[00:00:00] Speaker 02:
1204, in rate 2E.

[00:00:52] Speaker 00:
The sole issue disputed here is how to interpret the claim limitation insulated electrode.

[00:01:04] Speaker 00:
The board of the PTO interpreted to mean any electrode as long as it has any part insulated.

[00:01:13] Speaker 00:
This interpretation is a reversible error for three reasons I'm going to talk about.

[00:01:20] Speaker 02:
Can I ask you just to

[00:01:22] Speaker 02:
confirm this with me, maybe the PTO will also.

[00:01:28] Speaker 02:
You have a position that says you think that the scope of this claim term is such that the electrode has to be insulated so as to prevent direct exposure to the reaction shaper.

[00:01:48] Speaker 02:
Yes.

[00:01:48] Speaker 02:
You could, could you not, and this is the question, still file a continuation application to make a claim with that language in it?

[00:01:58] Speaker 00:
No, because I think the opposing council also suggested that we might have to recite that the electrode is insulated from

[00:02:18] Speaker 00:
or fully insulated from the reaction chamber.

[00:02:21] Speaker 00:
But that, if you apply the same interpretation of the board, that's still anticipated, because that part, that the end was insulated by some insulated material, is also fully insulated from the reaction chamber.

[00:02:39] Speaker 00:
So that wouldn't work.

[00:02:40] Speaker 02:
Well, then why is the claim construction dispute that we have in front of us material to the outcome?

[00:02:48] Speaker 02:
Why should we be deciding a debate about whether you or whether your proposed claim construction is the right one if, I think you just said, the claims would still be rejected for anticipation on the same reference?

[00:03:05] Speaker 00:
I may not get your question correct, but let me just refresh this.

[00:03:10] Speaker 00:
If, according to the recitation that says the electoral dysphonic

[00:03:17] Speaker 00:
insulated from reaction chamber that would not work.

[00:03:20] Speaker 00:
But that is not our proposed interpretation.

[00:03:25] Speaker 00:
Our interpretation is just according to the specification.

[00:03:28] Speaker 00:
The electrode is covered by insulating material that provide fundamental current limiting action.

[00:03:37] Speaker 00:
That means the insulating material will prevent the electrode from conducting electricity.

[00:03:44] Speaker 02:
Okay, well, then I'll just ask my question about, could you not take that claim construction, the one you just articulated, file a continuation application, this proceeding I think is still pending as I understand the NPEP, and proceed to try to get that claim?

[00:04:08] Speaker 00:
Well, I think that at the moment, but in this case already,

[00:04:13] Speaker 00:
in the board twice, and each time they come with different reasons.

[00:04:17] Speaker 00:
But let me just say, not only that, I think this PTO's construction is totally incorrect, which is not only a part of this case and all the other cases.

[00:04:29] Speaker 00:
I would just want to bring to my first point, because- Let me just be clear.

[00:04:34] Speaker 00:
Was your answer to Judge Toronto yes, you could file a continuation on that?

[00:04:38] Speaker 00:
I could find continuation by modifying as I proposed.

[00:04:44] Speaker 00:
Now, the reasonableness is that essentially, the PTO does is to inject additional wording into the claim limitation so that it comprises there.

[00:04:55] Speaker 00:
So insulated electrode became an electrode comprises an insulated part.

[00:05:02] Speaker 00:
And I think that injection of additional meaning is not warranted.

[00:05:06] Speaker 00:
It's not supported at all.

[00:05:08] Speaker 00:
So the second reason, it is unreasonable interpretation.

[00:05:13] Speaker 00:
For reason, if using the same logic of the interpretation, one may construe a healthy person would include a person with lung cancer because his feet is healthy.

[00:05:26] Speaker 00:
Or one may also construe black cars would also include white cars because the tires are black.

[00:05:34] Speaker 00:
So this is not how adjectives used in the language.

[00:05:38] Speaker 00:
Essentially, they inject a comprising into this adjective, which makes no sense and makes the claim drafting hollow and essentially difficult.

[00:05:52] Speaker 00:
And the third point I want to make is this construction is totally disregard the specification.

[00:06:01] Speaker 00:
The specification specifically describes the electrode

[00:06:07] Speaker 00:
must be covered with insulated material that provides fundamental current limiting action.

[00:06:17] Speaker 00:
And the board not even considered the specification.

[00:06:25] Speaker 00:
So this is a three point.

[00:06:26] Speaker 00:
First, it's not supported.

[00:06:28] Speaker 00:
Why inject additional wording in there?

[00:06:31] Speaker 00:
Second, it is unreasonable by how the adjective was used

[00:06:38] Speaker 00:
the language, and the third is contradicting to the specification.

[00:06:43] Speaker 00:
If you don't have further questions, I will rebuttal and resolve my time for rebuttal.

[00:07:05] Speaker 01:
The board properly construed the term insulated electrodes to include electrodes that are partially covered by insulation.

[00:07:12] Speaker 01:
The plain language of the terms insulated electrodes does not specify how much insulation an electrode has or what the electrode is insulated against.

[00:07:23] Speaker 01:
The specification here does not offer any specialized definition of the term and does not disclaim this plain meaning.

[00:07:30] Speaker 01:
Instead, it also broadly recites

[00:07:32] Speaker 01:
insulated electrodes and also includes embodiments where just one side of the electrode is insulated.

[00:07:40] Speaker 01:
For these reasons, the board properly found that the Lance reference anticipates the claim.

[00:07:48] Speaker 02:
You, can I just ask you the same question I asked?

[00:07:51] Speaker 02:
Yeah.

[00:07:52] Speaker 01:
I was about to address that there.

[00:07:54] Speaker 01:
Certainly this is a pending application and the applicant could amend.

[00:07:58] Speaker 02:
And it's pending it.

[00:07:59] Speaker 02:
Do I understand correctly until the day that our mandate were to issue if, if we were to affirm?

[00:08:06] Speaker 01:
I think that's correct for a continuation.

[00:08:08] Speaker 01:
And then an RCA could also be an option, even if the, even if this board

[00:08:15] Speaker 01:
Sorry, Your Honor, I apologize.

[00:08:18] Speaker 01:
Even if this court were to, even after the mandate, were to issue... Even after... Well, then a continuation is not... Even after he chose the appeal route rather than the request for... Then a continuation is no longer permitted.

[00:08:32] Speaker 01:
But, Your Honor, I'm fairly sure at that point an RCE is... Okay.

[00:08:35] Speaker 01:
And I could confirm if Your Honor would like me to get back to you on that point.

[00:08:39] Speaker 01:
But I think at that point

[00:08:40] Speaker 01:
they could still file an RC because this came up in another case in my recollection was that they could file an RC even.

[00:08:48] Speaker 01:
It's a little bit, we would have to not object to them filing an RC according to our internal rules, but I think they could still do it even after the mandate was issued.

[00:09:00] Speaker 01:
Oh, no, we would not object.

[00:09:02] Speaker 01:
We would not object.

[00:09:04] Speaker 01:
But I think that

[00:09:06] Speaker 01:
helps illustrate why, especially in this case where there is simply an application, why the broadest reasonable interpretation standard matters because the applicant can amend, could have amended and can still amend, and could amend before this court reaches

[00:09:25] Speaker 01:
a verdict and mandate issues even to the extent that it's a concern of whether or not amendment would be allowed after mandate issues in some form through an RCE or a new application or what have you.

[00:09:40] Speaker 01:
Some of the analogies, adjectives are typically relative.

[00:09:44] Speaker 01:
I mean salted bread is still salted if even the crust is salted.

[00:09:48] Speaker 01:
A black car, if a black car has a white stripe, well it might read on a

[00:09:53] Speaker 01:
either a claim to a white car or a black car.

[00:09:56] Speaker 01:
And beyond that, your honor, I think unless this court has any additional questions.

[00:10:03] Speaker 01:
Thank you.

[00:10:12] Speaker 00:
I just wanted to add about regarding the continuation of RCE.

[00:10:19] Speaker 00:
The reason is we need the court to

[00:10:22] Speaker 00:
to set a standard for the claim interpretation, and whether, as you said, the insulated electrode should be construed as an electrode comprises insulated part, which is essentially what the PTU does here.

[00:10:39] Speaker 00:
And it is also directed for further cases, whether we decided to advise client, whether to modify the claim,

[00:10:48] Speaker 00:
Or we said that this technical term is more accurate.

[00:10:54] Speaker 00:
And the second thing I would like to add is that we had the expert testimony.

[00:11:00] Speaker 00:
And he testified that if you have an electrode on it, it has one end insulated, which in no sense, no person with the basic knowledge there would have construed that as an insulated electrode.

[00:11:15] Speaker 00:
And that testimony is not refuted by anyone.

[00:11:18] Speaker 00:
So for that, I would ask this court to make a decision whether how to construe the similar things like that, insulated electrode, or next time a black car, or next time a healthy person, how are we going to deal with that, or whether we have to provide every limitation which is clear, no ambiguity to any person skilled in the arts.

[00:11:48] Speaker 00:
subject to continuously modify the definition as long as the examiner wants, and we have to do that.

[00:11:57] Speaker 00:
And I would respectfully ask the court to reverse the interpretation.

[00:12:06] Speaker 02:
Thank you.

[00:12:07] Speaker 02:
Thank you.

[00:12:07] Speaker 02:
We thank both sides and the case is submitted.