[00:00:19] Speaker 04:
Well, all you Pat lawyers have had a nice lesson in Veterans Administration.

[00:00:37] Speaker 04:
Mr. Arts.

[00:00:37] Speaker 04:
Yes.

[00:00:38] Speaker 00:
Good morning, Your Honor.

[00:00:46] Speaker 00:
May it please the Court.

[00:00:48] Speaker 00:
After a trial in the court of claims, the district court erred in refusing toward compensation to plaintiffs based on the infringing use by the government of her patented process to the tune of $45 million that are received in funding and ultimately spent researching the process which infringed her patents.

[00:01:10] Speaker 04:
OK.

[00:01:11] Speaker 04:
Let me ask you about that.

[00:01:12] Speaker 04:
I'm not going twice under your argument as about experimental use, and this is not

[00:01:17] Speaker 04:
Let me just go to the point where the guidelines seem to suggest in this case, and I think the experts confirmed, that there was a reasonable royalty for future sales at about 3% to 7%.

[00:01:30] Speaker 04:
Am I right about that?

[00:01:31] Speaker 00:
No.

[00:01:32] Speaker 00:
The government's expert did not address any reasonable royalties, said no royalty was appropriate because all of the uses were not commercial and were for research.

[00:01:44] Speaker 00:
So there was no royalty base and no royalty appropriate.

[00:01:48] Speaker 00:
The only evidence on a reasonable royalty that was put in was from our expert, which was 8% or 10%.

[00:01:54] Speaker 04:
Well, I'm not talking about the royalties to which your client may argue she's entitled with respect to the research stuff.

[00:02:00] Speaker 04:
I'm talking about future royalties.

[00:02:04] Speaker 04:
I mean, beyond this time, let's assume there is some commercial use or something your client would be eligible for.

[00:02:11] Speaker 04:
The Court of Federal Claims seemed to have said that he doesn't have jurisdiction.

[00:02:18] Speaker 04:
He made it to award relief for future infringement.

[00:02:22] Speaker 04:
And in that regard, he cited a 1981 Court of Claims case.

[00:02:28] Speaker 04:
Do you agree with his recitation of the law?

[00:02:32] Speaker 04:
I don't know.

[00:02:32] Speaker 04:
It's a question to me.

[00:02:33] Speaker 04:
One, I think the guidelines seem to suggest that you can get royalties for future sales.

[00:02:41] Speaker 04:
And so I'm not clear on what the claims was saying.

[00:02:47] Speaker 00:
So I guess there's two issues, obviously.

[00:02:49] Speaker 00:
One, the only evidence as to a royalty, as to what a royalty would be for the existing sales, the existing revenue, as well as future,

[00:02:59] Speaker 00:
was the 8% to 10% that was put in by our client, or put in by our expert.

[00:03:04] Speaker 00:
There wasn't any evidence as to what constitute a reasonable royalty that was put in by the government.

[00:03:11] Speaker 00:
So in terms of the answer to your question, in terms of what was in what.

[00:03:13] Speaker 04:
But I'm talking about the legal proposition about whether or not the court of federal claims had jurisdiction to award.

[00:03:20] Speaker 04:
Let's take off the table.

[00:03:21] Speaker 04:
Let's assume there hasn't been any commercial sale, and there would be no basis for awarding

[00:03:25] Speaker 04:
a retrospective royalty for any of this, what we call experimental stuff or whatever.

[00:03:30] Speaker 04:
But let's just talk about the future.

[00:03:33] Speaker 04:
Or do you just assume that it doesn't matter?

[00:03:35] Speaker 04:
Do you care about that?

[00:03:36] Speaker 04:
Because you assume that if there are future commercial sales, and this case stands, you'll be able to come in in the future and get a reasonable royalty?

[00:03:44] Speaker 00:
Well, I think in part, Your Honor, but the other part too is the unique aspect of Oak Ridge.

[00:03:49] Speaker 00:
There's never going to be any commercial activity on their part.

[00:03:52] Speaker 00:
their research institution.

[00:03:54] Speaker 04:
So while this isn't a relevant issue.

[00:03:56] Speaker 00:
I mean, we were seeking the future sales or future revenue for which we were seeking a royalty was to continue the existing royalty that we believe is entirely appropriate based on the research that the government has done using the invention.

[00:04:12] Speaker 00:
I mean, the statute 1498 doesn't require sales.

[00:04:16] Speaker 00:
The statute requires compensation to the plaintiff when their invention is used.

[00:04:22] Speaker 00:
are manufactured.

[00:04:23] Speaker 00:
And here, that's exactly what the government did.

[00:04:25] Speaker 00:
The government used her patented process and received $45 million that were specifically earmarked to allow them to engage in the research, which was deemed by the lower court to be an infringement.

[00:04:39] Speaker 00:
So in our view, however you characterize it, we actually believe that their use is commercial under the Madday case, or at least would be characterized as commercial under the Madday case.

[00:04:51] Speaker 00:
because it's in furtherance of their legitimate business interests.

[00:04:54] Speaker 00:
Their business interests are to perform research, research that will then generate more funding, research that will generate accolades for the researchers, which will then allow them to secure more funding.

[00:05:08] Speaker 00:
But nonetheless, even if it is deemed to be not commercial, not only the statute, but the Roche case out of this court, as well as the Pitcairn case, mandate

[00:05:19] Speaker 00:
that even if it's deemed to be for research purposes, compensation is owed to the plaintiff for that use.

[00:05:29] Speaker 00:
So the statute doesn't allow for any exceptions.

[00:05:32] Speaker 00:
There's no exceptions for research for drug companies.

[00:05:35] Speaker 00:
There's no exceptions for research for the military.

[00:05:38] Speaker 00:
In this particular case, when we're dealing with research for the public good, there's no exceptions as well.

[00:05:45] Speaker 00:
And that's made clear by the Roche and Pitcairn cases, as I mentioned.

[00:05:50] Speaker 00:
The district court also erred on the damages issue on another matter.

[00:05:55] Speaker 00:
It abused its discretion in refusing to allow plaintiffs to obtain information on certain projects that were being handled by the principal researcher, Dr. Lucka, whose process was deemed to infringe the patent.

[00:06:10] Speaker 00:
And it refused to allow plaintiffs access to even take any discovery in that information because it threw the burden on us

[00:06:18] Speaker 00:
to demonstrate that these projects were relevant.

[00:06:21] Speaker 00:
But the government objected to these producing information because it deemed that these projects were classified.

[00:06:28] Speaker 00:
Well, how are we going to be able to get any information to determine whether or not they are or not relevant or what it is based on information if it's classified, or at least they're objecting based on classified?

[00:06:41] Speaker 00:
So we have some concerns with that.

[00:06:42] Speaker 00:
But the evidence that we did gather demonstrated that the information is likely relevant.

[00:06:48] Speaker 00:
First of all, we had the main inventor, Dr. Ludka himself, telling Ms.

[00:06:53] Speaker 00:
Walker that he had used his process, the infringing process, in connection with classified projects.

[00:07:02] Speaker 00:
We also have him submitting reports and progress reports to his management detailing what he expects to do for the coming year.

[00:07:11] Speaker 00:
And in 2011 alone,

[00:07:13] Speaker 00:
He identifies that his process, the one that infringes and the one that we're trying to take discovery on, it had application in various government projects to the tune of over $100 million in 2011 alone.

[00:07:28] Speaker 00:
And then we also have a trial.

[00:07:30] Speaker 00:
Even though the judge refused to allow us to take testimony to follow up and explore on certain information,

[00:07:36] Speaker 00:
And notably, he didn't refuse to allow us to get into this information because it was classified.

[00:07:40] Speaker 00:
He said it was only because we didn't demonstrate that it was relevant.

[00:07:44] Speaker 00:
The other inventor, part of Dr. Lugka's team, or the other researcher, the part of Dr. Lugka's team, when asked at trial whether or not Dr. Lugka was still practicing the TMP process, his response was, I'm not sure I can answer that because the answer is classified.

[00:08:02] Speaker 00:
Clearly, if he's not using the infringing process in connection with

[00:08:06] Speaker 00:
classified information, he would be able to answer that question.

[00:08:10] Speaker 00:
So the information and evidence strongly suggests that the government is indeed using the infringing process in connection with classified projects.

[00:08:20] Speaker 00:
And we offered to take that information, if it's truly classified, within a classified or secret closed hearing.

[00:08:28] Speaker 00:
But again, we were denied that opportunity to take discovery.

[00:08:31] Speaker 00:
And we believe that the court abused its discretion on that.

[00:08:34] Speaker 00:
as well as committing legal error in extending the experimental use defense on damages.

[00:08:40] Speaker 00:
Thank you.

[00:08:41] Speaker 00:
I'll reserve the rest of my time for rebuttal.

[00:08:43] Speaker 04:
And we'll just cross the field here.

[00:08:45] Speaker 04:
Yes.

[00:08:46] Speaker 04:
OK.

[00:08:48] Speaker 04:
Mr. Hoskin.

[00:08:50] Speaker 01:
Thank you, Your Honor.

[00:08:51] Speaker 01:
May it please the court.

[00:08:54] Speaker 01:
Just to start, I would like to, I guess, answer quickly your question regarding the guidelines.

[00:09:00] Speaker 01:
And we do believe that 1498 is different.

[00:09:04] Speaker 01:
than 271.

[00:09:06] Speaker 01:
So yes, the court has a very limited jurisdiction.

[00:09:10] Speaker 01:
The Court of Federal Claims first has indicated it can only adjudicate claims of abuse by the government.

[00:09:17] Speaker 01:
But there is also, because it is a takings type of or eminent domain type of statute, there is this limitation that it only addresses past damages as well.

[00:09:31] Speaker 04:
That strikes me as very odd because under the government setting, and a few months ago I had this in the front of my brain and it's no longer there, but I thought in the government you treat it as if there's some license that the government has.

[00:09:46] Speaker 04:
Well, if you're talking about the value of that license and there's the potential for future as well as current commercial sales, wouldn't there be a reasonable royalty involved?

[00:09:57] Speaker 04:
And wouldn't that, by definition, include future and not just current or past sales?

[00:10:03] Speaker 04:
So that's what I'm confused about.

[00:10:06] Speaker 01:
I think, in a sense, Your Honor, in a different situation, a running royalty that would be judged in a case where the government is already buying a device may very well be the best evidence you would ever find of what

[00:10:26] Speaker 01:
future royalties should be.

[00:10:27] Speaker 01:
And certainly, I am certain that there are cases where the government has then gone ahead and paid damages for future sales, but not part of the judgment, but as a separate action when they go ahead and buy stuff.

[00:10:43] Speaker 03:
So suppose that the government was currently selling these products.

[00:10:47] Speaker 03:
Currently selling them.

[00:10:48] Speaker 03:
This Oak Ridge Labs and the government, they were selling commercial products.

[00:10:52] Speaker 03:
And you were going to continue selling them tomorrow and the next day and the day after that.

[00:10:56] Speaker 03:
Are you telling me that under the jurisdictional statute, this patentee could only recruit the reasonable royalty for the sales you made up until the point of the judgment?

[00:11:06] Speaker 03:
And even if you were agreeing, you were planning on continuing to sell these products, the Court of Federal Plans would lack jurisdiction to say, and you must pay a reasonable royalty of the same percentage going into the future for the future sales?

[00:11:23] Speaker 01:
as I indicated, yes.

[00:11:25] Speaker 01:
That is our understanding of the law.

[00:11:27] Speaker 01:
Now, as I also indicated.

[00:11:29] Speaker 04:
Does that law include anything beyond?

[00:11:30] Speaker 04:
The Court of Federal Claims cited one 1981 Court of Plains case.

[00:11:34] Speaker 04:
Do you have any other cases?

[00:11:37] Speaker 01:
No, Your Honor, but I would point the court maybe to, for instance, Lisona, which is kind of the case that everybody considers as the defining statute or defining case law in 1498.

[00:11:53] Speaker 01:
And, you know, it is kind of limited.

[00:11:56] Speaker 01:
But now, you know, obviously, as I indicated also, and I think Judge Moore, that this may relieve some anxiety on your part, is that, yes, we do look at the judgment.

[00:12:09] Speaker 01:
And if the court comes down with a judgment and says that the dollar value is, you know, a running royalty of X dollars per item,

[00:12:22] Speaker 01:
Certainly the government doesn't have a great deal of interest then in future events, whether sales are not really included in 1498, but certainly any use by the government.

[00:12:34] Speaker 01:
If we go ahead and buy and use another device, we don't have a great deal of interest then in necessarily go and re-litigating that issue for the X plus one item after the judgment.

[00:12:47] Speaker 04:
Okay, so why is your friend wrong that you're not using it currently?

[00:12:51] Speaker 04:
Excuse me?

[00:12:52] Speaker 04:
That getting, using this to obtain significant investment in terms of grants, etc.

[00:13:01] Speaker 04:
Why is that not a compatible use?

[00:13:03] Speaker 01:
Well, it was compatible, it is compatible, and the judge did find compensation in the amount of $200,000.

[00:13:11] Speaker 04:
But that doesn't, that doesn't account for the amount of money that's being obtained in terms of grants and so forth based on the use.

[00:13:20] Speaker 04:
And as the court... Am I right about that?

[00:13:23] Speaker 01:
Well, it has no relationship on a numeric value to the compensation.

[00:13:33] Speaker 01:
And I think the answer to that is, as the court found in Riles, that the sound economic proof argument was what the court relied on, and certainly what the government also

[00:13:50] Speaker 01:
offered and that is that plaintiffs have never shown that anybody ever pays a royalty on research dollars and there's a good reason for that because if you are doing research on a new device then there's no dispute that in this case there is no use of the

[00:14:18] Speaker 01:
Oak Ridge process currently commercially.

[00:14:22] Speaker 01:
So they're doing pure research.

[00:14:24] Speaker 01:
If you are taking research dollars and paying a royalty, that just takes away from the research.

[00:14:29] Speaker 03:
Wait a minute.

[00:14:29] Speaker 03:
Time out.

[00:14:30] Speaker 03:
Are you suggesting to me, suppose this wasn't the government?

[00:14:32] Speaker 03:
Because these patent law principles are cross cases.

[00:14:36] Speaker 03:
There's nothing unique to the government about this principle.

[00:14:40] Speaker 03:
So suppose you have one pharma case, one pharma company that invents a big technology.

[00:14:47] Speaker 03:
Then you have a second pharma company that uses that big technology and starts experimenting with how maybe it can commercialize it.

[00:14:58] Speaker 03:
It hasn't actually sold anything or even realized any commercial dollars by virtue of its use yet.

[00:15:05] Speaker 03:
See here, you actually got a grant that's tied to the use, but in my example, there isn't even

[00:15:12] Speaker 03:
revenue that has come indirectly to the second pharma company by virtue of its use.

[00:15:17] Speaker 03:
It's using it to come up with some potential commercial product.

[00:15:22] Speaker 03:
Are you telling me that use is not compensable under patent law?

[00:15:25] Speaker 01:
I am saying that those two, your two examples, the pharma company that funds its own research and our situation where there is grant research, are essentially identical.

[00:15:37] Speaker 01:
The reason that companies

[00:15:40] Speaker 01:
and patent owners don't generally get anything more than some kind of a minimal or flat rate royalty during the research period is because that research dollar, if it's taxed for royalties, then just depletes your research money and that is counterproductive for most patent owners.

[00:16:04] Speaker 03:
I think you might be onto something here because

[00:16:07] Speaker 03:
To me, I will tell you that I think there ought to be compensation to a patentee for research use of their technology.

[00:16:19] Speaker 03:
But maybe that compensation isn't tied to a research grant.

[00:16:23] Speaker 03:
Maybe the way this case was argued to the judge below left him with what might be a correct decision in light of the way it was argued.

[00:16:33] Speaker 03:
I think my problem might be that the comparables that were used, the three licenses, which had up to the $200,000 upfront, all of those were, in fact, commercialization licenses.

[00:16:45] Speaker 03:
And so that $200,000 was the starting point, but there was absolutely an expectation of commercial sales that would result in additional monetary compensation for the patent.

[00:16:56] Speaker 01:
And we submit that our situation here is no different.

[00:17:01] Speaker 01:
You know, when it goes to commercialization, which most likely is not going to be by the government, but when it goes to commercialization, if the patent is valid and if the process does in fact infringe the patent, then there's the expectation that whoever is using that process is going to be paying a royalty.

[00:17:28] Speaker 03:
But do you think that the research company that is using it to develop the commercial product it will later make money off of gets to use it pretty much free and clear?

[00:17:41] Speaker 01:
Well, I think in this case that the problem is that what the court actually found is that the only damages that were proven was the $200,000.

[00:17:58] Speaker 01:
I think on different facts, on different evidence, the court may have reached a different result.

[00:18:04] Speaker 01:
And it may very well have come up with some different dollar amount.

[00:18:10] Speaker 01:
But at least on this case, and I want to make clear that I don't think that either the court nor the government took the position that that's the only thing that the court could award.

[00:18:24] Speaker 01:
The court ended up at the $200,000

[00:18:28] Speaker 01:
about, based solely on finding that the remainder of plaintiff's damages were unproven.

[00:18:44] Speaker 01:
Unless there's further questions, I'll move to the government's cross appeal.

[00:18:48] Speaker 01:
And we have a number of issues.

[00:18:52] Speaker 02:
Excuse me.

[00:18:53] Speaker 02:
Can I ask you not to divert you from where you were going there?

[00:18:57] Speaker 02:
One issue, the claim construction issue.

[00:19:01] Speaker 02:
Yes.

[00:19:02] Speaker 02:
With respect to the claim term Larson Miller relationship.

[00:19:06] Speaker 02:
Correct.

[00:19:08] Speaker 02:
And correct me if I'm wrong, but it seems to me that your whole focus on that point is with respect to what you say happened during the prosecution history.

[00:19:18] Speaker 02:
That's correct.

[00:19:19] Speaker 02:
You don't focus at all, either as far as I could tell, either in your opening brief

[00:19:26] Speaker 02:
or your reply brief on the point on specific parts of the specification.

[00:19:33] Speaker 02:
Why was that?

[00:19:34] Speaker 02:
Because normally, that's where one looks first.

[00:19:37] Speaker 02:
And I was struck by that in your argument.

[00:19:39] Speaker 01:
The specification actually, and we readily admit that the specification actually uses the term Larson Miller very broadly.

[00:19:50] Speaker 01:
And in fact, I think there's one portion of it.

[00:19:52] Speaker 01:
Cuts against you.

[00:19:53] Speaker 01:
It does.

[00:19:56] Speaker 01:
But what it comes down to is that if you, because of the amendment that was done in prosecution, if Larson Miller is read as broadly as it is in the specification, then particularly claim one, element J, becomes circular.

[00:20:19] Speaker 01:
It just says that a first order rate relationship is a first order rate relationship.

[00:20:25] Speaker 02:
Let me ask you this.

[00:20:28] Speaker 02:
Assuming for the moment, I realize you would disagree with this proposition, but assuming for the moment one were to not accept your reading of the prosecution history or were not to give it the weight that you give it, do you lose then on the Larsen Miller relationship claim construction issue?

[00:20:51] Speaker 01:
That's a tough one, Your Honor.

[00:20:53] Speaker 02:
Sorry to give it to you, but it's sort of posed by the way you presented the case.

[00:20:59] Speaker 02:
I'm not criticizing it, but it necessarily is there.

[00:21:03] Speaker 01:
Yes, I would have to say we would have to lose on that claim construction issue.

[00:21:07] Speaker 01:
As I indicate, I think that creates definite problems later on in terms of infringement.

[00:21:18] Speaker 01:
And certainly even more so in terms of the 101 argument.

[00:21:23] Speaker 01:
But as to the claim construction argument, we would certainly lose that one.

[00:21:26] Speaker 01:
OK.

[00:21:26] Speaker 02:
All right.

[00:21:28] Speaker 02:
Thank you.

[00:21:28] Speaker 02:
That's a candid answer.

[00:21:30] Speaker 01:
I appreciate it.

[00:21:30] Speaker 01:
Thank you.

[00:21:32] Speaker 01:
Turning then, actually, that was pretty much all of my first claim construction argument anyway.

[00:21:38] Speaker 01:
So turning then to the selected according to, which I think is actually the more important of the two, the problem that

[00:21:48] Speaker 01:
we run into with the selected according to argument is that the court's definition essentially reads that out of the claim.

[00:22:00] Speaker 01:
And you just have to, if you're going to select something according to a factor, you have to know what that factor is, and you have to know what the score keeping device is, as Dr. Wagner called it.

[00:22:17] Speaker 01:
And that's kind of where

[00:22:19] Speaker 01:
the court fell down here, is that the court just essentially eliminated the according to part of it.

[00:22:27] Speaker 01:
And all the court had to do is find that the results were consistent with a Larsen Miller relationship or a first order relationship.

[00:22:42] Speaker 01:
And the court found that if that were the case,

[00:22:49] Speaker 01:
there would be infringement.

[00:22:55] Speaker 01:
We just can't see that.

[00:22:57] Speaker 01:
If you're going to do something according to a criteria, you have to know what the criteria is and how to apply it.

[00:23:05] Speaker 01:
And the court just eliminated that.

[00:23:09] Speaker 02:
Turning then- How does that play then into the infringement analysis?

[00:23:14] Speaker 01:
Well, it broadened the infringement analysis to the point

[00:23:19] Speaker 01:
that the prior art, which was just using vibration and thermal energy, is infringing.

[00:23:30] Speaker 01:
Because if you don't have to know what the relationship is, and if you don't have to make your settings based on that relationship, then all you're doing is practicing the prior art.

[00:23:41] Speaker 01:
You're just doing it based on what you know works.

[00:23:45] Speaker 01:
And that brings us to

[00:23:48] Speaker 01:
The ALICE argument, the 101 argument.

[00:23:51] Speaker 04:
But your time is about to expire.

[00:23:54] Speaker 01:
I see.

[00:23:54] Speaker 04:
So I think we'll take that on the briefs.

[00:23:56] Speaker 04:
Okay, thank you.

[00:23:57] Speaker 04:
Thank you.

[00:24:05] Speaker 00:
I'll start with a couple points and questions that were raised on the issue of damages.

[00:24:09] Speaker 00:
Let's start with the proposition, as I said before, to reiterate, the government was never going to commercialize this invention.

[00:24:16] Speaker 00:
That's not what they do.

[00:24:17] Speaker 00:
Their objective is to obtain funding for research.

[00:24:22] Speaker 00:
And the funding in this particular case, as it is, was earmarked and specifically tied for their use.

[00:24:29] Speaker 00:
They couldn't practice the invention absent receiving funding.

[00:24:33] Speaker 00:
That's the testimony and the record.

[00:24:35] Speaker 00:
They had to go and get funding to be able to infringe.

[00:24:39] Speaker 00:
There's no better way to measure the value of what it is that they took than to measure the funding that they received.

[00:24:46] Speaker 00:
and also the costs that they spent, which was matched the funding for their use.

[00:24:51] Speaker 00:
But there was other evidence in the record.

[00:24:54] Speaker 00:
I also disagree with counsel.

[00:24:55] Speaker 00:
I think the response he said was that the government never argued that the $200,000 was the only way to compensate plaintiffs.

[00:25:05] Speaker 00:
That's not correct.

[00:25:06] Speaker 00:
That's all that they argued plaintiffs were entitled to, because the remainder of the use, in their view, was

[00:25:13] Speaker 00:
not for commercial purposes.

[00:25:15] Speaker 00:
It was for research.

[00:25:17] Speaker 00:
And that's what the court adopted.

[00:25:18] Speaker 00:
As the court began to go through its reasonable royalty analysis when it got to licenses, it stopped.

[00:25:25] Speaker 00:
It said none of this constitutes part of a royalty base because it's not commercial, which is against the statute and which is also against the law.

[00:25:36] Speaker 00:
We're entitled to no less, under the law,

[00:25:38] Speaker 00:
even though it's 1498 a reasonable royalty and there was evidence of record if you didn't want to apply it to funding there were yearly milestones of the testimony was of the million dollars a year that could have been awarded based on the use the air the judge basically made by limiting us to two hundred thousand dollars is it bears absolutely no relation to the extent of the use it's been going on seven eight years now when it's going to continue in the future

[00:26:05] Speaker 00:
Based on the testimony that was at trial, at least there was no evidence that they were going to stop using it.

[00:26:11] Speaker 00:
$200,000 is far from fair and reasonable entire compensation required under the statute.

[00:26:17] Speaker 02:
Mr. Oskarski, one question in response to the little colloquy I had with opposing counsel.

[00:26:24] Speaker 02:
Let's assume for the moment one accepts the court of federal claims construction of the Larson Miller relationship.

[00:26:34] Speaker 02:
But one would disagree with the according to point.

[00:26:38] Speaker 02:
You know which one I'm talking about.

[00:26:39] Speaker 02:
Where would that leave you in the case?

[00:26:43] Speaker 00:
Well, first of all, their proposed construction of the selective according to, in our view, is based on the incorrect and the infringement is based on the incorrect claim construction.

[00:26:52] Speaker 00:
But regardless of what the claim construction is, the judge demonstrated and cited evidence

[00:26:59] Speaker 00:
that they were using selecting settings according to the ways described in the specification.

[00:27:05] Speaker 00:
The specification, and as also testified to by Dr. Wagner, settings can be selected theoretically by an equation, also empirically by plots and graphs of data, as well as by experimentation.

[00:27:19] Speaker 00:
This is in the specification, testing various samples at different times and temperatures to achieve desired physical property changes.

[00:27:28] Speaker 00:
And what they were doing is they were selecting this combined setting in order to achieve an acceleration, which is the heart of the invention, as the judge found.

[00:27:38] Speaker 00:
I hate to use that term, but that was what the novel and unexpected result was by her process, was you're combining these two energies in a way, and you're selecting settings for this combined diffusion process that results in these physical property changes being so accelerated

[00:27:56] Speaker 00:
from days to hours, from hours to minutes, that resulted in such substantial energy savings that even the researcher from the government received all sorts of accolades through the Department of Energy when he highlighted what the potential benefits would be.

[00:28:12] Speaker 00:
So I think the claim construction is absolutely correct based on the intrinsic evidence and based on the testimony of Dr. Wagner, as well as Larson Miller themselves.

[00:28:23] Speaker 00:
This is exactly how, in their paper,

[00:28:25] Speaker 00:
the seminal paper which defines the Larson Miller relationship, how they selected their settings, which was through experimentation.

[00:28:33] Speaker 00:
And that's exactly what the claim says in terms of how the settings were selected in order to achieve this acceleration by selecting the settings for the two energies.

[00:28:53] Speaker 00:
Thank you.

[00:28:53] Speaker 00:
So I want to address

[00:28:55] Speaker 00:
Last point that the government made with respect to Larson Miller.

[00:29:02] Speaker 00:
The three ways that I just mentioned for selecting the settings are also the three ways disclosed expressly within the patent specification for determining what the relationship is.

[00:29:17] Speaker 00:
Again, you can do it by an equation, but it's not required.

[00:29:21] Speaker 00:
The principal way discussed is for experimentation.

[00:29:24] Speaker 00:
in a lab setting, determining what the relationship is through trial and error to determine what settings that you want to achieve the accelerated desired physical property change that the researcher is looking for.

[00:29:42] Speaker 00:
Unless the court has any questions, I think, to address the points we'd like to make.

[00:29:47] Speaker 04:
Thank you.

[00:29:47] Speaker 04:
And you've already exhausted your time, so we're not going to restore any.

[00:29:52] Speaker 04:
But we think we have the argument.

[00:29:53] Speaker 04:
Thank you, Your Honor.

[00:29:54] Speaker 04:
Thank you both.

[00:29:55] Speaker 04:
The case is submitted.