[00:00:42] Speaker 00: Okay, the next argued case is number 17, 1881, Toshiba Samsung Storage Against LG Electronics, Incorporated. [00:00:52] Speaker 00: Mr. Rowe, when you're ready. [00:00:54] Speaker 03: Thank you. [00:01:05] Speaker 03: May it please the court, may it please the court, good morning. [00:01:11] Speaker 03: This case is an IPR appeal from a PTAB decision. [00:01:17] Speaker 03: I'm Joe Roa. [00:01:17] Speaker 03: I'm representing Toshiba Samsung, the appellant in this appeal. [00:01:26] Speaker 03: This appeal in this case relates to claim construction. [00:01:30] Speaker 03: We have one term that was disputed below. [00:01:33] Speaker 03: It was initially agreed upon below between the parties and the PTAB in its final written decision [00:01:41] Speaker 03: came up with a new construction that neither party had even proposed. [00:01:47] Speaker 02: In the blue brief at 29, you argued that two beams are always diffracted in a particular embodiment because the patent says the holographic ring 353 is designed to hardly diffract the 650 nanometer wavelength light. [00:02:10] Speaker 02: and hardly diffract is still some diffraction, even if we accept that argument. [00:02:18] Speaker 02: The specification also includes an example where only one beam is diffracted. [00:02:24] Speaker 02: For example, figure six in its description. [00:02:28] Speaker 02: And your expert conceded that the specifications include some examples where only one beam is not diffracted. [00:02:37] Speaker 02: Given that information, [00:02:39] Speaker 02: Why isn't the broadest reasonable interpretation of the disputed term, one that includes situations where only one beam is diffracted, even if the majority of the time two will be diffracted? [00:02:53] Speaker 03: The specification includes multiple embodiments. [00:02:57] Speaker 03: In some embodiments, including what I believe is the preferred embodiment at the top of column six, both beams are diffracted. [00:03:06] Speaker 03: So there's no dispute that [00:03:08] Speaker 03: Top of column 6, at least a preferred embodiment, both beams are diffracted. [00:03:15] Speaker 03: At the bottom of column 6, there is a description of an embodiment where only one beam is diffracted. [00:03:22] Speaker 02: But remember, I'm asking you a BRI question. [00:03:25] Speaker 03: Now, if we look at figure 6 in general, figure 6 has a lot of data points on there. [00:03:29] Speaker 03: The vast majority of data points in figure 6 illustrate both beams being diffracted. [00:03:35] Speaker 03: It's only when one is at the very top that only one beam is diffracted. [00:03:40] Speaker 03: So initially, most embodiments in the spec diffract both beams. [00:03:46] Speaker 03: With respect to BRI, there are many different claims in this patent. [00:03:53] Speaker 03: Some claims expressly say you selectively diffract one beam. [00:04:00] Speaker 03: Other claims, like claim seven, which is the claim at issue here, say [00:04:05] Speaker 03: You diffract, you diffract both beams. [00:04:10] Speaker 03: Other claims, like claims 38 and 42, say you diffract at least one of the beams. [00:04:18] Speaker 03: So we have one claim set, claim 45 for instance, which says you diffract only one beam. [00:04:25] Speaker 03: You have another claim set, which is in the middle, you diffract at least one of the two beams, claims 38 and 42. [00:04:35] Speaker 03: And then we have claim seven, which says you defract both B's. [00:04:39] Speaker 03: So there are different claims in the patent that are covering the different embodiments in the specification. [00:04:46] Speaker 00: Are you telling us to try and get to the resolution that there's more than one invention in this specification, even though patents are supposed to each one to have a separate invention? [00:05:00] Speaker 00: And that in order to, as this has evolved, [00:05:05] Speaker 00: In order to avoid the prior art, you no longer intend to claim when only one beam is diffracted? [00:05:15] Speaker 00: And therefore, the patent, the claims, should be construed to eliminate the embodiment where only one beam is diffracted? [00:05:27] Speaker 03: The claims that relate to only one beam being diffracted were not asserted in the litigation. [00:05:36] Speaker 03: In the accused product, both beams are diffracted. [00:05:40] Speaker 00: But we do have a representation of equivalence of everything that's in the spec. [00:05:47] Speaker 00: And as I understand the entire genesis of these procedures in the office, there is an opportunity if a debate such as this arises, where you may lose everything because of prior art, where only one beam is diffracted. [00:06:06] Speaker 00: that you can disclaim or amend or limit your claims to what I gather is your argument for patentability, that the prior art does not show diffracting both beams. [00:06:24] Speaker 00: Isn't that your argument? [00:06:25] Speaker 03: Our argument is that the prior art does not show diffracting both beams. [00:06:30] Speaker 03: That's correct. [00:06:30] Speaker 00: So why not just insert such a limitation [00:06:35] Speaker 00: into the claims and avoid losing everything on this argument. [00:06:42] Speaker 03: Because claim seven, in our view, already says that. [00:06:46] Speaker 03: Claim seven says you selectively defract the first and second beams. [00:06:51] Speaker 00: But you also have a specification which is broader. [00:06:55] Speaker 00: And the claims are read in light of the specification, unless there's some sort of limitation or disclaimer. [00:07:04] Speaker 00: a federal case out of everyone who reads your patent. [00:07:08] Speaker 03: Well, the word and in claim seven expressly states that you defract the first beam and the second beam. [00:07:16] Speaker 03: That word and is in the claim. [00:07:18] Speaker 00: Is that the only claim left in this case? [00:07:21] Speaker 03: It's the only independent claim left in this case. [00:07:24] Speaker 00: The only claim left. [00:07:25] Speaker 00: Independent or dependent is irrelevant. [00:07:28] Speaker 00: Is it the only claim left that is explicitly limited [00:07:34] Speaker 00: to both beams? [00:07:36] Speaker 03: I believe so, Your Honor. [00:07:38] Speaker 00: Well, then couldn't you have avoided this argument by making explicit that the other claims are not being pursued? [00:07:48] Speaker 03: I believe, well, in the litigation that was brought, the other claims were not pursued and they were not asserted. [00:07:58] Speaker 03: Therefore, whenever LG filed the IPR, they only challenged [00:08:03] Speaker 03: the claims that were asserted. [00:08:05] Speaker 03: So the claims that relate to only one being being diffracted were never asserted in the litigation. [00:08:10] Speaker 03: They've never been an issue in this IPR. [00:08:14] Speaker 00: Well, then what led the board to rely on the prior art that diffracts only one claim to recite point two, the specification that is of the breadth, whether it's still [00:08:32] Speaker 00: brought us reasonable interpretation of whether the new rules apply. [00:08:36] Speaker 00: I'm not sure about. [00:08:38] Speaker 00: But whatever it is, you're asking us to construe the claims in a manner that, it seems to me, could have been avoided by some amendments. [00:08:54] Speaker 00: If the idea is we want to keep everything because we want to keep everything because who knows what will happen in the future. [00:09:01] Speaker 00: They are facing the consequences of that. [00:09:03] Speaker 03: Well, the patent, I believe, is now expired as a note. [00:09:07] Speaker 03: But Claim 7 already says expressly that you defract both beams. [00:09:12] Speaker 03: It says, defract the first and second beams. [00:09:15] Speaker 02: Where in the blue brief did you challenge the PTAB's explanation of the extrinsic evidence? [00:09:23] Speaker 03: The only extrinsic evidence that is in this case [00:09:29] Speaker 03: on claim construction is LG's expert admitting that our construction is correct. [00:09:35] Speaker 03: It's the only term he ever construed in his declaration. [00:09:40] Speaker 03: He agreed with us. [00:09:42] Speaker 03: He said, our construction is consistent with the specifications for an ordinary meeting. [00:09:49] Speaker 02: You're telling me that whatever their expert said is good with you. [00:09:54] Speaker 03: Their expert opined saying our construction is correct. [00:10:00] Speaker 02: You're just agreeing that whatever they said is good with you, because I'm going to hear it from the other side. [00:10:05] Speaker 02: And I have a feeling they're not going to agree with you. [00:10:06] Speaker 03: Their expert in the expert's declaration has one term he construed. [00:10:11] Speaker 03: In the claim construction section, what he said in the claim construction section is correct. [00:10:16] Speaker 03: He agreed with us. [00:10:18] Speaker 03: He said our construction was right. [00:10:20] Speaker 02: Well, I'll take your answer as yes. [00:10:23] Speaker 02: In the claim construction section, yes. [00:10:25] Speaker 03: I don't agree with everything else he said. [00:10:29] Speaker 02: Where in the blue brief did you challenge the extrinsic evidence upon which the PTAB relied? [00:10:39] Speaker 03: We challenged the extrinsic. [00:10:42] Speaker 03: We never said the extrinsic evidence is wrong or incorrect, but we cited to the patent. [00:10:47] Speaker 03: We cited to the claim language, which states, defract the first and second beam. [00:10:52] Speaker 03: And means and. [00:10:54] Speaker 03: The PTAB's construction changed and to mean or. [00:10:58] Speaker 03: We have federal circuit case law, which says when the claim says A and B, the ordinary meaning of and means that A and B, both of them. [00:11:07] Speaker 00: Because your second, your specification says the second being the diffraction can be zero. [00:11:14] Speaker 03: No, because the ordinary meaning of and is conjunctive. [00:11:20] Speaker 03: A and B, it's both of them. [00:11:22] Speaker 03: And our specification has embodiments, including the preferred embodiment, where both beams [00:11:28] Speaker 03: are diffracted because the specification has a preferred embodiment where both beams are diffracted and must be construed the way it normally is construed, conjunctively. [00:11:42] Speaker 03: You cannot change and to or, which is what the PTAB did, unless the specification only has one embodiment and that embodiment says you only diffract one beam. [00:11:58] Speaker 03: AND doesn't get changed to OR unless the specification mandates it. [00:12:02] Speaker 03: Here, the specification has embodiments where both beams are diffracted. [00:12:08] Speaker 03: You can't change AND to OR when the specification supports our construction. [00:12:17] Speaker 03: The same phrase at issue, this word selectively. [00:12:20] Speaker 03: LG is arguing that selectively somehow changes AND into OR. [00:12:25] Speaker 03: Well, if you look at other claims like claims 38 and 42, claims 38 and 42 expressly state selectively diffract at least one of the first and second beams. [00:12:41] Speaker 03: So those two claims are saying you can diffract either one of the beams or both beams, but the board selectively has to cover diffracting both beams in those claims. [00:12:53] Speaker 03: You cannot say that [00:12:54] Speaker 03: For Claim 7, selectively means you have to pick only one or the other because that would mean that that same word selectively would make no sense in Claims 38 and 42. [00:13:07] Speaker 03: The other claims make this very clear here. [00:13:10] Speaker 03: We have some claims that call for one beam being diffracted. [00:13:15] Speaker 03: Other claims, like Claim 7 here, both beams are diffracted. [00:13:19] Speaker 03: And other claims, at least one of the beams is diffracted. [00:13:23] Speaker 03: The PTAB was wrong to change and into a disjunctive or. [00:13:30] Speaker 00: Let's hear from the other side. [00:13:33] Speaker 00: Good morning Judge Newman and may it please the court. [00:13:52] Speaker 01: I'd like to use a [00:13:54] Speaker 01: an analogy to illustrate why the PTAB's construction is correct. [00:13:59] Speaker 01: Assuming you work at a toy factory, and you're instructed by your supervisor to selectively apply red and yellow paint as a function of the fruit to be painted. [00:14:14] Speaker 01: You paint strawberries, which are red. [00:14:16] Speaker 01: You paint bananas, which are yellow. [00:14:18] Speaker 01: And you paint oranges. [00:14:21] Speaker 01: Sometimes you apply just the red paint, [00:14:23] Speaker 01: that's to the strawberries. [00:14:25] Speaker 01: Sometimes you apply just the yellow paint, that's to the bananas. [00:14:29] Speaker 01: And sometimes you use both. [00:14:31] Speaker 01: You mix the red and the yellow to get the orange for the oranges. [00:14:35] Speaker 01: This analogy precisely tracks the language in this claim. [00:14:39] Speaker 01: What Mr. Rowan does when he focuses on the word and... Isn't that just apples and oranges? [00:14:47] Speaker 02: Yes, Your Honor. [00:14:48] Speaker 02: I'm channeling Judge Delore from up here. [00:14:50] Speaker 01: I was trying, your honor, to find a way to fit in a red herring to this. [00:14:58] Speaker 01: I think what Mr. Rowe's fundamental error and what he doesn't appreciate about the PTAB's construction is the word selectively, which modifies add. [00:15:09] Speaker 01: And what that means is that in some cases, one is 100% diffracted and the other is not diffracted. [00:15:17] Speaker 01: In some cases, [00:15:18] Speaker 01: It's the other is not diffracted, and one is 100% diffracted. [00:15:22] Speaker 01: In some cases, it's both. [00:15:24] Speaker 02: And as Mr. Rowe concedes, and as his expert conceded below, the claim seven recites selectively to refract the first and second light beams rather than at least one of the first and second light beams. [00:15:40] Speaker 02: That's correct, Your Honor. [00:15:42] Speaker 02: Given that different usages usually imply different meanings, why doesn't claim 42 guide your construction? [00:15:48] Speaker 01: Because the other claims that Mr. Roe was talking about have different claim elements. [00:15:54] Speaker 01: It's not like you have a one-to-one correspondence here where the only difference is the word at least. [00:16:00] Speaker 01: There are other differences as well. [00:16:02] Speaker 01: And under this court's case law, that means you look very carefully at arguments saying this claim means X. Now, in this particular case, there's no disagreement that [00:16:16] Speaker 01: There are embodiments where just one beam is diffracted and embodiments where both beams are diffracted. [00:16:24] Speaker 01: We do argue over what is the preferred embodiment. [00:16:28] Speaker 01: And all of this is at page A37 of the record. [00:16:33] Speaker 01: But I think it's not disputed that the only embodiment that is specifically described in the specification is one where the diffractive region has a groove depth of 3.8 microns. [00:16:46] Speaker 01: That's the only embodiment where you have a specific description of the diffractive element. [00:16:53] Speaker 00: But is it correct that the only claims at issue in this IPR are those in which only one beam is diffracted? [00:17:09] Speaker 00: To narrow the issues. [00:17:15] Speaker 00: we have a breadth of scope of claiming. [00:17:19] Speaker 00: If that breadth isn't an issue in this IPR, then that would help to narrow the board. [00:17:27] Speaker 01: Right. [00:17:28] Speaker 01: Our view, Your Honor, and this is from the board's claim construction at pages 10 through 11, is that their construction included an interpretation in which only one beam is diffracted. [00:17:40] Speaker 01: But it's not limited to that. [00:17:42] Speaker 02: That was the BRI question I started out with. [00:17:45] Speaker 01: Under the BRI standard, when you have in the specification embodiments where one is diffracted and embodiments where both are diffracted, where the construction makes sense, you have the word selectively, under BRI we think it's fairly clear. [00:18:02] Speaker 00: Here... Let's assume for the sake of argument that the new rules in the office are in effect and so we're looking for the correct construction rather than something that might be incorrect. [00:18:14] Speaker 01: Same result under Phillips, Your Honor. [00:18:16] Speaker 01: We don't think the new rules apply. [00:18:18] Speaker 01: Obviously, we don't think they're going to apply retroactively, nor should they. [00:18:22] Speaker 01: But if they were, you would get the same result under Phillips. [00:18:25] Speaker 01: Indeed, I think our argument is even stronger, and here's why. [00:18:28] Speaker 01: Phillips focuses on, among other things, the purpose of the invention. [00:18:33] Speaker 01: Now, I'm not a physicist, but as I understand this invention, the purpose was when you have an optical disk reader. [00:18:39] Speaker 01: where you want to have multiple media like a CD, a recording CD, and a DVD, you want to have only one tray. [00:18:46] Speaker 01: But there are going to be two sources of light beams. [00:18:50] Speaker 01: There's going to be one light beam for the CD and one light beam for the DVD. [00:18:54] Speaker 01: And there are going to be different wavelengths because you need different wavelengths to read those different optical media. [00:19:00] Speaker 01: For DVDs, which are thinner, you use the wavelength either 635 or 650 [00:19:09] Speaker 01: nanometers. [00:19:15] Speaker 01: What the patent says, and this is what the prior art says, is for the DVD, you would just have a lens that let everything through. [00:19:25] Speaker 01: It would work perfectly on the DVD, both in the inner region and in the outer regions where these diffractive regions were. [00:19:32] Speaker 01: For the CD, because it's thicker and because of the different wavelength, you need to focus a different [00:19:39] Speaker 01: And the way you would focus it differently is, in the prior art, there were these thin films that would just block the wavelength in the diffractive regions of the outer part of the lens. [00:19:50] Speaker 01: In this invention, instead of having the thin film for which there were manufacturing issues, you would have a diffractive region. [00:19:57] Speaker 01: And that diffractive region would diffract the light in the diffractive regions that was going to the CD. [00:20:05] Speaker 01: So the problem, the goal of the invention was you want to not diffract one, that is the beam that's going to the DVD, and you want to diffract the other, the beam that's going to the CD. [00:20:18] Speaker 01: And that's exactly what's described in the specification as the problem. [00:20:22] Speaker 01: The problem was these thin films had manufacturing issues, and the solution to the problem. [00:20:28] Speaker 01: So under Phillips, it points directly to the construction that [00:20:34] Speaker 01: the PTAB came to. [00:20:35] Speaker 01: So I think under Phillips, we're even better off than under BRI, counterintuitive as that may sound. [00:20:42] Speaker 01: The PTAB's construction said that one could be at zero. [00:20:46] Speaker 01: That's correct. [00:20:47] Speaker 01: That's correct. [00:20:47] Speaker 01: And that's, that's what is in the most preferred embodiment of this invention, where the zero diffraction, now we have a dispute as to whether zero percent diffraction or zero with degree [00:21:01] Speaker 01: Zero with order diffraction. [00:21:03] Speaker 01: I don't think we need to get into those physics. [00:21:05] Speaker 01: But the zero diffraction is for the DVD beam going through and hitting the DVD. [00:21:12] Speaker 01: That was fine. [00:21:13] Speaker 01: Why would you have a lens where you have to diffract both of them if you can start off with a lens where one of them is perfect without a diffractive region? [00:21:21] Speaker 01: And that's what the patent says. [00:21:22] Speaker 01: So under Phillips, we come out exactly at the same place that the P-Tab came out under BRI. [00:21:30] Speaker 01: Unless the court has further questions, I have nothing further. [00:21:33] Speaker 02: Well, talk about the APA for a little bit. [00:21:37] Speaker 01: The APA, the admitted prior art, or the Administrative Procedures Act? [00:21:42] Speaker 02: I'm sorry. [00:21:42] Speaker 02: There's an APA, alleged APA violation. [00:21:45] Speaker 02: Ah, OK. [00:21:45] Speaker 02: It wasn't mentioned at all by your opposing counsel on it. [00:21:48] Speaker 01: Right. [00:21:49] Speaker 01: So I think they have two APA arguments. [00:21:52] Speaker 01: One is that somehow the agreed construction was ignored, and they were surprised. [00:21:58] Speaker 01: The agreed construction was not ignored. [00:22:00] Speaker 01: What happened is the PTEP said, we find no need for an express construction in their initiation decision. [00:22:08] Speaker 02: I'm asking you this question because I'm going to ask your opposing counsel anyway. [00:22:11] Speaker 01: And then the parties fought about it. [00:22:13] Speaker 01: And they fought about it like cats and dogs in the breeze below, which Your Honor has seen, and the declarations below, and an oral argument. [00:22:19] Speaker 01: In fact, that was the only issue with oral argument, really claimed construction of this term. [00:22:23] Speaker 01: Their second APA argument is that the [00:22:26] Speaker 01: a PTAB improperly, and they make this argument in footnote three of page 12 of their brief, I think, that the PTAB improperly ignored an argument that they made about the use of the word hardly, which your honor had cited. [00:22:37] Speaker 01: To be very precise about it, the PTAB was correct. [00:22:43] Speaker 01: In their briefing, they never used the word hardly, nor did they make any arguments based on that word. [00:22:50] Speaker 01: What they did do in their briefing was cite to that portion of the specification. [00:22:54] Speaker 01: I think it was a 17, [00:22:56] Speaker 01: line portion. [00:22:57] Speaker 01: But the PTAB was certainly free to conclude that since they didn't make the specific argument, what was it that they wanted the PTAB to pull out of that 17-line portion of the specification? [00:23:09] Speaker 01: But more fundamentally, is the PTAB very carefully looked at that column in the patent and did its substantive analysis. [00:23:18] Speaker 01: It didn't look at the word hardly, but it looked at everything else. [00:23:24] Speaker 01: including that specific example that they gave. [00:23:28] Speaker 01: I think it's perfectly appropriate, as this court has said, that a lawyer can't sort of hide the argument. [00:23:35] Speaker 01: And I'm not attributing any ill will or motive here. [00:23:38] Speaker 01: But you can't come up with an argument later that you haven't specifically flagged for the court. [00:23:43] Speaker 01: I don't know if that addresses the APA issue. [00:23:47] Speaker 02: That's fine. [00:23:48] Speaker 02: You're addressing something that hasn't been said yet. [00:23:52] Speaker 01: Thank you. [00:23:54] Speaker 01: The panel has no further questions. [00:23:55] Speaker 01: I'm prepared to rest on these remarks. [00:24:01] Speaker 00: Thank you. [00:24:02] Speaker 00: Okay. [00:24:02] Speaker 01: Thank you, Mr. Lieberman. [00:24:11] Speaker 03: Thank you. [00:24:13] Speaker 02: I want you to address the APA for a second. [00:24:17] Speaker 03: First, I assume. [00:24:19] Speaker 03: The APA [00:24:22] Speaker 03: The hardly aspect or the new construction without giving us a chance to ever take discovery, declaration, et cetera. [00:24:29] Speaker 03: I'll do the latter first. [00:24:31] Speaker 03: The construction that the board came up with in the final written decision was never proposed by us. [00:24:38] Speaker 03: It was never proposed by LG. [00:24:40] Speaker 03: It was never anywhere in the record until the final written decision. [00:24:44] Speaker 03: Our declaration, when we submitted our declaration in this proceeding, we didn't know about it. [00:24:49] Speaker 03: When we submitted our brief, we didn't know about it. [00:24:52] Speaker 03: When we took discovery, we didn't know about it. [00:24:55] Speaker 03: So our point is, you can't come up with a construction in the final written decision, which no side has ever argued. [00:25:03] Speaker 03: There's a due process violation there. [00:25:05] Speaker 03: There's an APA violation there. [00:25:06] Speaker 03: With respect to the Hartley argument, LG in its reply brief below starts off on page one of its reply brief, stating that our argument, they called our argument the Hartley argument. [00:25:19] Speaker 03: So there's no realistic, [00:25:23] Speaker 03: argument that we didn't argue this hardly term. [00:25:25] Speaker 03: We cited to that portion of the specification. [00:25:29] Speaker 03: LG called it the hardly argument below. [00:25:34] Speaker 03: With respect to BRI, BRI was never meant to ignore the canons of claim construction. [00:25:44] Speaker 03: We have a lot of claim construction rules here. [00:25:48] Speaker 03: Plain language. [00:25:49] Speaker 03: And means and. [00:25:51] Speaker 00: Well, they have a broad construction [00:25:53] Speaker 00: But that's supported by your specification, it seems to me, having one of the beams is diffracted at zero. [00:26:00] Speaker 00: And that's really what I'm trying to understand. [00:26:04] Speaker 00: It does look as if perhaps the construction was too broad. [00:26:10] Speaker 00: But you told me just a few minutes ago that this is something that you need and want is that breadth of construction. [00:26:20] Speaker 03: We do not want that breadth of construction. [00:26:23] Speaker 03: We want a construction that says both themes. [00:26:27] Speaker 00: But it's in the claims. [00:26:28] Speaker 00: Forget the broadest. [00:26:29] Speaker 00: It's in the claims. [00:26:30] Speaker 00: It's in the specification. [00:26:32] Speaker 03: Claim seven, the only independent claim at issue here. [00:26:36] Speaker 03: Claim seven says expressly, defract the first and second beam. [00:26:42] Speaker 03: The PTAB's construction has changed that to or. [00:26:45] Speaker 00: But you haven't disclaimed all the other claims. [00:26:49] Speaker 03: I think many of the other claims have been disclaimed. [00:26:52] Speaker 00: I said all. [00:26:54] Speaker 03: I don't think all. [00:26:55] Speaker 03: Claims that were not asserted in litigation were never at issue anywhere. [00:27:03] Speaker 00: It leaves the impression, more than an impression, that the other claims are supported by the specification. [00:27:14] Speaker 00: They may run into problems with the prior art, as having a single diffraction does. [00:27:22] Speaker 00: Looking to try and put the best face on it is that there may very well have been a contribution over the prior art, but that that's not enough. [00:27:36] Speaker 03: Claim seven expressly says you diffract the first and second beams. [00:27:41] Speaker 03: The prior art doesn't have that. [00:27:45] Speaker 03: The PTABS construction would deviate from the preferred embodiment of the spec where both [00:27:52] Speaker 03: Beams are diffracted. [00:27:55] Speaker 03: Claim construction canon. [00:27:58] Speaker 03: You construe claims as your honor said, selectively, according to the PTAB, all of a sudden has different meaning in claim seven than it does in claims 42 and 38. [00:28:06] Speaker 03: That's clearly wrong. [00:28:07] Speaker 03: You can't do that. [00:28:09] Speaker 03: The PTAB's construction renders superfluous the phrase and second in claim seven. [00:28:15] Speaker 03: You can't do that. [00:28:16] Speaker 03: You can't use BRI to say selectively means one thing here and a completely different thing in these other claims. [00:28:22] Speaker 00: I think we don't need BRI to come out in the same place, but all these claims are there. [00:28:29] Speaker 00: They'll one way or another be absorbed in some kind of estoppel. [00:28:34] Speaker 00: And I'm just looking for a focus that directly confronts the issue that seemed to concern the PTAP. [00:28:46] Speaker 00: And that was the breadth. [00:28:49] Speaker 03: The focus is that the claim says you defract the first and second beams. [00:28:53] Speaker 03: And does that mean or? [00:28:57] Speaker 03: Any more questions? [00:28:59] Speaker 00: Thank you, Your Honors. [00:29:01] Speaker 00: Thank you. [00:29:02] Speaker 00: Thank you both. [00:29:06] Speaker 03: Thank you, Your Honors.