[00:00:00] Speaker 02:
I haven't seen you in a while.

[00:00:07] Speaker 01:
Thank you, Your Honor.

[00:00:08] Speaker 01:
It has been a while.

[00:00:10] Speaker 01:
Your Honor, this case also involves an issue of claim construction.

[00:00:16] Speaker 01:
It is a more narrow appeal.

[00:00:18] Speaker 01:
The issue here is what does target operability line mean?

[00:00:23] Speaker 01:
The board construed it as a set of points on a fan map.

[00:00:28] Speaker 01:
at which the engine operates, which is exactly what GE had, well, with slight variations in wording, which is what GE had asked them to construe it as, and what GE admitted would be construing it as the same thing as an operating line.

[00:00:42] Speaker 01:
I apologize for the similarity of these terms, but if the court could look at page five of the blue brief, I'd like to try to kind of clarify some of these.

[00:00:52] Speaker 01:
And this is a demonstrative that we used at the board

[00:00:56] Speaker 01:
And what it does is it shows these concepts that are described in the specification.

[00:01:01] Speaker 01:
Number one is the stall or flutter boundary.

[00:01:04] Speaker 01:
This is what you're seeing is what's called a fan map, and it's a map of corrected mass flow rate on the x-axis against the pressure ratio across the fan on the y-axis.

[00:01:17] Speaker 01:
So generally, as the corrected mass flow rate goes up, the pressure ratio generally goes up.

[00:01:24] Speaker 01:
And what you're seeing is the red line is the stall boundary.

[00:01:27] Speaker 01:
If the fan exceeds that line, you get into an area where it may not fail immediately, but you're in an unstable flow condition from the physics of it.

[00:01:37] Speaker 01:
And it's extremely dangerous to operate in that area.

[00:01:40] Speaker 01:
So you want to stay away from that line.

[00:01:43] Speaker 01:
And what most designers do is they build an ample margin in so that you don't get too close to that line at any point in the flight envelope, because it's a safety issue.

[00:01:53] Speaker 01:
The second concept here is operating lines.

[00:01:56] Speaker 01:
Those are shown in blue on the demonstrative graphic.

[00:02:00] Speaker 01:
And what those are is at a constant geometry, if I'm not changing the geometry at all.

[00:02:06] Speaker 00:
At the back.

[00:02:07] Speaker 01:
At the back, at the variable area, at the variable axis model.

[00:02:12] Speaker 01:
What I'm going to get is the engine's going to move up and down along a single blue line.

[00:02:17] Speaker 01:
If I do change the geometry, then it's going to jump to a different line and move up and down along a different line.

[00:02:23] Speaker 01:
and so on, all the way up the graph.

[00:02:25] Speaker 01:
And what you're seeing at the green line is what the specification defines and describes as the target operability line.

[00:02:33] Speaker 01:
That's a set of points also on a fan map that defines where I go as I move from one operating line to another as I'm changing the geometry.

[00:02:45] Speaker 01:
What the error here that we allege is that the board erred by ignoring

[00:02:49] Speaker 01:
the definition the inventors gave target operability line in the specification.

[00:02:56] Speaker 01:
The term is defined there, and under Cuozzo and in Ray Smith, the board should have looked at that location.

[00:03:05] Speaker 02:
Where is that definition?

[00:03:07] Speaker 01:
The definition that we propose would be the set of points that connects the different

[00:03:15] Speaker 01:
operating points on different operating lines as you jump from operating line to another, as you jump from one to another.

[00:03:22] Speaker 01:
It would be the green line on page five.

[00:03:24] Speaker 00:
I think you said that the specification defines it, and I took Judge Rainn's question to be where exactly does the specification define it.

[00:03:34] Speaker 01:
The specification starts in the abstract by defining those three concepts and the space between where you are actually operating and the stall margin.

[00:03:44] Speaker 01:
Appendix at 43.

[00:03:45] Speaker 01:
It starts with the abstract.

[00:03:48] Speaker 01:
There's a definition there of moving the operating line toward the stall or flutter boundary to reduce the operating margin.

[00:03:56] Speaker 01:
That's the whole point of this invention.

[00:03:59] Speaker 01:
I don't want to suffer where the designer put me on the fan map.

[00:04:02] Speaker 01:
I want to get closer to the stall margin without going over it because it gives me better fuel efficiency, better performance by closing down that operating margin.

[00:04:12] Speaker 00:
And you're going to do that with a controller that modifies the nozzle?

[00:04:15] Speaker 00:
Correct.

[00:04:17] Speaker 01:
Based on flight conditions.

[00:04:18] Speaker 01:
So I can constantly monitor where I am on that fan map and I can adjust the nozzle so that I'm moving myself toward that boundary without going over it throughout the flight envelope.

[00:04:29] Speaker 01:
That's simply what the invention is.

[00:04:32] Speaker 01:
So at page 46, column one, lines five to seven, again, the invention relates to managing fan operability.

[00:04:39] Speaker 01:
Very clear statement.

[00:04:41] Speaker 01:
At lines 16 to 19, that fan operating line can be manipulated during engine operation to ensure that the operability margin is sufficient.

[00:04:52] Speaker 01:
At lines 22 to 24, I'm going to do this to meet desired fan operability conditions.

[00:05:00] Speaker 01:
At 24 to 26, I'm going to do it throughout the flight envelope.

[00:05:05] Speaker 01:
And again, at 37 to 40.

[00:05:08] Speaker 01:
I'm moving this line throughout the flight envelope using this controller.

[00:05:13] Speaker 01:
If you look down at column one again at line 56 to 62, there's a very clear statement.

[00:05:19] Speaker 01:
A change in the effective nozzle exit area is used to move the operating line toward a turbofan stall or flutter boundary by manipulating the turbofan pressure ratio.

[00:05:31] Speaker 01:
As a result, engine operating conditions and

[00:05:34] Speaker 01:
normally have a necessarily large operating conditions with conventional fixed nozzles can be made more efficient.

[00:05:41] Speaker 01:
And then at the last place I direct the court is at column three at lines 30 to 37.

[00:05:48] Speaker 01:
A change in the effective nozzle area, which changes the turbofan pressure ratio, is used to move the operating line toward the stall or flutter boundary of the turbofan 22 to a target operability line.

[00:06:02] Speaker 01:
And to skip over the next sentence,

[00:06:04] Speaker 01:
Better fuel consumption, for example, is achieved by decreasing the turbofan pressure ratio toward the stall or flutter boundary, which decreases the fan operability margin.

[00:06:14] Speaker 01:
So what we see in these portions of the spec is really four things.

[00:06:18] Speaker 01:
I'm going to change the variable area nozzle, and when I do that, I'm changing the bypass ratio of the engine.

[00:06:24] Speaker 01:
I'm going to move it closer to the operating line, closer to the, excuse me, the stall line, moving the operating line closer to the stall or flutter boundary or margin.

[00:06:34] Speaker 01:
And when I do that, it's going to reduce the operability margin.

[00:06:38] Speaker 01:
And when it does that, it's going to increase fuel efficiency and increase performance.

[00:06:43] Speaker 01:
And I do all that through the controller.

[00:06:45] Speaker 01:
Surprisingly, the board made a number of findings that are entirely consistent with that explanation that I just gave you.

[00:06:53] Speaker 01:
They found, and this is the appendix at eight in the board's opinion, the parties agree.

[00:06:59] Speaker 01:
that a given fan operating line identifies how the plotted performance characteristics of the fan having a constant nozzle exit area will change with changing throttle inputs.

[00:07:09] Speaker 01:
And then a few lines later, that each fan operating line illustrated in Willis and Mattingly fan maps corresponds to one nozzle area configuration.

[00:07:18] Speaker 01:
So they're agreeing that there is no dispute in this case.

[00:07:21] Speaker 01:
The parties agree that the operating line is at a fixed geometry.

[00:07:26] Speaker 01:
And then they continue.

[00:07:27] Speaker 01:
The specification repeatedly is outlined at page 12.

[00:07:32] Speaker 01:
The specification repeatedly uses the terms operability and operating.

[00:07:37] Speaker 01:
These discussions suggest a difference in meaning between a fan's target operability line and the fan's operating line.

[00:07:44] Speaker 01:
And then again at page 12 and again at 13, the operating line is different than the operability line.

[00:07:54] Speaker 01:
The 513 patent establishes a difference in meaning between the fan's target operability line and operating line.

[00:08:01] Speaker 01:
And that difference, this is at appendix 13, is optimizing the fan operability margin.

[00:08:07] Speaker 01:
The board also concedes that the concept of optimization is contained in the specification.

[00:08:12] Speaker 01:
So how did we go awry here?

[00:08:14] Speaker 01:
The board seems to be making factual findings, based on the intrinsic evidence at least, that are consistent with the construction that we had proposed.

[00:08:23] Speaker 01:
It basically construed the term at 13 and 16 as a set of points on a fan map at which the fan is designed to operate, which is the same thing GE had been urging for operating line.

[00:08:35] Speaker 01:
So at some point, they simply decided that they were not going to follow their own findings or follow the specification and construed these two terms as the same.

[00:08:46] Speaker 01:
The reason we believe they did so is that GE had made arguments that UTC allegedly gave away the farm.

[00:08:54] Speaker 01:
during prosecution by making certain admissions.

[00:08:56] Speaker 01:
And again, as we talked about in the last appeal, we believe those statements are grossly overplayed by GE in this case.

[00:09:03] Speaker 01:
The office action is at page 2564 of the appendix.

[00:09:08] Speaker 01:
And what the examiner cited was, it's not clear to me whether this target operability line is talking about a characteristic of the spool, the entire apparatus of the turbine, the shaft, and the compressor.

[00:09:22] Speaker 01:
or whether it's talking about the fan.

[00:09:25] Speaker 01:
And what we did is responded that, and this is appendix at 2573, the term target operability line is clearly understood in the art.

[00:09:35] Speaker 01:
Again, it was a definiteness rejection, not a claim construction issue.

[00:09:39] Speaker 01:
The meaning of this term is set forth in many industry documents, for example, SAE document AIR 1419.

[00:09:46] Speaker 01:
And then it continues, an operating line or operational line

[00:09:51] Speaker 01:
may be expressed by multiple operating points.

[00:09:54] Speaker 01:
Absolutely correct.

[00:09:55] Speaker 01:
But it is not a definition of target operability line.

[00:09:58] Speaker 01:
The operating line represents a location on a map where an engine may operate without encountering instability.

[00:10:05] Speaker 01:
And then they respond to the examiner's rejection, which was the target operability line relates to the turbofan or fan and not the spool.

[00:10:14] Speaker 01:
This is by no means an admission or concession of the nature that GE is arguing here.

[00:10:19] Speaker 01:
The examiner was confused.

[00:10:21] Speaker 01:
Does it relate to the fan or the spool?

[00:10:24] Speaker 01:
We responded and amended the claims to make it clear that it relates to the fan.

[00:10:28] Speaker 01:
We defined operating line as... Can you help me out on one thing?

[00:10:32] Speaker 00:
Yes, Your Honor.

[00:10:34] Speaker 00:
So if you go back to where you started, 2564, the paragraph four, which is, I think, the key paragraph in the initial rejection, is that the as best can be determined sentence at the very end of that paragraph?

[00:10:49] Speaker ?:
Yes.

[00:10:51] Speaker 00:
Is there something garbled grammatically about that?

[00:10:54] Speaker 01:
I don't... Yes, I think so.

[00:10:57] Speaker 00:
It's not as clear as it could be.

[00:10:58] Speaker 00:
What do you think the intended correct version is of that sentence?

[00:11:02] Speaker 01:
The limitation appears to be in the operation of the low pressure spool during operation of the engine is defined a fan operating line.

[00:11:09] Speaker 01:
Yes, I think it is somewhat garbled, but I think what he's asking, at least what we understood him to be asking, is it's not definite, not clear to him whether this limitation relates to the fan or the spool.

[00:11:20] Speaker 01:
And that's what we responded saying it relates to the school.

[00:11:24] Speaker 01:
And since it was a definiteness rejection, we also said one of ordinary skill in the art would understand what the term target operability line means.

[00:11:30] Speaker 00:
And then if I'm remembering right, what you pointed to were things specifically about terminology of operating line and some variant on operating line, but not operability.

[00:11:42] Speaker 01:
Yes, we said that the document that we referred to, the SAE document, defines operating line.

[00:11:48] Speaker 00:
What age?

[00:11:49] Speaker 01:
2573.

[00:11:50] Speaker 01:
That's 2573.

[00:11:53] Speaker 01:
And then answer the direct question specifically about whether it relates to the fan or the spool by saying the target operability line relates to the fan.

[00:12:04] Speaker 01:
So what this statement

[00:12:05] Speaker 01:
does not do is define target operability line as merely a set of points on a fan map where the engine operates.

[00:12:12] Speaker 01:
That's what an operating line is.

[00:12:14] Speaker 01:
And to convolve the two, as GE has done, is simply wrong and is inconsistent with the specification.

[00:12:21] Speaker 01:
There is also evidence of record from the experts that makes it clear that they agree.

[00:12:27] Speaker 01:
So, for example, we had submitted testimony from Dr. Bonini, who is our expert.

[00:12:33] Speaker 01:
And he had indicated that that is also the case.

[00:12:36] Speaker 01:
We had also looked to depose Dr. Attia, who was GE's expert.

[00:12:42] Speaker 01:
And what he stated specifically was that this was an unusual term.

[00:12:48] Speaker 01:
It was an unconventional term.

[00:12:50] Speaker 01:
One would have understood what it means, but it was not something that was a term of art in the industry.

[00:12:55] Speaker 01:
Which again, what GE has tried to convince the board to do is that they could ignore the specification, which as I read earlier,

[00:13:02] Speaker 01:
makes very clear what this operability concept is and that it is different than an operating line.

[00:13:10] Speaker 01:
Based on that error, we do believe the board has erred in construing the claims, specifically the target operability line, which is a set of points that connects where you jump from operating line to operating line to reduce the operability margin and equating it to an operating line.

[00:13:29] Speaker 01:
Under Inray Smith, this leaves its conclusion of anticipation and obviousness without substantial evidence support.

[00:13:36] Speaker 01:
We urge the court to reverse rather than vacate for further findings because the issues were flushed out fully below.

[00:13:42] Speaker 01:
And there's an ample record here to resolve this issue.

[00:13:44] Speaker 01:
Under the correct instruction, there is no substantial evidence.

[00:13:48] Speaker 02:
The specification, does it disclose the optimizing operability margin as being absolutely required?

[00:13:59] Speaker 01:
Well, it describes it as being the invention itself.

[00:14:02] Speaker 02:
As a portion I read originally, so for example, the first excerpt that I read, the invention manages... A lot of that seemed to be a characteristic or a trait, and I tend to agree that there's quite a bit of language in the specification that would tend to support your construction, but does it require it?

[00:14:23] Speaker 01:
Yes, Your Honor, it does require it.

[00:14:25] Speaker 01:
Because the entire specification describes that we're managing operability.

[00:14:29] Speaker 01:
That's the first line I read out of five to seven.

[00:14:32] Speaker 01:
And the claim limitation itself is target operability line.

[00:14:37] Speaker 01:
And what you're saying, it's describing what that means.

[00:14:40] Speaker 01:
And then the claim itself is saying, I am going to move this to a target operability line, which is closer to the stall or flutter margin.

[00:14:47] Speaker 01:
It's not a quantitative value, but it's a qualitative value.

[00:14:50] Speaker 01:
I have to be closing that operability gap.

[00:14:53] Speaker 01:
closing that margin.

[00:14:56] Speaker 01:
With respect to the Willis reference itself, Willis does not disclose anything like a target operability line.

[00:15:05] Speaker 01:
Your Honor, I see I'm well into my time.

[00:15:06] Speaker 01:
If I could reserve a minute or two to finish.

[00:15:09] Speaker 02:
Yes, you may.

[00:15:09] Speaker 01:
OK.

[00:15:10] Speaker 01:
Thank you.

[00:15:10] Speaker 01:
Thank you.

[00:15:15] Speaker 02:
Mr. Ferguson?

[00:15:17] Speaker 03:
Thank you, Your Honor.

[00:15:18] Speaker 03:
May it please the court?

[00:15:19] Speaker 03:
I guess it's good afternoon now.

[00:15:23] Speaker 03:
We need to be very clear here about what has taken place.

[00:15:28] Speaker 03:
UTC believed when it wrote this patent that the idea of taking a variable area fan nozzle, adjusting it on the fly while the engine is moving, and being able to move from one fan operating line, which is an understood term, to a different fan operating line in order to improve engine performance was a patentable invention.

[00:15:54] Speaker 03:
And they called that the target operability line in the claim.

[00:15:58] Speaker 03:
In the petition, they found out that that was not the case because Willis specifically disclosed, and you can look at appendix 2767 and 2768.

[00:16:09] Speaker 03:
I'm going to hold it right here for you.

[00:16:16] Speaker 00:
Wait a minute.

[00:16:19] Speaker 00:
2767.

[00:16:19] Speaker 00:
That's the picture that's everywhere, right?

[00:16:21] Speaker 03:
Right.

[00:16:21] Speaker 03:
2768.

[00:16:23] Speaker 03:
Well, it's everywhere.

[00:16:25] Speaker 03:
with respect to Willis.

[00:16:29] Speaker 03:
This is a fan operating map.

[00:16:34] Speaker 03:
There is a SLS sea level static operating line that Willis was designed for.

[00:16:41] Speaker 03:
You can see it's a fan operating line.

[00:16:46] Speaker 03:
Willis describes the use of a variable area fan nozzle to then, as the plane reaches cruise,

[00:16:54] Speaker 03:
to close that nozzle, which causes the fan operating line to move to the altitude cruise operating line, which is higher up on the fan map.

[00:17:06] Speaker 03:
It has a higher pressure ratio.

[00:17:09] Speaker 03:
And that is another fan operating line at which the engine is designed to operate using the variable area fan nozzle.

[00:17:21] Speaker 03:
That is precisely what UTC

[00:17:24] Speaker 03:
has described in the background section and in the summary and the invention section in the patent.

[00:17:31] Speaker 03:
The idea of moving from one fan operating line to another in order to improve engine performance.

[00:17:39] Speaker 03:
Willis specifically stated on page 2767 that the takeoff operating line was selected to keep jet velocity low for reduced noise.

[00:17:55] Speaker 03:
That's an engine performance, unequivocal.

[00:18:01] Speaker 03:
He then describes how you move to a higher operating line for the cruise point, and you do that by closing the variable exhaust nozzle to increase thrust at altitude.

[00:18:15] Speaker 03:
That's another engine performance, increasing thrust.

[00:18:18] Speaker 03:
This is exactly what the board found.

[00:18:21] Speaker 03:
So what does

[00:18:25] Speaker 03:
UTC do after it receives the petition and we get instituted.

[00:18:29] Speaker 03:
They decide, well, we can't call the target operability line the operating line that you want to be at.

[00:18:36] Speaker 03:
We have to come up with something different.

[00:18:38] Speaker 03:
And they came up with their drawing, which is in their blue brief, several places, where they describe for the first time this idea of we're not talking about being on different operating lines.

[00:18:51] Speaker 03:
No, no.

[00:18:52] Speaker 03:
We're talking about connecting points, connecting the dots between different operating lines, and that's the target operability line.

[00:19:01] Speaker 03:
That is exactly the opposite of what they told the Patent Office and what they told the European Patent Office.

[00:19:16] Speaker 03:
During the U.S.

[00:19:16] Speaker 02:
prosecution... The term fan operability,

[00:19:21] Speaker 02:
That's a term of art, right, in the industry?

[00:19:24] Speaker 03:
It is, yes.

[00:19:26] Speaker 03:
Yes.

[00:19:26] Speaker 03:
Fanoperability.

[00:19:27] Speaker 02:
You know this target operability line?

[00:19:30] Speaker 03:
Target, operability.

[00:19:32] Speaker 02:
So they created that?

[00:19:34] Speaker 03:
They claim that they coined or made up the term target operability line.

[00:19:39] Speaker 02:
It is in the patent.

[00:19:40] Speaker 03:
There's no question it's in the patent.

[00:19:42] Speaker 02:
There's various references to it in the patent.

[00:19:44] Speaker 03:
They use the term target operability line in the patent.

[00:19:47] Speaker 03:
There's no doubt about that.

[00:19:49] Speaker 03:
But what's important

[00:19:50] Speaker 03:
is what they told the patent offices, both US and European, what that meant in order to overcome rejections.

[00:20:01] Speaker 03:
The examiner in the US prosecution specifically said at 2564 that the term was indefinite because the specification does not describe what is the meaning of the term.

[00:20:15] Speaker 03:
That's contrary

[00:20:17] Speaker 03:
to the position that they're taking now that the specification does describe it.

[00:20:21] Speaker 03:
And in response, what did UTC say?

[00:20:24] Speaker 03:
They did not say that this was a term that they had made up and were defining in the specification.

[00:20:31] Speaker 03:
They said the exact opposite.

[00:20:33] Speaker 03:
They said that the term is clearly understood in the art.

[00:20:37] Speaker 00:
And they cited the SAE document, which I guess is 2575 to 2577.

[00:20:44] Speaker 00:
Exactly.

[00:20:46] Speaker 00:
document in those three pages with extremely small font, use the term operability line or just operating line?

[00:20:54] Speaker 03:
It uses only the terms operating lines.

[00:20:57] Speaker 03:
It is referring to traditional fan operating lines that a person of ordinary skill would understand.

[00:21:05] Speaker 03:
So, and then, after submitting that, and in fact, Your Honor, at 2576, there's actually at the top

[00:21:14] Speaker 03:
the drawing, it says fan operating line, fan on operating line.

[00:21:20] Speaker 03:
That's a traditional fan operating line.

[00:21:22] Speaker 03:
That's what they said, that's what they told the patent office.

[00:21:27] Speaker 03:
Their target operability line was a fan operating line.

[00:21:32] Speaker 03:
Operating lines is actually circled.

[00:21:34] Speaker 03:
After doing that, the examiner agreed and he said the SAE document in the remarks overcomes the indefiniteness rejection.

[00:21:44] Speaker 03:
Patent Office relied specifically on their representation that a target operability line was already well known in the art, and it was a fan operating line.

[00:21:54] Speaker 03:
But they didn't stop there.

[00:21:56] Speaker 03:
During European prosecution.

[00:21:57] Speaker 00:
Can I ask you the same question I asked Mr. Coyne?

[00:22:03] Speaker 00:
If you go back to the initial rejection of 2564, can you parse that as best can be determined sentence for me?

[00:22:10] Speaker 00:
And I may just be blind to why it actually does scan

[00:22:15] Speaker 00:
grammatically, but I'm not seeing it.

[00:22:19] Speaker 03:
I don't think it's written in the best grammar, I agree.

[00:22:23] Speaker 03:
I believe, so, what is known is that the low pressure spool is actually connected to the fan.

[00:22:31] Speaker 03:
Right.

[00:22:32] Speaker 03:
So the low pressure spool spins the fan.

[00:22:34] Speaker 00:
This is one with a gear or not a gear?

[00:22:36] Speaker 00:
Doesn't matter?

[00:22:36] Speaker 00:
Doesn't matter.

[00:22:37] Speaker 03:
Right.

[00:22:40] Speaker 03:
So, well, for the most part a

[00:22:43] Speaker 03:
We're dealing with gears here.

[00:22:45] Speaker 03:
It's the low pressure spool that is connected to the fan through the gear.

[00:22:52] Speaker 03:
So I believe what he may be saying here is that as best he understands it, it's the operation of the spinning of the low pressure spool to spin the fan is defining the fan operating line.

[00:23:08] Speaker 00:
Defining would help a little bit?

[00:23:11] Speaker 03:
Probably.

[00:23:12] Speaker 00:
I think that may be what's throwing up, is defined as a... Defined as a... Defined as a fan operating line, perhaps.

[00:23:21] Speaker 03:
But I think what's important is the statement, the sentence up at the beginning where he says that the term is not clear, because it's not described in the specification.

[00:23:31] Speaker 03:
Now, going back to the European prosecution, it's even more clear what UTC did.

[00:23:39] Speaker 02:
I mean, when you look at the specification, it does tell you in various places what that means.

[00:23:46] Speaker 03:
It doesn't, Your Honor.

[00:23:47] Speaker 03:
I respectfully disagree.

[00:23:49] Speaker 03:
There is no spot in this specification where it defines... What about the spots that they cited to?

[00:23:57] Speaker 03:
Everything that Mr. Coyne cited to here with respect to, for example, where it says a change in the effective nozzle exit area is used to move the operating line

[00:24:08] Speaker 03:
toward a stall or flutter boundary by manipulating the turbofan pressure ratio.

[00:24:14] Speaker 03:
That is exactly, exactly what Willis is disclosing here.

[00:24:20] Speaker 03:
Close the nozzle and jump to a new operating line that is closer, that has a higher pressure ratio so therefore it's closer to the stall line.

[00:24:32] Speaker 03:
There is no statement in this specification whatsoever

[00:24:36] Speaker 03:
that contains the definition that UTC says the claim terms mean.

[00:24:42] Speaker 03:
If there was, then why is it that a European examiner said that the specification doesn't contain a definition, the US examiner said it doesn't contain a definition, three technically trained administrative law judges said it's not described or defined in the specification?

[00:25:02] Speaker 02:
So now you have a circuit court judge that's looking at this at column one, which is in the pen, down around line 46.

[00:25:12] Speaker 02:
It says the target operability line provides the desired fuel consumption, engine performance, and or fan operability margin.

[00:25:23] Speaker 02:
Right.

[00:25:23] Speaker 02:
So it references the fan operability margin as one of the desired effects, but it also

[00:25:31] Speaker 02:
describes it as the desired fuel consumption.

[00:25:36] Speaker 02:
It seems to me that the fan operability margins is just an indication as you build thrust, you move up that fan line.

[00:25:46] Speaker 02:
But that the target operability line is a line that describes the best fuel consumption, engine performance, and the fan operability margin at different parts of a flight.

[00:26:00] Speaker 02:
That's where you want to be.

[00:26:01] Speaker 03:
Right, you want to move from the existing operating line to a different operating line depending on what the engine performance is, depending on where you want your engine to be.

[00:26:13] Speaker 03:
But that statement that you just read, Your Honor, is not UTC's claim construction.

[00:26:19] Speaker 03:
Their claim construction is that it's a line connecting points across different fan operating lines that optimizes fan operability margin.

[00:26:30] Speaker 03:
That is not

[00:26:32] Speaker 03:
the portion of the specification that we just looked at.

[00:26:36] Speaker 03:
The portion of the specification we just looked at says the target operability line provides desired, not optimized, fuel consumption, engine performance, and or fan operability margin.

[00:26:47] Speaker 03:
What UTC wants to do is they want to strike from that fuel consumption and engine performance.

[00:26:55] Speaker 03:
They want to change desired to optimized.

[00:27:00] Speaker 03:
And then they want to take that

[00:27:02] Speaker 03:
reworded portion of the specification and put it into their claim construction.

[00:27:06] Speaker 03:
That doesn't follow the canons of claim construction.

[00:27:10] Speaker 03:
If the definition of target operability line is that sentence, then it's undisputed that Willis discloses precisely that.

[00:27:20] Speaker 03:
It discloses being on one fan operating line at one operating condition and then moving to a second one at another operating condition in order to improve engine performance.

[00:27:32] Speaker 03:
Undisputed, that is what the board said.

[00:27:36] Speaker 03:
Again, I want to go back to the European prosecution because I think it's important.

[00:27:42] Speaker 03:
At Appendix 3284, the European Patent Office said, again, that this term target operability line is vague and unclear and leaves the reader in doubt as to the meaning of the technical features at which it refers, therefore rending the definition of the claims unclear.

[00:28:00] Speaker 03:
And what did they do in response?

[00:28:02] Speaker 03:
Again, they filed a statement where they say at Appendix 3300, we believe the term target operability line would be entirely clear to the skilled person as being a term in the art.

[00:28:14] Speaker 03:
How could that be consistent with their statement that they made up the term for the first time in this patent?

[00:28:21] Speaker 03:
For example, they submit Figure 1, which shows a typical fan map, which shows typical plots of target operability lines, the claim term.

[00:28:32] Speaker 03:
When you look at that page, which they submitted, 3309, they specifically show two target operability lines or operating lines.

[00:28:44] Speaker 03:
They equated the terms specifically in the submission.

[00:28:47] Speaker 03:
It's at Appendix 3309.

[00:28:49] Speaker 03:
And those two lines, which they called either target operability line or operating line, are exactly like the two operating lines in Willis.

[00:29:02] Speaker 03:
These statements in the file histories are unequivocal.

[00:29:06] Speaker 03:
Unequivocal.

[00:29:07] Speaker 03:
Persons of ordinary skill are entitled to rely on them in determining what the true meaning of this claim term is.

[00:29:16] Speaker 03:
The last point I want to make is that as the board found, the term optimizing fan performance is not in the specification.

[00:29:27] Speaker 03:
Its desired fan operating margin is what the specification says.

[00:29:30] Speaker 03:
And as the board said,

[00:29:32] Speaker 03:
If we put that into the claim construction, what does that mean?

[00:29:35] Speaker 03:
How does a person of ordinary skill know if they are optimizing fan operating performance so that they're in the scope of the claim or not so that they're outside the scope?

[00:29:45] Speaker 03:
Certainly, the specification, which contains two columns, doesn't provide that type of guidance.

[00:29:52] Speaker 03:
If UTC truly wanted to define the term, as they say they did, it was incumbent upon them under this Court's precedent of pacing Tech v. Garman

[00:30:02] Speaker 03:
to clearly and unambiguously put that definition into the specification, and they failed to do so.

[00:30:09] Speaker 03:
So because Willis discloses moving from one fan operating line to another fan operating line in order to improve engine performance, the board's claim construction was correct, and the board's determination that these claims were anticipated by Willis was also correct.

[00:30:28] Speaker 00:
Can I ask you a very small question in 3309?

[00:30:31] Speaker 03:
Yes.

[00:30:31] Speaker 00:
What does MN stand for?

[00:30:33] Speaker 03:
Mock.

[00:30:34] Speaker 00:
That's Mock.

[00:30:35] Speaker 00:
Mock number?

[00:30:35] Speaker 03:
Yeah, exactly.

[00:30:37] Speaker 03:
So the N is just a reference.

[00:30:39] Speaker 03:
It's a variable.

[00:30:40] Speaker 02:
OK.

[00:30:42] Speaker 02:
OK, thank you.

[00:30:43] Speaker 03:
Thank you, Your Honor.

[00:30:45] Speaker 02:
When you have three minutes.

[00:30:51] Speaker 01:
Thank you.

[00:30:51] Speaker 01:
A couple of points very briefly where I left off.

[00:30:54] Speaker 01:
With Willis, Willis

[00:30:56] Speaker 01:
Noise is not among the performance criteria.

[00:30:59] Speaker 01:
How do we know that?

[00:31:00] Speaker 01:
Because the patent tells us that specifically.

[00:31:03] Speaker 01:
At appendix of 46, column 3, lines 10 to 12, the specification expressly distinguishes performance, referred to in the question you were asking, Your Honor, from other operating parameters of the fan.

[00:31:17] Speaker 01:
And what it says is this enables desired engine operation moving toward the stall margin.

[00:31:25] Speaker 01:
This enables desired engine operation over a range of flight conditions with respect to performance and other operational parameters such as noise levels.

[00:31:35] Speaker 01:
So what the inventors are doing is distinguishing fuel efficiency and performance on one hand from other types of operational parameters, noise, for example, or other parameters.

[00:31:45] Speaker 01:
We also know that what Willis is disclosing, it may be an operating line, maybe a series of operating lines.

[00:31:52] Speaker 01:
He may be moving.

[00:31:53] Speaker 01:
from one operating line to another, but he's not doing it to reduce the operability margin.

[00:31:59] Speaker 01:
Willis specifically provides, basically in his specification, he lists a number of places where he is essentially saying what he's doing is controlling noise.

[00:32:11] Speaker 01:
At 2765, 2784, 2911, 2945,

[00:32:22] Speaker 01:
and 2972, each of these places, he makes it very clear what he's doing is controlling a constant Mach number.

[00:32:30] Speaker 01:
He wants to limit the noise the fan is generating.

[00:32:33] Speaker 01:
So what he does is he keeps the inlet speed, the amount of corrected mass flow coming into the engine at a constant.

[00:32:40] Speaker 01:
If you look at the graph my colleague identified for you, look at where those two points line up.

[00:32:45] Speaker 01:
They line up exactly where these five places I read said, around 0.75 to 0.80 Mach number

[00:32:51] Speaker 01:
It's a straight line up and down.

[00:32:53] Speaker 01:
There is no conception in Willis of optimizing, reducing, moving toward a stall or flood or boundary.

[00:33:01] Speaker 01:
What he's doing is maintaining a constant noise level, a constant mock number to limit noise.

[00:33:07] Speaker 01:
That is not the same as a target operability line, which you have to move toward the stall or flood or boundary.

[00:33:17] Speaker 01:
With respect to the question of whether this was known,

[00:33:20] Speaker 01:
Dr. Attia and Dr. Benigni both testified that this term was not known.

[00:33:28] Speaker 01:
So, for example, at 3637, paragraph 44, Dr. Benigni testified that this term, target operability line, was unique to the 513 patent.

[00:33:40] Speaker 01:
We asked Dr. Attia the same thing.

[00:33:42] Speaker 01:
Had he ever heard the term before?

[00:33:44] Speaker 01:
And he said he had not heard the word target operability line before the 513 patent.

[00:33:50] Speaker 01:
That's an appendix at 3550, page 36, lines 6 to 9.

[00:33:56] Speaker 01:
And then what is very interesting, we ask him further about that at 3553, page 39, lines 10 to 17.

[00:34:05] Speaker 01:
And what he said, that is an unusual word in, as I understand, fans and compressors.

[00:34:12] Speaker 01:
And that has been the majority of my experience is with fans and compressors.

[00:34:18] Speaker 01:
is unusual, is an unorthodox.

[00:34:20] Speaker 01:
I understand what the word means, but it's an unusual word.

[00:34:24] Speaker 01:
So GE is using all this to try to... The word target?

[00:34:27] Speaker 02:
The word target?

[00:34:28] Speaker 01:
The word target operability is the word that he's discussing.

[00:34:32] Speaker 01:
Not operability, that's not... Well, target operability line is the phrase they were discussing.

[00:34:37] Speaker 01:
It's got to be target, right?

[00:34:39] Speaker 01:
It's got to be a target, and it's got to be based on operability.

[00:34:41] Speaker 02:
That was new.

[00:34:42] Speaker 01:
That is the point.

[00:34:44] Speaker 01:
With respect to the further point that

[00:34:46] Speaker 01:
These are three alternate.

[00:34:47] Speaker 02:
What are all the other lines on the prior art reference on that short?

[00:34:53] Speaker 01:
Well, first off, there is no stall margin.

[00:34:55] Speaker 02:
No, but they're targets.

[00:34:57] Speaker 01:
Well, he doesn't show.

[00:34:58] Speaker 01:
No, there are targets because.

[00:34:59] Speaker 02:
It's defining.

[00:35:01] Speaker 02:
You've got to stay below your stall line or you're going to stall.

[00:35:07] Speaker 01:
That is absolutely true.

[00:35:09] Speaker 01:
But he is not showing you where the stall line is because he has no conception in this invention, this paper.

[00:35:16] Speaker 01:
about operability at all.

[00:35:17] Speaker 01:
What he's doing is he's maintaining these points at a constant Mach number, 0.79, to limit noise.

[00:35:24] Speaker 01:
He doesn't even show you a stall or flutter boundary on here.

[00:35:27] Speaker 01:
There's no way to determine where the stall or flutter boundary is, because that's not one of the concepts he was even dealing with in this reference.

[00:35:35] Speaker 01:
He was trying to do something completely different.

[00:35:37] Speaker 01:
And the two portions I mentioned to you previously, really, I'm sorry, Your Honor, I see that my time is over if I may just finish the sentence.

[00:35:45] Speaker 01:
This concept that these are different things, they're not different things.

[00:35:50] Speaker 01:
The portions I read you from the spec make it clear that when I move this to reduce the operability margin, I am increasing performance and fuel efficiency.

[00:36:00] Speaker 01:
They're not independent variables that the board could pick and choose among.

[00:36:03] Speaker 01:
They're the same thing.

[00:36:04] Speaker 01:
When you improve the operability margin, you improve your full efficiency and your performance.

[00:36:08] Speaker 01:
Thank you, Your Honor.

[00:36:10] Speaker 02:
We thank counsel for all the arguments this morning.

[00:36:12] Speaker 02:
This court now stands in recess.