step, which is done at the same time that the source and drain are done in Takazawa, which combines steps C and D. It doesn't eliminate those steps.

[00:23:25] Speaker 00:
It performs those steps.

[00:23:26] Speaker 00:
It does it in one step.

[00:23:29] Speaker 00:
It etches the source and drain, and then a second etch etches a portion

[00:23:34] Speaker 00:
of the semiconductor films to create the notch that allows the semiconductor to be operative.

[00:23:40] Speaker 00:
It basically eliminates the short, which is undisputed.

[00:23:45] Speaker 00:
And so I think if the court gets to the point of trying to determine on the order of steps what is step C and step D, the specification is ambiguous as to what it means is the operative semiconductor.

[00:23:58] Speaker 00:
There are suggestions that it's the finished product.

[00:24:01] Speaker 00:
It can't be just the semiconductor films, because those don't appear in the final product.

[00:24:09] Speaker 00:
And it can't be the islands, because those aren't operative at any point in time without further modification.

[00:24:20] Speaker 00:
And if the court has any further questions, I'd be happy to answer them.

[00:24:23] Speaker 00:
But I think, just to summarize, regardless of the outcome on the number

[00:24:30] Speaker 00:
photolithographic steps, we prevail.

[00:24:34] Speaker 00:
And the board's finding is correct because Takazawa has five steps.

[00:24:39] Speaker 00:
And it performs all five steps, all seven steps of claim one.

[00:24:47] Speaker 00:
But it combines step C and D, which is permissible.

[00:24:50] Speaker 01:
The board invalidated claims two through six.

[00:24:53] Speaker 01:
What's the status of claim one?

[00:24:56] Speaker 00:
Claim one was disclaimed long before the litigation.

[00:24:59] Speaker 00:
And I believe, although the record doesn't support it, it's disclaimed because it is invalid in light of numerous prior arts.

[00:25:07] Speaker 00:
And the PTAB did not invalidate because it did not institute on claim four.

[00:25:14] Speaker 00:
That claim went forward in the district court.

[00:25:17] Speaker 00:
And it did so because the specification doesn't show, and the prior art didn't show, where

[00:25:27] Speaker 00:
operative semiconductor was located at a specific location where the two lines, the drain line and bus line, overlapped.

[00:25:37] Speaker 01:
So claim four survives?

[00:25:40] Speaker 00:
Claim four survives because it was not instituted.

[00:25:44] Speaker 01:
Right.

[00:25:44] Speaker 01:
Thank you.

[00:25:46] Speaker 01:
Mr. Teseek?

[00:25:48] Speaker 04:
Teseek.

[00:25:49] Speaker 01:
Teseek, sorry.

[00:25:50] Speaker 04:
Yeah.

[00:25:51] Speaker 04:
As is typically the case, Mr. Edelman doesn't work.

[00:25:53] Speaker 04:
And I take the credit.

[00:25:55] Speaker 04:
In paragraph 31 of our brief,

[00:25:58] Speaker 04:
We lay forth the differences between Takazawa and us in our case.

[00:26:04] Speaker 04:
It's in page 31 of our moving brief.

[00:26:06] Speaker 04:
I won't read it for the court.

[00:26:08] Speaker 04:
There was no misunderstanding.

[00:26:11] Speaker 04:
At the appendix of page 366, 363, the Pelley's expert specifically indicated that step C requires forming an operative semiconductor on the gate insulating film corresponding to the operative semiconductor of the 589 patent.

[00:26:28] Speaker 04:
and disclosures forming an amorphous silicon on top of the gate insulating film.

[00:26:32] Speaker 04:
And she cites to the exact same parts of the specification that we've cited too, which the specification talks about forming that.

[00:26:40] Speaker 04:
That step is formed and completed.

[00:26:43] Speaker 04:
In order for them, and this goes back to Judge Hughes' question.

[00:26:46] Speaker 04:
Judge, there are more than five steps, but there are only five photolithography steps.

[00:26:51] Speaker 04:
And a photolithography step is a step where you put down something and then you pattern it.

[00:26:57] Speaker 04:
So for instance, there's a, there's a step about putting down an insulating film.

[00:27:01] Speaker 04:
All you do is you lay that film across the entire device.

[00:27:03] Speaker 04:
You don't then pattern and cut pieces of it away.

[00:27:05] Speaker 04:
So the answer to your question, Your Honor, is that there are more than five steps.

[00:27:10] Speaker 04:
But those additional steps aren't photolithography steps.

[00:27:13] Speaker 04:
And so, with, with respect to Takazawa, at, at the appendix at 1099.

[00:27:18] Speaker 02:
How many photolithography steps does Takazawa have?

[00:27:22] Speaker 04:
Takazawa has five.

[00:27:23] Speaker 04:
It has five photolithography steps.

[00:27:25] Speaker 04:
One of the photolithography steps, and it's actually in the appendix of page 1099, one of the photolithography steps is what I was talking about earlier, which is this etch stop block.

[00:27:34] Speaker 04:
Because in Takazawa, and counsel is correct, what happens is that this operative semiconductor layer in some port in between the source and drain electrodes has to be cut away at the bottom, at the end.

[00:27:48] Speaker 04:
And so in the disclosed embodiment in claim one, in the steps of that claim, that's done at the very end

[00:27:55] Speaker 04:
at column 6, lines 16 through 20, it talks about how you do that, how you use the source and drain electrodes that are already there as the mask.

[00:28:04] Speaker 04:
So it's not a photolithography step.

[00:28:06] Speaker 04:
You don't put something down and then take it away.

[00:28:09] Speaker 04:
And so the way we cut out that little piece at the end is just by etching it away at the very end.

[00:28:14] Speaker 04:
It's not a photolithography step.

[00:28:16] Speaker 04:
It's not a patterning step.

[00:28:18] Speaker 04:
In order to do that under the etched-stopped TFT of Takazawa, you actually

[00:28:22] Speaker 04:
to make this channel, this thing that's actually in between.

[00:28:25] Speaker 04:
Look, there's like a hole.

[00:28:27] Speaker 04:
And at the bottom is part of the operative semiconductor.

[00:28:29] Speaker 04:
In order for Taka-Zawa to work, you have to put a layer in there that will actually stop the acid from eating away at the end.

[00:28:36] Speaker 04:
So that's an additional patterning layer.

[00:28:38] Speaker 04:
Because Taka-Zawa was an etched-stop TFT.

[00:28:40] Speaker 04:
It was a different type of TFT.

[00:28:42] Speaker 04:
And all the experts agree.

[00:28:44] Speaker 04:
Different processes result in different results.

[00:28:47] Speaker 04:
So at page 1099, we actually list the different steps, the different photolithography steps.

[00:28:53] Speaker 04:
And in order for there to be five of the same steps, they have to combine C and D. That's this whole argument.

[00:28:59] Speaker 04:
They have to combine it.

[00:29:00] Speaker 04:
They have to say that you don't have to perform them in the order in which they're put in there.

[00:29:04] Speaker 04:
But the claim language and the specification and the word comprising, it's not a weasel word, as this Court said in an opinion yesterday.

[00:29:13] Speaker 04:
It doesn't override the spec.

[00:29:14] Speaker 04:
The specification was very clear.

[00:29:16] Speaker 04:
You can't do additional photolithography steps.

[00:29:19] Speaker 04:
That's what Takasawa does.

[00:29:20] Speaker 04:
And then the last page of Site 2 is page 1092, where our expert talks about the differences.

[00:29:28] Speaker 04:
I think that means my time is up.

[00:29:30] Speaker 01:
That's exactly what I mean.

[00:29:31] Speaker 01:
How about that?

[00:29:31] Speaker 01:
Thank you, Your Honor.

[00:29:32] Speaker 01:
Thank you.

[00:29:33] Speaker 01:
We'll take the case under review.