[00:00:00] Speaker 02:
37.

[00:00:00] Speaker 02:
Councilor Quinn, you reserve three minutes of your time for rebuttal, correct?

[00:00:19] Speaker 02:
Yes, Your Honor, three minutes.

[00:00:20] Speaker 02:
Okay, you may proceed.

[00:00:21] Speaker 03:
Okay, thank you, Your Honor.

[00:00:23] Speaker 03:
There are two issues in this appeal.

[00:00:25] Speaker 03:
One, claim construction.

[00:00:27] Speaker 03:
The fan tip speed of the fan is less than 1,400.

[00:00:31] Speaker 03:
UTC submits that the board construed the term literally.

[00:00:36] Speaker 03:
And in doing so, it ignored the express disclosure and teachings of the specification that make it clear that that is not what it means, that it's a boundary condition.

[00:00:46] Speaker 03:
And we would cite the court to Inray Smith that the specification cannot be ignored in this manner.

[00:00:51] Speaker 03:
Secondly, with respect to obviousness, the board found

[00:00:56] Speaker 03:
This is claims 10 and 11.

[00:00:58] Speaker 03:
GE offered a number of motivations to combine these two references.

[00:01:03] Speaker 03:
They offered about a half a dozen of them.

[00:01:05] Speaker 03:
And the board made explicit findings that they were not persuasive.

[00:01:10] Speaker 03:
The board then nonetheless proceeded to say that this combination would be a design choice, which is something that this court has held in numerous prior cases is not sufficient.

[00:01:20] Speaker 03:
It's a conclusion, and it is not sufficient under KSR.

[00:01:25] Speaker 03:
With respect to the claim construction issue, the board construed this fan tip speed limitation.

[00:01:31] Speaker 03:
This fan tip speed of the fan is less than 1,400 feet per second in combination with the other recited limitations, such as those regarding gear ratio and bypass ratio.

[00:01:42] Speaker 03:
Well, those are precisely that.

[00:01:44] Speaker 03:
Other limitations of the claim.

[00:01:46] Speaker 03:
The issue we're here today on is the fan tip speed less than 1,400.

[00:01:51] Speaker 03:
The board gave it an interpretation that all the engine had to do was be capable of being somewhere in that range of 0 to 1,400 under any operating conditions.

[00:02:01] Speaker 03:
Now, under QOZO, the construction must be consistent with the specification.

[00:02:06] Speaker 03:
Under Inray Smith, it has to correspond with what and how the inventor described their invention in the specification.

[00:02:14] Speaker 03:
And this construction does not.

[00:02:16] Speaker 01:
Can you tell me, where do you think that the board

[00:02:19] Speaker 01:
adopted the idea that this claim limitation is satisfied as long as an engine at any point operates below the 1400.

[00:02:32] Speaker 03:
Your honor, I think it was GE had urged that construction and they relied on statements made in prosecution history of another application.

[00:02:42] Speaker 01:
Where did the board adopt it?

[00:02:45] Speaker 01:
I guess here's my recollection.

[00:02:47] Speaker 01:
My recollection is part of what is odd, unusual about the board decision is that it never actually adopts a construction at all.

[00:02:58] Speaker 01:
All it does is reject your position on which, as far as I can tell, you completely hinge your there is no anticipation case that whatever this means, it must be a hard limit.

[00:03:15] Speaker 01:
The engine may not go over that.

[00:03:17] Speaker 01:
But I didn't see the board actually saying, here's what this means.

[00:03:23] Speaker 01:
A normal operating condition, any time, whatever.

[00:03:27] Speaker 03:
Well, for one, at page 13 of the joint appendix, which is the board's decision, the paragraph above the heading capital B, we do not adopt patent owner's proposed interpretation for purposes of this decision.

[00:03:41] Speaker 03:
We interpret the remaining challenge dependent claims.

[00:03:44] Speaker 01:
You're right, but I guess my problem here is that what follows is not a claim construction.

[00:03:50] Speaker 03:
Well, Your Honor, we would agree.

[00:03:52] Speaker 01:
We interpret the remaining challenge dependent claims, which depend from claim one, to require a gas turbine engine with a, and now it just repeats the claim, fan blade tip speed less than 1400 in combination with the other elements.

[00:04:06] Speaker 01:
Well, sure.

[00:04:07] Speaker 03:
Right.

[00:04:07] Speaker 01:
But that hasn't said one word about what this

[00:04:11] Speaker 01:
what it means to have a fan blade tip speed less than 1400, except that it doesn't mean what you say it means.

[00:04:18] Speaker 03:
We agree that it's tautological, that it isn't a proper construction of the claim, but when they apply it to the reference, they make it clear that they're treating it as a capability.

[00:04:28] Speaker 03:
They specifically cite GE statements, that it's a mere capability, that it can be at any operating condition.

[00:04:34] Speaker 03:
And when they apply that, what they left as a construction,

[00:04:37] Speaker 03:
to the reference, they specifically point that out, that it is capable of and it operates at least at some point during the flight envelope.

[00:04:44] Speaker 01:
Tell me if this is wrong.

[00:04:45] Speaker 01:
My recollection is that your argument against this claim term being met by, is this Hess?

[00:04:52] Speaker 03:
Yes, your honor.

[00:04:53] Speaker 01:
Is a Hess.

[00:04:54] Speaker 01:
Is a single point, not more than a single point, which is nothing in this very short Hess reference ever says the engine doesn't go above 1400.

[00:05:06] Speaker 03:
That is what the board characterized it at, Your Honor, but that is not correct.

[00:05:10] Speaker 03:
We also challenged the disclosure of Hess specifically, that Hess is a combination of three different embodiments with a graphic that doesn't, and they specifically say the transmissions on those different embodiments are different transmissions, different size transmissions.

[00:05:27] Speaker 03:
And then it provides a cartoon graphic that gives a schematic of a transmission

[00:05:33] Speaker 03:
without ever saying it is the one for the ADP engine or the one for the PW8000 engine.

[00:05:39] Speaker 03:
That is a conclusion the board drew that is not supported by the evidence.

[00:05:44] Speaker 03:
With respect to the claim construction, what the board was looking for is an explicit requirement.

[00:05:51] Speaker 03:
And it says this repeatedly at 11, at 12, that it wasn't described expressly enough for the board.

[00:05:59] Speaker 03:
But we are long past the point where claim construction is interpreted in that way.

[00:06:03] Speaker 03:
We are not looking only at the literal language of the term.

[00:06:06] Speaker 03:
We're not looking only for the language of the claim and only if there's an expressed disclaimer or a redefinition.

[00:06:13] Speaker 03:
The court's precedent at this point, and I'd cite the court to trustees of Columbia University, where the court has a discussion of the historical evolution of claim construction in this court, where you always consider the specification, that specification

[00:06:27] Speaker 03:
as was said in Phillips, is often the best guide.

[00:06:30] Speaker 03:
And what this specification says specifically is it discloses an apparatus and it discloses a method.

[00:06:38] Speaker 03:
And it makes it very clear that the way you start the design of this engine is by designating a boundary condition.

[00:06:45] Speaker 03:
And that means something very specific to persons of ordinary skill in the art.

[00:06:49] Speaker 03:
And that evidence is uncontested.

[00:06:52] Speaker 01:
Am I remembering right?

[00:06:54] Speaker 01:
Your expert had some reference, I think, in a deposition to this referring to a steady state operating condition.

[00:07:03] Speaker 01:
Do you know what I'm talking about?

[00:07:04] Speaker 01:
Yes, I do, Your Honor.

[00:07:06] Speaker 03:
He did make that statement, but he made it in the context of being asked about corrected fan tip speed.

[00:07:15] Speaker 03:
He also made a number of other statements.

[00:07:17] Speaker 03:
So, for example,

[00:07:19] Speaker 03:
What the board ignored in graphing onto that one qualified statement, it ignored the statements and I can give your honor a list.

[00:07:27] Speaker 03:
And the appendix at 5306 paragraph 27, it imposes a maximum fan blade tip speed, full stop.

[00:07:36] Speaker 03:
At 5307 paragraph 29, it's present at all operating conditions.

[00:07:42] Speaker 03:
At 5308 at paragraph 31, it sets a boundary condition which is a limit.

[00:07:48] Speaker 03:
Um, at five, three, one, one at paragraph 38, it does not exceed.

[00:07:54] Speaker 03:
Um, and it goes on at five, three, one, two, five, three, one, four, one, seven.

[00:07:58] Speaker 03:
There are a number of statements that Dr. Mattingly gave about a dozen of them where he made it very clear that this is a speed limit.

[00:08:05] Speaker 03:
It's a maximum.

[00:08:06] Speaker 03:
That's what a boundary condition means.

[00:08:09] Speaker 03:
And what the board did is latched onto one qualified statement while ignoring this dozen.

[00:08:14] Speaker 03:
of other statements from the portions I read up through paragraph 53, which make it clear that it is a speed limit.

[00:08:21] Speaker 03:
And he's not alone.

[00:08:22] Speaker 03:
We asked Dr. Abari about that as well.

[00:08:26] Speaker 03:
And if you would look at the testimony of Dr. Abari, which shows up at the appendix at 5173 down through about 5187, there are some very specific questions I asked him.

[00:08:39] Speaker 03:
You consider fan tip speed to be part of the boundary conditions.

[00:08:42] Speaker 03:
I consider this to be one of the elements that used to define the operational condition.

[00:08:47] Speaker 03:
I asked him, so the boundary condition is a limit.

[00:08:50] Speaker 03:
He answered, it's a limit.

[00:08:51] Speaker 03:
And then he goes on to qualify his answer, but he says point blank.

[00:08:55] Speaker 03:
It is a limit.

[00:08:57] Speaker 03:
Is the fan tip speed a limit?

[00:09:01] Speaker 03:
And he said the fan tip speed's a condition.

[00:09:04] Speaker 03:
Now he didn't want to admit that it was a hard speed limit.

[00:09:07] Speaker 03:
He drew the qualification between a hard and a soft speed limit.

[00:09:11] Speaker 03:
which is pretty much meaningless.

[00:09:12] Speaker 03:
We have both experts agreeing one of ordinary skill in the art would understand a boundary condition of fan tip speed to be a limit, a maximum fan tip speed.

[00:09:24] Speaker 03:
This is an apparatus claim we're in front of you today on.

[00:09:27] Speaker 03:
The method claim specifically says in the design process I'm going to set a boundary condition.

[00:09:33] Speaker 03:
The specification says it repeatedly at column one, at column five,

[00:09:38] Speaker 03:
The specification specifically says in column one, I'm sorry, column one at lines 49 to 50, the fan tip speed is less than 1400 feet per second.

[00:09:49] Speaker 03:
Improving, this is at column five, lines 50 to 53.

[00:09:53] Speaker 03:
Improving the performance of the gas turbine engine begins by determining fan tip speed boundary conditions for at least one fan blade of the fan 36.

[00:10:04] Speaker 03:
And what is critical here is

[00:10:06] Speaker 03:
to define the speed of the tip of the fan blade.

[00:10:10] Speaker 03:
So what we've included in the apparatus claim is an apparatus, a product description that says I have a fan that has a speed limit.

[00:10:18] Speaker 03:
What we included in the method claims that are not before you is I'm going to design a fan by imposing a boundary condition.

[00:10:24] Speaker 03:
And like I said, one of ordinary skill in the art would understand that that means a speed limit, a maximum.

[00:10:30] Speaker 03:
And that is what this invention is.

[00:10:32] Speaker 03:
That's what the inventors describe the invention as in the specification.

[00:10:36] Speaker 03:
And for the board to give it a tautological, literal interpretation ignores how the inventors themselves described their invention.

[00:10:46] Speaker 03:
What the board said specifically is, we find no clear link.

[00:10:50] Speaker 03:
Well, Your Honor, the portion I just read to define the speed of the tip of the fan blade is a clear link.

[00:10:56] Speaker 03:
We respectfully disagree with the board's conclusion in that regard.

[00:11:00] Speaker 03:
It couldn't be clearer.

[00:11:01] Speaker 03:
They're telling you that it is the speed limit.

[00:11:05] Speaker 03:
At best, all I can say about the board's interpretation is it's too parsimonious.

[00:11:09] Speaker 03:
It is not looking at the specification fairly, reasonably, and reading it as the inventors describe their own invention.

[00:11:18] Speaker 01:
Do I take it you don't give any particular significance to the fact that I think in the principal claim we've been focusing on at one point, maybe the first place, that fan

[00:11:32] Speaker 01:
and blade tip speed has the word, has the indefinite article in front of it and later it has a definite article in front of it which for a term like speed is at least I find a little bit funny that those two different articles would be used because speed is a momentary property that changes from moment to moment so that the indefinite article

[00:12:02] Speaker 01:
would tend to suggest all by itself that it just has to have one of those at some point.

[00:12:09] Speaker 01:
And later, the claim says the fan blade tip speed, suggesting it's really not a momentary property of the tip of the fan.

[00:12:20] Speaker 03:
I guess we are not putting weight in that, Your Honor.

[00:12:24] Speaker 03:
What we're putting weight in is the way the inventors describe the invention.

[00:12:27] Speaker 03:
Namely, I'm going to set a design parameter

[00:12:29] Speaker 03:
That's what's going to enable me to design this geared turbofan engine, and it's got to be a speed limit on the fan.

[00:12:34] Speaker 03:
All the blades will have the same speed.

[00:12:36] Speaker 02:
The fan blade tip speed, that's central to the case and even to the argument this morning.

[00:12:46] Speaker 02:
But apparently, the only terms that were construed were gear ratio and bypass ratio was

[00:12:55] Speaker 02:
Fan blade tip speed, was it construed on claim one, which later was abandoned?

[00:13:00] Speaker 03:
No, Your Honor.

[00:13:02] Speaker 02:
Was there any construction at all with respect to a fan blade tip speed of a fan less than 1,400 feet per second?

[00:13:11] Speaker 03:
I think the board construed all three in its institution decision.

[00:13:15] Speaker 03:
If you look at the appendix at six, there's a reference to the three terms.

[00:13:19] Speaker 02:
I'm looking at that.

[00:13:22] Speaker 02:
Just as we interpreted the following terms,

[00:13:24] Speaker 02:
gear ratio and bypass ratio.

[00:13:29] Speaker 03:
I just... Well then, the next sentence continues on.

[00:13:32] Speaker 03:
It says, we are also not persuaded that the fan blade tip speed of less than 1,400 feet per second, as recited in claim one, is a speed limit, which is what we had argued in our POPR.

[00:13:41] Speaker 02:
That's not a construction.

[00:13:43] Speaker 02:
Okay, I don't see that as a construction.

[00:13:45] Speaker 02:
Just as a conclusion or a finding, perhaps.

[00:13:49] Speaker 02:
Does that make any difference?

[00:13:51] Speaker 03:
I don't think it does, Your Honor.

[00:13:52] Speaker 03:
As a practical matter, I think what's on Appendix 13, although I agree with Judge Gerrano, it's not a construction as we would expect one.

[00:13:59] Speaker 03:
It's just a tautological statement of what the limitation says.

[00:14:03] Speaker 03:
But that's how they applied it.

[00:14:04] Speaker 03:
They applied it as if that were the... I see that I'm well into my rebuttal time, Your Honor.

[00:14:08] Speaker 03:
I would like to reserve the rest of it to respond to my colleagues' comments.

[00:14:17] Speaker 00:
All right.

[00:14:18] Speaker 00:
That's fine.

[00:14:18] Speaker 00:
With respect to the anticipation ground, the appeal here is entirely about claim construction.

[00:14:29] Speaker 00:
I disagree with Mr. Coyne's statement that there was an appeal here about the board's factual findings regarding the Hess reference that is not found anywhere in UTC's brief.

[00:14:40] Speaker 00:
UTC, in fact, does not dispute any of the findings regarding the Hess reference, including that Hess

[00:14:46] Speaker 00:
explicitly discloses a fan blade tip speed of 1,060 feet per second.

[00:14:52] Speaker 00:
So the board here, in our view, was correct to reject UTC's proposed construction requiring that the fan blade tip speed be less than 1,400 feet per second at all times during engine operation.

[00:15:04] Speaker 00:
That's the construction that the UTC proposed, and the board reject that.

[00:15:08] Speaker 00:
And in rejecting that construction, the board really just gave the claim it's plain meaning.

[00:15:13] Speaker 00:
I think that's the issue here.

[00:15:15] Speaker 00:
proposed a construction.

[00:15:16] Speaker 00:
So this is the plain language of the claim.

[00:15:17] Speaker 00:
It doesn't require that the fan blade tip speed be less than 1,400 feet per second at all times during operation.

[00:15:25] Speaker 00:
And there are really two layers to UTC's claim construction argument.

[00:15:30] Speaker 00:
The first is that it wants to construe the fan blade tip speed limitation to be a boundary condition.

[00:15:35] Speaker 00:
But that term is found in the specification, but it's used in other claims, other method claims that are not at issue here.

[00:15:41] Speaker 00:
And then second, the second layer of the argument is that UTC relies on expert testimony to argue that a boundary condition is one that applies at all times during engine operation.

[00:15:53] Speaker 00:
So the board was correct.

[00:15:56] Speaker 00:
It evaluated the specification.

[00:15:57] Speaker 00:
It didn't ignore the specification.

[00:15:59] Speaker 00:
And it said here, the specification does not allow us to import the boundary condition language into the claim.

[00:16:06] Speaker 00:
And then importantly, the board weighed the expert testimony.

[00:16:10] Speaker 00:
And so we've looked at the expert testimony, and the expert testimony here doesn't tell us that a boundary condition is one that applies at all times during operation.

[00:16:19] Speaker 01:
What is your expert testimony or other basis for interpreting this boundary condition language or understanding it as something other than a hard limit?

[00:16:33] Speaker 00:
So there's the expert testimony from Dr. Mattingly that the board relied on on page

[00:16:39] Speaker 00:
12 and 13 of his decision, where first- Mattingly is their guy.

[00:16:43] Speaker 00:
They're their expert.

[00:16:44] Speaker 00:
And the board did not cite- You still have Abari here?

[00:16:47] Speaker 00:
We do.

[00:16:48] Speaker 00:
OK.

[00:16:48] Speaker 00:
So our expert, Dr. Abari, did testify on this issue.

[00:16:51] Speaker 00:
The board did not cite that testimony in its decision, but it does support the board's decision.

[00:16:56] Speaker 00:
And that would be at appendix 51875188.

[00:17:01] Speaker 00:
And Dr. Abari there confirmed exactly what Dr. Mattingly

[00:17:06] Speaker 00:
was saying was that a boundary condition is not a maximum that applies at all times during operation.

[00:17:11] Speaker 00:
And what he testified to is that a boundary condition and a fan-tip speed, for example, is a parameter that's used to set optimum conditions to improve the performance of the engine.

[00:17:22] Speaker 00:
But all engines can exceed those conditions, those boundary conditions, because there are situations where the engine needs to operate at higher speeds.

[00:17:32] Speaker 00:
Necessity can involve

[00:17:35] Speaker 00:
exceeding boundary conditions, for example, emergency conditions.

[00:17:39] Speaker 00:
That testimony from Dr. Bari is not referenced by UTC at all, but it does support the board's decision.

[00:17:45] Speaker 00:
And did you say not referenced by the board?

[00:17:48] Speaker 00:
It is not referenced by the board as well.

[00:17:50] Speaker 00:
The board relied exclusively on Dr. Mattingly's testimony.

[00:17:53] Speaker 00:
The steady state line?

[00:17:54] Speaker 00:
Exactly, the steady state.

[00:17:55] Speaker 00:
So there were actually two parts to Dr. Mattingly's testimony.

[00:17:58] Speaker 00:
The first was we asked him at his deposition, does the fan tip speed range, is that something that applies

[00:18:04] Speaker 00:
during the design process or to an actual engine.

[00:18:06] Speaker 00:
And he said clearly, it's for the design process, not an actual engine.

[00:18:10] Speaker 00:
So it's not a limit that applies during all engine operating conditions.

[00:18:14] Speaker 00:
And then, of course, he qualified during his deposition.

[00:18:18] Speaker 00:
We asked him, what is this maximum fan tip speed?

[00:18:21] Speaker 00:
And he qualifies.

[00:18:22] Speaker 00:
He says, well, it's a maximum for steady state operation.

[00:18:25] Speaker 00:
OK, that qualifier by Dr. Mattingly means that it is not a maximum for non-steady state operations, exactly what Dr. Arbari was talking about for

[00:18:33] Speaker 00:
You know, the engine necessitates, for example, emergency conditions, a non-steady state.

[00:18:38] Speaker 00:
So the bottom line is the board looked at the expert testimony and made a factual finding.

[00:18:45] Speaker 01:
Do you think that the board actually adopted a construction?

[00:18:48] Speaker 00:
I think the board gave the claim term its plain meaning.

[00:18:51] Speaker 00:
I don't think the board gave an express construction.

[00:18:53] Speaker 01:
What is the plain meaning?

[00:18:54] Speaker 00:
That you have it.

[00:18:56] Speaker 01:
I would find it hard for you to say that this notion of steady state or something is a plain meaning.

[00:19:04] Speaker 00:
Right.

[00:19:05] Speaker 01:
I don't think the board... And it's certainly not capable of operation at any given time.

[00:19:11] Speaker 01:
That's different from steady state.

[00:19:14] Speaker 00:
I think the board gave the plain meaning of the claim, at least in our view, is that you have an engine that operates at a fan tip speed less than 1,400 feet per second.

[00:19:23] Speaker 01:
Won't all engines do that when they're just starting up?

[00:19:28] Speaker 01:
Well, I think that goes to the issue...

[00:19:30] Speaker 00:
That goes to the board's construction and bypass ratio and saying that these parameters are related.

[00:19:35] Speaker 00:
Because, for example, when you're spooling up the engine, and this was conceded by UTC at the oral hearing, when you're spooling up the engine, it doesn't have a bypass ratio.

[00:19:44] Speaker 00:
Right?

[00:19:44] Speaker 00:
So even though you may have a fan tip speed of 50 feet per second and you're sort of incrementally increasing it very fast, at that point in time, you don't even have a bypass ratio.

[00:19:53] Speaker 00:
So you will not have an engine that has a bypass ratio between 11 and 22.

[00:19:58] Speaker 00:
and a fan tip speed less than 1,400 feet per second.

[00:20:01] Speaker 00:
So that was the context for the board's decision.

[00:20:04] Speaker 01:
Where's the board's explanation of that point?

[00:20:10] Speaker 01:
Namely that you can pretty much ignore the extremely slow tip speed except at times when the bypass ratio meets the other claim limitations and you

[00:20:28] Speaker 01:
won't universally get the extremely slow tip speed out of any engine when you have that bypass ratio.

[00:20:41] Speaker 01:
Acclaimed bypass ratio.

[00:20:41] Speaker 00:
You know, I don't recall exactly if it's in the board's decision.

[00:20:43] Speaker 00:
I do remember at the oral hearing, and it's cited in our papers, the fact that this goes to the issue of whether the limitation is rendered meaningless, which is the argument.

[00:20:55] Speaker 00:
And that was an appendix 1032, 1033, where

[00:20:59] Speaker 00:
the board asked the questions of UTC at the hearing about whether spooling up would actually fall within the scope of this claim.

[00:21:06] Speaker 00:
And we believe it was conceded by UTC that it would not.

[00:21:09] Speaker 00:
And that was at 1032, 1033.

[00:21:11] Speaker 02:
Why is that?

[00:21:12] Speaker 02:
Because there's no airflow at the spooling up stage?

[00:21:15] Speaker 00:
Exactly.

[00:21:15] Speaker 00:
You only have a bypass ratio of 11 to 22 means you have to have a certain mass flow going through the bypass duct over the mass flow through the core.

[00:21:23] Speaker 00:
And if you're spooling up, you don't have sufficient mass flow

[00:21:27] Speaker 00:
through the bypass duct and therefore you're not going to have a bypass ratio between 11 and 22.

[00:21:31] Speaker 01:
Does your underlying evidence say one way or the other whether admittedly if the engine is not running there's not much air coming in but I would think there wouldn't be much air coming in either to the core or to the outside of the core.

[00:21:45] Speaker 01:
Is there something that explains that and the only thing the claim cares about is the ratio.

[00:21:50] Speaker 01:
Is it that the ratio changes according to how much

[00:21:53] Speaker 01:
total air is hitting the front of the nacelle?

[00:21:56] Speaker 00:
Right.

[00:21:56] Speaker 00:
So the bypass ratio is the mass flow through the bypass duct divided by the mass flow through the core.

[00:22:01] Speaker 01:
Does the ratio change according to how much?

[00:22:03] Speaker 00:
It will change over the operating conditions of the engine.

[00:22:07] Speaker 00:
But the principal point is during spooling up, which was sort of the argument that UTC made about the limitation being meaningless, there is no bypass ratio because you haven't produced sufficient mass flow through the bypass duct.

[00:22:21] Speaker 00:
And especially in this instance where they're claiming

[00:22:23] Speaker 00:
a bypass ratio of 11 to 22.

[00:22:26] Speaker 00:
So you have to have a significant amount of flow through the bypass stock to get to that ratio.

[00:22:33] Speaker 00:
Let me quickly address, again, the issue.

[00:22:39] Speaker 00:
I think the principal issue in UTC's brief was that if you don't construe this claim term, if you don't revise this claim to say that it's at all times during engine operation, you're going to render this term meaningless.

[00:22:52] Speaker 00:
And we disagree, again, for the purposes of prosecution with a related application, UTC took the exact opposite position.

[00:23:00] Speaker 00:
So I don't think sitting here today, UTC can say that a fan blade tip speed is less than a certain number must be construed to be a maximum at all times.

[00:23:11] Speaker 00:
Otherwise, it's meaningless because it told the office the exact opposite during prosecution of a very similar application.

[00:23:17] Speaker 00:
Also, I think this is important too, the board here just gave

[00:23:21] Speaker 00:
the term it's plain meaning.

[00:23:23] Speaker 00:
And the cases that you teach... I just want to clarify something.

[00:23:28] Speaker 01:
I guess I keep thinking I'm dubious about the proposition that the board gave the term it's plain meaning, but I'm not sure that your argument depends on accepting that proposition as opposed to the board rejected the hard limit idea in the absence of the hard limit idea, there is no contention that Hess is missing it.

[00:23:49] Speaker 00:
I agree with the latter point.

[00:23:51] Speaker 00:
In the absence of a hard limit, there is no contest here because Hess discloses a fan tip speed of 1,060 feet per second.

[00:24:00] Speaker 00:
So with respect to whether the term is rendered meaningless, I think the key point there is that the cases that UTC cites were in issues where the court had construed a claim and had made the term nonsensical or rendered it or vitiated the claim limitation.

[00:24:16] Speaker 00:
Here, UTC chose to write this claim as it is.

[00:24:21] Speaker 00:
if it wanted a different claim in the board proceedings, it actually had an opportunity to do that, and it was to amend the claims.

[00:24:28] Speaker 00:
So that's why, in this case, prohibiting an amendment to a claim, which is basically what UTC is proposing, is even more compelling than in the Chef America vagabond systems cases, because here, again, UTC had the opportunity to amend, but it chose not to.

[00:24:45] Speaker 00:
Unless your honor has any questions, I have nothing more.

[00:24:51] Speaker ?:
Thank you.

[00:24:53] Speaker 02:
We have three minutes.

[00:24:56] Speaker 03:
Thank you, Your Honor.

[00:24:58] Speaker 03:
Your Honor, I have six brief points.

[00:25:00] Speaker 03:
Number one, the question of whether we preserved the issue on Hess and the multiple embodiments.

[00:25:05] Speaker 03:
The answer is opposite of what my colleague said.

[00:25:09] Speaker 03:
Yes, we did.

[00:25:10] Speaker 03:
It's at page 32 to 34 of the blue brief.

[00:25:14] Speaker 03:
The expert testimony is undisputed.

[00:25:16] Speaker 03:
There is equivocation by Dr. Abari.

[00:25:19] Speaker 03:
But both Mattingly and Abari agreed that boundary condition means a speed limit, a maximum.

[00:25:26] Speaker 03:
With respect to the third point, the portions of Dr. Mattingly's testimony that was cited, I gave you the citations during answering Judge Toronto's questions.

[00:25:35] Speaker 03:
They are ample, and there are a dozen of them.

[00:25:37] Speaker 03:
They simply took one out of context and ignored the balance.

[00:25:41] Speaker 03:
And to Dr. Abari's point that, well, it may be a design criteria condition, but, you know, you can exceed it on emergency conditions.

[00:25:48] Speaker 03:
Well, actually, no, you can't.

[00:25:50] Speaker 03:
These engines are certified by the Federal Aviation Administration.

[00:25:54] Speaker 03:
And Dr. Mattingly specifically testified that that type certification requires that the engine be operated within its design envelope.

[00:26:02] Speaker 03:
And that's in the appendix at 5322 at paragraph 53.

[00:26:06] Speaker 03:
So even Dr. Abari's equivocation is unavailing.

[00:26:11] Speaker 03:
With respect to the meaningless limitation point, we do have a divergence of view between my colleague and me.

[00:26:18] Speaker 03:
They are arguing, well, it doesn't render the claim meaningless as a whole.

[00:26:23] Speaker 03:
With all due respect, that is not the law.

[00:26:26] Speaker 03:
We cite a number of cases in our brief that make it very clear that vitiation of a claim term deals with vitiation of that limitation.

[00:26:35] Speaker 03:
It doesn't require that the entire claim be rendered meaningless.

[00:26:39] Speaker 03:
this term construed the way the board apparently has construed it would.

[00:26:44] Speaker 03:
No matter what speed you're going to operate on, the engine has to go at some point between 0 and 1,400 every time it's turned on and every time it's turned off.

[00:26:54] Speaker 03:
And there is no dispute about that fact.

[00:26:57] Speaker 03:
Dr. Abbari agreed with it.

[00:26:59] Speaker 01:
But is there a dispute about whether that always happens when the other claim limitation is also met?

[00:27:06] Speaker 03:
No, Your Honor, because I think, well, there is under their view, because they're saying we have to show that the entire claim is meaningless.

[00:27:12] Speaker 03:
That's not the law.

[00:27:13] Speaker 03:
The cases we cited in our brief make clear that it is vitiation of a limitation.

[00:27:17] Speaker 03:
It's the 1400 limitation that is being rendered meaningless, and that is what's improper.

[00:27:22] Speaker 03:
Finally, my colleague stated that we made admissions in related applications.

[00:27:28] Speaker 03:
This is just not true.

[00:27:30] Speaker 03:
The application he's referring to is not a related case.

[00:27:33] Speaker 01:
But he uses the same phrase, right?

[00:27:35] Speaker 03:
Sorry, Your Honor?

[00:27:36] Speaker 01:
It uses the same phrase.

[00:27:37] Speaker 03:
It uses the same phrase, but it's in a very different context.

[00:27:41] Speaker 03:
And what he ignores is the EPO application, which is a related application to this, in which the examiner made a similar rejection.

[00:27:50] Speaker 03:
And we responded specifically that it is a maximum.

[00:27:55] Speaker 03:
So if you're going to look to the other applications, I would suggest looking much more specifically at the EPO application.

[00:28:02] Speaker 03:
And the citation for that is in the appendix at 3364.

[00:28:12] Speaker 03:
And there's a statement there that we are saying very specifically that it is a maximum tip speed.

[00:28:18] Speaker 03:
Thank you, Your Honor.

[00:28:19] Speaker 03:
Unless there's any other questions.

[00:28:21] Speaker 02:
No.

[00:28:22] Speaker 02:
Thank you.

[00:28:22] Speaker 02:
Thank you very much.