[00:00:20] Speaker 02:
Okay, the next argued case is number 18-12-17, M.I.C.'

[00:00:26] Speaker 02:
's and partner, America, against Toshiba Corporation.

[00:00:32] Speaker 00:
May I please escort counsel?

[00:00:47] Speaker 00:
At issue below, we're claiming construction involving two patents.

[00:00:50] Speaker 00:
and interpretation of two contracts and an issue regarding damages.

[00:00:56] Speaker 00:
With respect to the 589 patent summary judgment, the district court further limited the term operative semiconductor in the 589 patent to only the material located within the boundaries of the TFT.

[00:01:08] Speaker 00:
This error is based on both improper locational limitations and functional limitations.

[00:01:13] Speaker 00:
Operative semiconductor is not limited to the function performed by the material.

[00:01:18] Speaker 00:
Just like other claimed layers,

[00:01:20] Speaker 00:
Operative semiconductor refers to the characteristic capabilities of the material formed in the recited step of the claimed method.

[00:01:27] Speaker 06:
For example, the material... You agree that operative has to be given some meaning, right?

[00:01:33] Speaker 00:
Oh, absolutely.

[00:01:34] Speaker 00:
It has to.

[00:01:35] Speaker 06:
So what's your conception of operative for operative semiconductor, other than something that helps operate the TFT?

[00:01:43] Speaker 00:
It is a material which is capable of operating in a TFT

[00:01:49] Speaker 00:
to control the flow of electrons through control between the source and drain electrodes.

[00:01:53] Speaker 00:
So it has to have that capability.

[00:01:56] Speaker 06:
So it has to be the part of the semiconductor that's between the source and drain electrodes?

[00:02:01] Speaker 06:
Is that what I heard you say?

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

[00:02:02] Speaker 00:
Well, that's what the district court limited it to.

[00:02:04] Speaker 00:
But remember, this was a method claim.

[00:02:06] Speaker 00:
So operative semiconductor is a layer that's put down over the entire area where the array is going to be.

[00:02:12] Speaker 00:
Like gate insulating film,

[00:02:14] Speaker 00:
is gate insulating film.

[00:02:15] Speaker 00:
It's put across the entire layer, but it only insulates actually where the gate electrode is.

[00:02:20] Speaker 00:
And operative semiconductor is not limited to what's in the TFT, because we look at column three of the patent.

[00:02:26] Speaker 00:
It talks about forming operative semiconductor at the overlap of the bus lines.

[00:02:35] Speaker 00:
That's not where a TFT is.

[00:02:36] Speaker 00:
And even though it continues to have the capability,

[00:02:40] Speaker 00:
There is no switching that takes place.

[00:02:41] Speaker 00:
It doesn't operate.

[00:02:42] Speaker 00:
And the claim term is not operating.

[00:02:45] Speaker 00:
It's operative, i.e.

[00:02:47] Speaker 00:
capable of being operated.

[00:02:50] Speaker 00:
The court's locational restriction of operative semiconductor is, as I noted, bound as being with inside the TFT, the boundary of the TFT, is contradicted by the specifications expressed disclosure.

[00:03:05] Speaker 00:
If the court were to look at the yellow box on page 13 of our brief,

[00:03:10] Speaker 00:
which is a representation of Fig 4, the yellow box is where the district court limited operative semiconductor.

[00:03:18] Speaker 00:
The specifications and drawings describe and show at least two locations where operative semiconductors formed, both of which are outside the yellow boundaries of that box.

[00:03:28] Speaker 00:
The red box is shown, which is actually referred to in column 5 as 6, is expressly referred to in the specification as operative semiconductor.

[00:03:37] Speaker 06:
And the appellees that they're briefed... There's a question whether, you know, these figures are tightly drawn to scale.

[00:03:43] Speaker 06:
Typically, in patent law, we say that figures aren't necessarily presumed to be drawn to scale.

[00:03:50] Speaker 00:
That's correct, Your Honor, but this isn't a question of saying that 10% of the operative semiconductor is outside.

[00:03:55] Speaker 00:
We're not looking for some type of quantitative analysis.

[00:03:57] Speaker 00:
This is really qualitative.

[00:03:59] Speaker 00:
And again, the specification indicates

[00:04:01] Speaker 00:
that operative semiconductor can be in places outside of the boundaries of the TFT, i.e.

[00:04:06] Speaker 00:
over at the overlap of the bus lines.

[00:04:09] Speaker 06:
Claim 9 talks... But what is it in the specification that tells us that the TFT can't be over the intersection of the bus lines?

[00:04:19] Speaker 00:
There's absolutely no teaching whatsoever in the patent that the TFT is to be moved over the intersection of the bus lines.

[00:04:25] Speaker 06:
But there isn't anything in the specification likewise that says something to the contrary.

[00:04:31] Speaker 00:
Well, that's true, Your Honor, but there's actually no teaching.

[00:04:34] Speaker 00:
And the thing is that if we actually read through the claim limitations, we read through the steps of the claim, the overlap doesn't take place until later in the claim.

[00:04:42] Speaker 00:
The operative semiconductor layer is put down.

[00:04:45] Speaker 00:
And then in different positions, additional steps are taken to build up the DFT.

[00:04:50] Speaker 00:
The overlap between the source bus line and the drain bus line, which is referenced in Figure 4, that doesn't take place.

[00:04:58] Speaker 00:
There is no overlap.

[00:04:59] Speaker 00:
The operative semiconductor has been put down before that overlap takes place.

[00:05:03] Speaker 00:
So this notion that somehow that there's some teaching or suggestion in the patent, there is none.

[00:05:09] Speaker 00:
And to do with the district court judge, which was to limit the operative semiconductor to only the material within the TFT, would actually read out every disclosed embodiment, which could never be the proper claim.

[00:05:24] Speaker 00:
Well, not never, but only under very unusual circumstances could that be the right claim construction.

[00:05:35] Speaker 00:
And in fact, when the district court limited operative semiconductor to only the material inside the four lines of the TFT, it then had to rewrite claim four.

[00:05:46] Speaker 00:
Because claim four says form operative semiconductor, which was a claim element in claim one, as was TFT.

[00:05:54] Speaker 00:
It says form claim operative semiconductor at the overlap, which is utterly consistent with the teaching of the specification and supported by the spec at column three.

[00:06:05] Speaker 00:
But in order to reconcile this claim construction, the district court then had to take the term operative semiconductor, the limitation, out of that claim and substitute the thin film transistor, the TFT, where it said the operative semiconductor was limited.

[00:06:21] Speaker 00:
And just to give you one other reference, during the related 589 appeal, IPR, the appellants indicated that operative semiconductor was a material

[00:06:32] Speaker 00:
being made of amorphous silicon and endoped amorphous silicon.

[00:06:35] Speaker 00:
There was absolutely no recitation, no limitation whatsoever that it had to be only in the TFT and had to function as a switch.

[00:06:42] Speaker 00:
Because as I said earlier, the specification discloses areas where it wouldn't function as a switch.

[00:06:49] Speaker 00:
With respect to the 190 patent, the district court construed channel and anomic contact layer and a semiconductor layer to have its plain and ordinary meaning.

[00:06:59] Speaker 00:
Using the plain and ordinary meaning,

[00:07:01] Speaker 00:
the appellant's established infringement of all accused devices.

[00:07:05] Speaker 00:
These accused devices have the identical priori structures shown in Figure 15 and are specifically identified by the examiner as a channel and an omicontact layer and a semiconductor layer.

[00:07:16] Speaker 00:
And as explained in pages 19 and 20 of the Gray brief, in summary judgment, the court restricted the plain and ordinary meaning of in to require physical inclusion within the material of both the semiconductor layer and the omicontact layer.

[00:07:30] Speaker 00:
The court's restricted interpretation is contradicted by the claim meaning of the terms, the specification, the prosecution history, and the understanding of those.

[00:07:41] Speaker 00:
You think it's contradicted by the plain meaning?

[00:07:43] Speaker 05:
Yes, Your Honor.

[00:07:44] Speaker 05:
I guess I came in here thinking everything except the plain meaning favored you maybe even to such an extent that it's worth overriding the plain meaning.

[00:07:55] Speaker 05:
But the plain meaning?

[00:07:56] Speaker 05:
The X and Y and yet in you think has to mean two different things.

[00:08:01] Speaker 00:
Well, first of all, in is a preposition, right?

[00:08:04] Speaker 00:
Whenever we look at the word in, it's a plain meaning.

[00:08:07] Speaker 00:
It includes inclusion, position, or location.

[00:08:09] Speaker 00:
We don't just parse the meaning of the word in.

[00:08:12] Speaker 00:
If I was to say cream and coffee in a cup, your honor would know that the cream is in the coffee in one way and in the cup in another way.

[00:08:22] Speaker 00:
When used locationally,

[00:08:23] Speaker 00:
The specific nature of the physical relationship is always dependent on context.

[00:08:28] Speaker 00:
And so if we go to the specification, the specification makes clear that this claim phrase means that the channels within the limits of the only contact layer from the inner left edge to the inner right edge at column 2 is line 8 through 13.

[00:08:43] Speaker 00:
And it also recites virtually the same thing at column 6, lines 4 through 10.

[00:08:47] Speaker 06:
And one of the things that... I'm sorry, can you just give me your final answer on what your translation is of a channel in an ohmic contact layer and a semiconductor layer?

[00:09:00] Speaker 06:
Because when I've read through the papers, I have seen some variance in how you've articulated it.

[00:09:07] Speaker 06:
So what's the final answer?

[00:09:09] Speaker 00:
Without a lifeline.

[00:09:11] Speaker 00:
The answer is, Judge, it's a channel included within the limits of the semiconductor layer.

[00:09:15] Speaker 00:
and is located within the limits of the OMIC contact layer.

[00:09:19] Speaker 00:
That's the final answer.

[00:09:20] Speaker 06:
OK, because I thought now it sounds like you're using the word in the same way for both the OMIC contact layer and the semiconductor layer.

[00:09:32] Speaker 06:
Whereas I thought part of your argument has always been that the word in in the claim limitation means something different with respect to the OMIC contact layer

[00:09:45] Speaker 06:
and vis-a-vis the semiconductor layer.

[00:09:48] Speaker 00:
It does for this cabinet, your honor.

[00:09:50] Speaker 00:
What it doesn't mean is it doesn't mean in both instances physically included within material of.

[00:09:59] Speaker 00:
All of this kind of machinations come about as a result of the fact.

[00:10:02] Speaker 06:
But I thought you agreed that's true, that it means that with respect to the semiconductor layer.

[00:10:08] Speaker 00:
It means that with respect to the semiconductor because the position of the channel

[00:10:12] Speaker 00:
is defined as within the limits of the upper and lower end of the semiconductor.

[00:10:17] Speaker 00:
So what happens to be, when we're talking about in the semiconductor, it's still positional.

[00:10:21] Speaker 00:
Although that position happens to be within the material of the semiconductor.

[00:10:27] Speaker 00:
It's also positional and locational because it has to do with where it is vis-a-vis the only contact layer.

[00:10:34] Speaker 00:
And if you're on a concerned page.

[00:10:36] Speaker 06:
Can I just explain something to you that I was thinking last night?

[00:10:40] Speaker 06:
When my house,

[00:10:42] Speaker 06:
my family room is directly above my garage.

[00:10:46] Speaker 06:
My garage is in the basement, family room is on the first floor.

[00:10:49] Speaker 00:
Correct.

[00:10:50] Speaker 06:
So when I'm sitting in my family room watching TV, I couldn't possibly, no one would say I'm in my family room and I'm in my garage at the same time.

[00:11:03] Speaker 06:
Nobody would say that.

[00:11:04] Speaker 00:
That's true because remember this is a locational preposition, okay?

[00:11:09] Speaker 00:
But if I were to say, Your Honor, you are in the reflecting pool in DC, I know that you're immersed within the water of the pool, but you're in the town of DC.

[00:11:19] Speaker 00:
So it's always kind of contextual.

[00:11:21] Speaker 00:
And I think the best way to look at this, Your Honor, is if during the prosecution history, the way this came up was that the claim was originally written that it was a channel in a semiconductor layer.

[00:11:33] Speaker 00:
All right?

[00:11:33] Speaker 00:
And during the prosecution, the examiner said, well, there's this moral reference

[00:11:38] Speaker 00:
that discloses a channel in a semiconductor layer.

[00:11:41] Speaker 00:
Because that's recognized to be a layer of the semiconductor layer between the source and drain electrodes.

[00:11:48] Speaker 00:
And if you look at the figures on page 24, and if you look at where the channel is in Moira, it extends beyond the inner limits of the ohmic contact layer.

[00:11:58] Speaker 00:
And so to distinguish over Moira, to show that we have the configuration of figure 15,

[00:12:06] Speaker 00:
we added an anomic contact layer, which means, and we added it in accordance to the way it's specifically described in column two of the patent, where it says this amorphous silicon layer, which is the... I thought the primary reference had always been the admitted prior art.

[00:12:21] Speaker 00:
Well, that was one of it, but then the examiner comes up with this mora reference.

[00:12:25] Speaker 00:
Remember, Judge,

[00:12:27] Speaker 00:
The invention here has to do with what the channel looks like at the end.

[00:12:29] Speaker 00:
It's kind of got a dog bone at the end.

[00:12:31] Speaker 00:
What we're talking about is if you took a cross section of the channel in the middle, that's a prior art structure.

[00:12:35] Speaker 00:
That's the way channels have looked at from the beginning.

[00:12:39] Speaker 00:
And so in an effort to try it, we argued that Moira doesn't teach the dog bone.

[00:12:44] Speaker 00:
But in an effort to try and distinguish it and get rid of it in other ways, we said, look, Moira doesn't have a channel in an omic contact layer because its channel extends beyond the inner limits of the omic contact layer.

[00:12:56] Speaker 00:
which contradicts column two and column six of the patent.

[00:13:01] Speaker 00:
And if you look at the figure, you can see that the channel, it does have a channel, but it extends beyond the inner limits.

[00:13:07] Speaker 05:
And we said... I'm sorry, this is Moira, figure nine C?

[00:13:10] Speaker 05:
Yes, Your Honor.

[00:13:11] Speaker 05:
Which is not actually in the joint appendix except it's in your expert.

[00:13:15] Speaker 05:
It was in our expert, yes, Your Honor.

[00:13:17] Speaker 05:
But you didn't even give us Moira to look at.

[00:13:20] Speaker 00:
If it is, Your Honor, I couldn't point to you.

[00:13:22] Speaker 00:
I don't remember seeing it and studying it for the hearing.

[00:13:24] Speaker 00:
So the odds are no.

[00:13:26] Speaker 00:
But the only dispute was whether or not Moira taught a channel in a normal contact level.

[00:13:36] Speaker 00:
And in fact, if you look at page 9183, and you look at our specific comments to distinguish Moira

[00:13:52] Speaker 00:
about halfway down the first part of turning to the real ejection says claims 1, 17, and 18 specify that each of the TFTs have a channel in anomic contact layer and a semiconductor layer.

[00:14:05] Speaker 00:
And if we go all the way down to the bottom part of that paragraph, the next part about having a channel length larger, that has to do with the dog bone structure that we're not talking about here.

[00:14:13] Speaker 00:
It says, Mora does not teach a channel formed in anomic contact layer and a semiconductor layer, as we pointed to figure 2.

[00:14:21] Speaker 00:
I'm sorry, figure two of what?

[00:14:22] Speaker 05:
Figure two of our patent.

[00:14:24] Speaker 05:
Your patent.

[00:14:24] Speaker 00:
OK.

[00:14:25] Speaker 05:
So that word formed in suggests something rather closer to what I think Judge Andrews thought than what you're suggesting of merely being within the boundaries of, if you're looking at it from top down.

[00:14:42] Speaker 00:
Well, Judge, it's not that I'm going to suggest.

[00:14:44] Speaker 05:
Formed in sounds like made of the material of.

[00:14:51] Speaker 00:
That's one suggestion, but there's no clear disavowal that requires it to be made of the material.

[00:14:56] Speaker 00:
And in fact, both experts, and this is in our brief, all the experts agreed that the material can't be both, the channel can't be both in the semiconductor layer and in the ohmic contact layer.

[00:15:06] Speaker 04:
And by in, you mean?

[00:15:08] Speaker 00:
Physically located.

[00:15:10] Speaker 04:
Made of the material.

[00:15:11] Speaker 00:
Correct.

[00:15:11] Speaker 00:
Because remember, the ohmic contact layer, if you look at that picture, is actually a conductor.

[00:15:15] Speaker 00:
It's because those are the two electrodes.

[00:15:17] Speaker 00:
And so if the ohmic contact layer is, if there's a channel in the ohmic contact layer,

[00:15:21] Speaker 00:
The switch is never going to turn off.

[00:15:22] Speaker 00:
It's always going to be on.

[00:15:23] Speaker 00:
It doesn't work.

[00:15:25] Speaker 00:
When they make this process, they have to eat through the ohmic contact layer down to just at the channel layer.

[00:15:32] Speaker 00:
And so when they talk about in the ohmic contact layer, all the experts agree that there can't be any channel.

[00:15:40] Speaker 00:
There can't be any flow of electrons between two parts of the ohmic contact layer because it wouldn't work.

[00:15:45] Speaker 00:
And again, this thing about formed, if you look at column two, which is what the examiner looked at in response to our

[00:15:51] Speaker 00:
Our amendment, the examiner on 9189 comes back.

[00:15:55] Speaker 00:
I'm sorry, column 2 of your patent.

[00:15:58] Speaker 00:
Of our patent.

[00:15:59] Speaker 00:
It says column 2, lines 8 through 13.

[00:16:04] Speaker 00:
It says the amorphous silicon layer 224 and the thin film transistor 230 includes a channel region 234 which overlies the gate electrode 222 and extends from the inner edge

[00:16:19] Speaker 00:
of the ohmic contact 233A and underlying the drain electrode to the inner edge of the ohmic contact 233B underlying the source electrode.

[00:16:31] Speaker 00:
And when the examiner, when we added in an ohmic contact layer, the examiner came back on 9189 and said, well, all you've done is described the configuration shown in figure 15, and he used the exact same numbers, element references, from column two.

[00:16:49] Speaker 00:
So the examiner knew that inanomic contact layer is a positional.

[00:16:53] Speaker 00:
I mean, in is given its broad meaning.

[00:16:56] Speaker 06:
PTAB wasn't convinced of this, right?

[00:16:58] Speaker 06:
The PTAB denied a request for an IPR on this patent because it concluded it couldn't make heads or tails of what these claim terms mean.

[00:17:09] Speaker 06:
So rather than institute and decide the prior art patentability question, it chose

[00:17:18] Speaker 06:
It refused to speculate what the meaning of the claim was, and then denied institution.

[00:17:25] Speaker 00:
But there was no dispute about this aspect of the claim.

[00:17:27] Speaker 00:
There was no claim construction dispute for the IPR about this aspect of the claim, this structure.

[00:17:33] Speaker 00:
There was a dispute.

[00:17:34] Speaker 06:
There was, at A11-8283, where they quoted this very claim limitation.

[00:17:40] Speaker 06:
They saw what you were proposing and what the petitioner was proposing and said, neither of them makes sense.

[00:17:48] Speaker 06:
And then it had a long footnote explaining the prosecution history that you're pointing to and said, it's not clear to us that it requires a certain understanding.

[00:18:00] Speaker 00:
But again, one of the things that it pointed to was the fact that during the prosecution, the claim construction had put in process limitations about etched op versus channel etching.

[00:18:11] Speaker 00:
And the PTAB said, well, there's no teaching about that.

[00:18:13] Speaker 00:
So the PTAB, the claim construction issue before the PTAB

[00:18:18] Speaker 00:
is whether or not this patent, these claims are limited to channel edge TFT as opposed to more, which was edge stop.

[00:18:25] Speaker 00:
And the PTAB just refused to weigh in.

[00:18:26] Speaker 00:
There wasn't a dispute like there was in this one.

[00:18:29] Speaker 00:
And in fact, if you look at page 1680, and that's operative semiconductor, wrong one.

[00:18:34] Speaker 00:
I'm sorry.

[00:18:34] Speaker 00:
So the point is that in is to be given a broad reading, is plain and ordinary meaning.

[00:18:41] Speaker 00:
There's nothing in the specification.

[00:18:43] Speaker 00:
It's their burden to point to something in the specification.

[00:18:46] Speaker 00:
that dictates that the material must inhabit the material of the semiconductor layer.

[00:18:55] Speaker 00:
There's no teaching of that in the specification.

[00:18:57] Speaker 00:
Specification uses the word in broadly.

[00:19:00] Speaker 00:
There's no citation upon which they rely.

[00:19:02] Speaker 00:
And in fact, the district court actually, in its opinion, if you read the next layer, the next sentence, which actually wasn't in the part of the opinion, it goes and it quotes that language that I've already given your honors about how it extends from

[00:19:16] Speaker 00:
the right edge of the one semiconductor layer to the left edge of the other.

[00:19:21] Speaker 00:
So the fact is that N should be given its broad and plain meaning.

[00:19:25] Speaker 00:
It's not like Chef America.

[00:19:26] Speaker 00:
There's no irreconcilable problem.

[00:19:28] Speaker 00:
The only thing that's irreconcilable is if we take the position of the appellees, that N must be physically included within the material law.

[00:19:36] Speaker 00:
But there's no support for doing that, and they don't point to N. So.

[00:19:43] Speaker 02:
Let's hear from the other side.

[00:19:44] Speaker 02:
Thank you, Your Honor.

[00:19:58] Speaker 02:
Mr. Haslam, you've divided the issues with your colleague?

[00:20:01] Speaker 02:
Yes.

[00:20:01] Speaker 02:
What are you going to tell us?

[00:20:03] Speaker 01:
I will be arguing the 190 and the 589 issues.

[00:20:07] Speaker 01:
I will be arguing the Toshiba license issues on behalf of Toshiba so that we only have two lawyers instead of three lawyers jumping up and down.

[00:20:15] Speaker 01:
So I'll address the 589 and the 190 now.

[00:20:18] Speaker 01:
And I'll sit down and let counsel deal with the other two license issues.

[00:20:22] Speaker 01:
And I'll argue one of those.

[00:20:25] Speaker 02:
OK.

[00:20:25] Speaker 02:
Proceed.

[00:20:27] Speaker 01:
OK.

[00:20:27] Speaker 01:
Starting with the 589, I think what the fundamental problem that the appellants have is that when you look at the specification, the specification does refer to a silicon film.

[00:20:51] Speaker 01:
However, the specification is very clear when it talks about what the operative semiconductor is.

[00:20:57] Speaker 01:
that film after it has been patterned.

[00:21:01] Speaker 01:
And when it has been patterned, the specification talks about in column, I think it's column six, as well as, I think it back, yeah, it's column five.

[00:21:19] Speaker 01:
It says that after patterning, that forms a part of the-

[00:21:26] Speaker 01:
What line are you on?

[00:21:28] Speaker 01:
I'm sorry, line 55 through, I'm going to refer to 55 through 67.

[00:21:33] Speaker 01:
And it's talking about this process step after you've laid down the silicon film and you now mask it and then you etch.

[00:21:43] Speaker 01:
And what it says is the pattern photoresist film, and this is 58 to 60, 20B, serves as a mask performing an operative device of the TFT.

[00:21:55] Speaker 01:
It then goes on to the next paragraph in talking about figure 7F.

[00:22:02] Speaker 01:
It talks about the amorphous silicon film, which is the film that was laid down across the entire device.

[00:22:07] Speaker 01:
And it says, once that's patterned and washed, it then goes on to say in line 64, thus there is formed the patterned amorphous silicon film, constituting a major part of the TFT.

[00:22:23] Speaker 01:
The thus amorphous silicon film corresponds to the amorphous silicon pattern 6 illustrated in 4.

[00:22:31] Speaker 01:
And that is the patterned silicon film.

[00:22:33] Speaker 01:
It is not the entire film laid down.

[00:22:36] Speaker 01:
If you look at claim 1, it distinguishes between films that are laid down completely, such as the substrate or the dielectric or the protection film at the end, from those structures

[00:22:51] Speaker 01:
which are formed, the gate electrode, the operative semiconductor, and the source and drain.

[00:22:58] Speaker 01:
Now, I want to just go back and remind the court, Claim 1 was disclaimed.

[00:23:02] Speaker 01:
Claims 2, 3, 5, and 6 were held unpatentable by the PTAB and this court affirmed by virtue of Rule 36 motion.

[00:23:12] Speaker 01:
So the only claim involved is Claim 4, which is dependent on Claim 1.

[00:23:17] Speaker 01:
And its only distinction is where

[00:23:21] Speaker 01:
parties agree to that, where is the location of the operative semiconductor?

[00:23:27] Speaker 01:
When you look at the claim, I believe that the specification reasonably clearly says that the operative semiconductor is the part of the semiconductor which in fact allows the transistor to operate.

[00:23:42] Speaker 06:
How many times in this specification does it actually use the term operative semiconductor?

[00:23:48] Speaker 01:
There's one at the top of column five.

[00:23:51] Speaker 01:
There's one at the top of column five.

[00:23:52] Speaker 01:
There's one at the top of column three.

[00:23:55] Speaker 01:
There's one at the bottom of column three at line 56.

[00:23:58] Speaker 01:
I believe that there's similar discussions when it talks about the second embodiment.

[00:24:05] Speaker 06:
But when it comes to usage of that coin term in reference to any of the figures, is the top of column five all we have?

[00:24:19] Speaker 06:
when it's discussing figure five.

[00:24:22] Speaker 01:
I think you have a similar discussion when it talks about figure 11 in the second embodiment.

[00:24:38] Speaker 01:
It's column seven, line 39 and 40, an operative semiconductor film six formed on a silicon nitride film, which again is referring to the pattern

[00:24:48] Speaker 01:
island of silicon, not the entire film.

[00:24:54] Speaker 01:
But if we look at the claim, we get additional help on what the claim, what the patentee and what the claim means about the operative semiconductor.

[00:25:03] Speaker 01:
And that is that... Can I just ask?

[00:25:05] Speaker 05:
Yes.

[00:25:07] Speaker 05:
So when the top of column five points to operative semiconductor film six and you look back at figure five for six, it appears to be, what is the

[00:25:17] Speaker 05:
What is that pointing to?

[00:25:30] Speaker 01:
If you look at figure five, it is, if you see element one, which is the gate electrode, if you see next to that is element six, which is pointing up to a little U-shaped thing.

[00:25:46] Speaker 01:
It's the U-shaped

[00:25:47] Speaker 01:
It's the rectangle with a bite taken out of it at the top.

[00:25:52] Speaker 01:
And that is what it's referring to as the operative semiconductor.

[00:25:58] Speaker 06:
And as you can see... What the appellant would say to us is if you look at the U-shaped item in comparison to the gate electrode one, the U-shaped item looks bigger.

[00:26:12] Speaker 06:
in terms of it covers more real estate compared to Gate Electra of Mourne.

[00:26:19] Speaker 01:
If you were to ascribe dimensional characteristics to these drawings, which I don't think necessarily this Court has said you can't do that for non-scale drawings which are not described as being dimensional, but it does overlay the Gate Electra.

[00:26:36] Speaker 05:
Does the claim language require that it over

[00:26:42] Speaker 05:
or lay the gate electrode and not be anywhere else or simply that it has to overlie the gate electrode even if it also extends beyond?

[00:26:56] Speaker 01:
The operative semiconductor has to be a part of the TFT, which is the function of claim one.

[00:27:05] Speaker 01:
It is to make thin-film transistors in an array.

[00:27:09] Speaker 01:
It is not talking about making something that is not an operative semiconductor.

[00:27:15] Speaker 05:
I think I'm not hearing an answer to the question that was in my mind, whatever might have come out of my mouth.

[00:27:22] Speaker 05:
So why does it matter even if this U-shaped thing extends both to the left and the right of the gate electrode?

[00:27:31] Speaker 05:
It does overlay it, but it may also extend beyond it.

[00:27:35] Speaker 05:
What does claim four require?

[00:27:38] Speaker 01:
Claim four requires that the operative semiconductor, which the court said overlies the gate, but it also connects and contacts the source and drain.

[00:27:56] Speaker 01:
And that's clear from the claim, which says that the source and drain... Let me ask the question this way.

[00:28:03] Speaker 05:
To the extent that

[00:28:06] Speaker 05:
that your friend on the other side is arguing there's a problem with the claim construction if the U-shaped thing extends beyond the gate electrode.

[00:28:16] Speaker 05:
Would it not be fair to say claim four doesn't care whether it's formed only where the gate overlaps?

[00:28:25] Speaker 05:
It cares only about whether it is formed there.

[00:28:29] Speaker 05:
Whether it's formed elsewhere is of no consequence.

[00:28:33] Speaker 01:
That's their argument, but to say that it's... Is that their argument?

[00:28:37] Speaker 05:
I guess I truly may be deeply confused.

[00:28:39] Speaker 05:
I thought I was answering an argument that they were making.

[00:28:43] Speaker 01:
No, I believe what their argument, as I understand it is, and it's shifted over time, is that as long as you have an operative semiconductor in a TFT somewhere, if there is a silicon film at the overlap of the source and drain,

[00:29:02] Speaker 01:
Even if that location, it acts as an insulator and not as part of a operative device or as part of the TFT, that that falls within the scope of the claim.

[00:29:18] Speaker 01:
That's their argument.

[00:29:20] Speaker 01:
Because their infringement is, yes, we agree the TFT is not at the location of the overlap.

[00:29:27] Speaker 05:
You're also supposed to talk about 190.

[00:29:29] Speaker 05:
Is that right?

[00:29:30] Speaker 05:
So do you agree that the claim construction adopted below requires the impossible or the nonsensical?

[00:29:40] Speaker 05:
Yes.

[00:29:42] Speaker 05:
Yes, that is your position.

[00:29:43] Speaker 05:
Isn't that quite extraordinary?

[00:29:45] Speaker 05:
Isn't that the kind of claim construction we would basically turn over every rock we could find to find a way of avoiding?

[00:29:54] Speaker 05:
Because why would a patentee write something that is as stupid as that?

[00:30:01] Speaker 01:
It lines up with Chef America.

[00:30:04] Speaker 01:
If you look at the original claim and the specification, there was no dispute, and there was no dispute at the P tab, that the channel, and there's a definition of channel, the claim construction of channel, that it is in the semiconductor layer that is not challenged on appeal.

[00:30:21] Speaker 05:
But to use the word in as part of the claim construction is truly unhelpful.

[00:30:28] Speaker 05:
What you mean is, is made of the material of?

[00:30:31] Speaker 01:
It is located in, physically located in.

[00:30:34] Speaker 05:
Now you're just back to a term that I don't yet understand.

[00:30:37] Speaker 05:
Does in for the semiconductor mean it is made of the material of?

[00:30:42] Speaker 06:
Yes, it is.

[00:30:44] Speaker 06:
But that's the construction of channel that the district court came up with that's not on appeal here.

[00:30:50] Speaker 06:
Right.

[00:30:50] Speaker 06:
And that says that the- Channel, a portion of the semiconductor layer between the source and drain electrode.

[00:30:55] Speaker 06:
Right.

[00:30:56] Speaker 01:
That's what is the channel.

[00:30:58] Speaker 01:
and the specification says that that channel is in the semiconductor layer.

[00:31:03] Speaker 01:
It doesn't say that definition.

[00:31:05] Speaker 01:
It doesn't say it's in the ohmic contact layer.

[00:31:07] Speaker 01:
And all the portions of the specification that Appellant points to talks about the channel being in the semiconductor layer and between the edges of the source and drain or extends from the source to the drain.

[00:31:24] Speaker 01:
And that's significant because in Chef America,

[00:31:28] Speaker 01:
The court, as part of this decision where it said, yes, this is impossible, but that's nonetheless what we're left with, found that during prosecution, when they got the rejection, they had a choice.

[00:31:45] Speaker 01:
They could say heat to the temperature, or based on an example in the patent, they could have said heat at the temperature.

[00:31:56] Speaker 01:
And they specifically chose HEAT 2.

[00:31:59] Speaker 01:
And the court said they had a choice.

[00:32:02] Speaker 01:
The specification, like the specification here, has a way to describe the channel with respect to the OMIC contact layers.

[00:32:10] Speaker 01:
But in Chef America, just as here, they chose IN.

[00:32:16] Speaker 01:
Without telling anyone during the prosecution, the IN now meant something different.

[00:32:22] Speaker 01:
It didn't mean the semiconductor layer.

[00:32:25] Speaker 01:
or being physically in the semiconductor layer.

[00:32:28] Speaker 05:
Why would a skilled artisan have the thought that they were claiming something that everybody recognizes to be nonsensical?

[00:32:38] Speaker 05:
There wasn't anything nonsensical about Chef America.

[00:32:41] Speaker 05:
So that case is different on that ground.

[00:32:44] Speaker 01:
Well, what was nonsensical is because you don't heat the dough to 400 degrees, you get a charcoal briquette.

[00:32:50] Speaker 01:
That was the whole purpose, I think, of the finding in Chef America.

[00:32:54] Speaker 01:
that this claim didn't make sense.

[00:32:57] Speaker 01:
It was nonsensical, because what you wanted to do was to heat the oven to 400, whatever the temperature was, so that you could make whatever it was that they were baking into a particular thing.

[00:33:10] Speaker 01:
But the court said, we look at the language.

[00:33:13] Speaker 01:
The language says it's plain and ordinary, meaning I believe of in and supported by the definition of channel.

[00:33:19] Speaker 01:
It then went to the prosecution history and said, you had a choice.

[00:33:22] Speaker 01:
And there's language in the spec here, and there was language in the spec there.

[00:33:26] Speaker 01:
You could heat it to or heat it at.

[00:33:28] Speaker 01:
You intentionally chose the wrong one.

[00:33:30] Speaker 01:
And then they dealt with the expert testimony and said, the expert came in and said, well, this is what it means.

[00:33:36] Speaker 01:
And they said, well, but the expert's not dealing with what the words in the claim actually say.

[00:33:42] Speaker 01:
And that's the same thing here.

[00:33:44] Speaker 01:
Yes, it's impossible.

[00:33:47] Speaker 01:
They even said it was impossible during claim construction.

[00:33:51] Speaker 01:
But that's what the specification says.

[00:33:53] Speaker 01:
And when they dealt with it in the prosecution history, they did not clearly say, we now mean in to mean something different.

[00:34:02] Speaker 01:
And until argument today, their argument was in the same place, in the same claim, meant two different things.

[00:34:11] Speaker 01:
One was physically in, and the other was bounded by.

[00:34:14] Speaker 01:
And I don't believe there's any case that this court has held where the same word in the same place

[00:34:22] Speaker 01:
in the ohmic contact layer and in the semiconductor layer, that word in the same place in the same plane means two different things.

[00:34:33] Speaker 01:
Court has any other questions?

[00:34:34] Speaker 02:
Let's hear from Mr. Roosevelt.

[00:34:47] Speaker 03:
May it please the court?

[00:34:48] Speaker 03:
I'm prepared to address today two issues on behalf of FUNAI.

[00:34:53] Speaker 03:
The first is FUNAI's defense based on the Panasonic LCD license agreement.

[00:34:58] Speaker 03:
The district court correctly found that modules purchased by FUNAI from Panasonic LCD were covered by a license and were therefore not infringing.

[00:35:06] Speaker 03:
The second issue is the Daubert question, the exclusion of damages testimony by Mr. Hampton, the economics expert for Mikes,

[00:35:15] Speaker 03:
the district court did not abuse its discretion in excluding that testimony.

[00:35:19] Speaker 03:
The court correctly found that Hampton failed to apportion damages to take into account the infringing features of the product, as contrasted with the conventional non-infringing features.

[00:35:31] Speaker 03:
And the court also found that he derived his royalty rate from an unreliable starting point, namely a license offer made by Mike's on the eve of litigation that covered 364 patents

[00:35:45] Speaker 03:
and that Funai rejected and never accepted.

[00:35:48] Speaker 03:
So I realize we haven't touched on these yet, and I'm happy to take either one or both.

[00:35:54] Speaker 05:
So sometimes in deciding whether a kind of evidence is insufficient, one asks, what better evidence might there have been?

[00:36:06] Speaker 05:
So what is your view about what better evidence there might have been on apportionment?

[00:36:14] Speaker 03:
Well, I think that apportionment was done, for example, by both of the economics experts on our side.

[00:36:20] Speaker 03:
The patented issue in this particular question is the 927 patent, which covers the frame that holds the LCD module, which is essentially two pieces of plastic that sandwich the LCD panel in between them.

[00:36:38] Speaker 03:
And the supposed improvement of the patent is that there are

[00:36:43] Speaker 03:
protrusions and depressions in the plastic that essentially allowed the two pieces of the frame to snap together rather than being fastened together with screws or adhesives or other fasteners.

[00:36:53] Speaker 03:
And so there is an obligation under this court's cases to distinguish between the inventive features of the frame and the conventional features of the frame.

[00:37:06] Speaker 03:
They didn't come up with the idea of the plastic frame itself.

[00:37:10] Speaker 03:
So we have

[00:37:10] Speaker 03:
Both of our damages experts did things like looking at the cost savings associated with screws that don't have to be used, or glues, or labor time that's easier to snap together.

[00:37:23] Speaker 03:
There are different ways one can look at that.

[00:37:26] Speaker 03:
They also looked at the profitability of this particular component as a part of the overall price of the television.

[00:37:34] Speaker 03:
at least one of them considered other licenses of sort of similar technology.

[00:37:39] Speaker 03:
So I think there are a number of different starting points one could take.

[00:37:41] Speaker 05:
What do you mean by look at the profitability of this component as part of the television?

[00:37:46] Speaker 03:
Well, I think that there were, well, I think that there were analyses done, if you consider, for example, Toshiba's expert Mr. Lewis, as his starting point, he took, you know, you could start, you could come up with your starting point by looking at the cost of a design around, which was the screw savings.

[00:38:03] Speaker 03:
You could come up with market comparables, which were essentially other licenses that exist in the universe for this type of technology.

[00:38:10] Speaker 03:
And he talked about the income, essentially the percentage of the profits of the television that can be somehow apportioned to the frame.

[00:38:19] Speaker 05:
Right.

[00:38:19] Speaker 05:
I guess that's the point that I guess I'm trying to translate into something that I understand.

[00:38:26] Speaker 05:
That sounds like a conclusion, not like here's how you would figure that out.

[00:38:33] Speaker 03:
Well, I don't have in front of me, and I don't think in the joint appendix, were the portions of the report where he went through the three different starting points.

[00:38:42] Speaker 03:
But I can represent to you that he presented an analysis for the starting points based on the cost, the market, and the so-called income net.

[00:38:51] Speaker 05:
If you were doing a hypothetical negotiation, is there really something wrong with having a starting point?

[00:38:56] Speaker 05:
Namely, what does the patent owner ask for?

[00:39:00] Speaker 05:
And then you say, whoa.

[00:39:01] Speaker 05:
That's ridiculous.

[00:39:02] Speaker 05:
And it's ridiculous because when you do the economic analysis, that's not at all what the value of the technology is.

[00:39:10] Speaker 05:
But is it really something wrong standing alone with starting with the ask from the patent owner?

[00:39:17] Speaker 03:
Well, I think under this court's cases, there is a big problem with that.

[00:39:20] Speaker 03:
First of all, as the court said in Laser Dynamics, even if you had an accepted settlement agreement,

[00:39:29] Speaker 03:
that arises in the context of litigation, it's questionable whether that represents what would actually happen in a... But we're only talking about a starting point.

[00:39:39] Speaker 05:
The analysis presumably has many miles to go.

[00:39:43] Speaker 03:
Well, but if you start with... You have a garbage in, garbage out problem, right?

[00:39:46] Speaker 05:
If you start with an unreliable starting point, then... Well, it depends what you do at step two and step three through 67.

[00:39:58] Speaker 05:
What negotiation starts with, I'm the patent owner.

[00:40:00] Speaker 05:
I come in and I say, pay me a million dollars.

[00:40:03] Speaker 05:
And the other side says, you, I'm not paying you at a dime.

[00:40:06] Speaker 05:
Now let's try to talk.

[00:40:08] Speaker 05:
I mean, isn't that the model of the, of the negotiation?

[00:40:12] Speaker 05:
And, and then you start getting to the discussion about what the alternatives are for the, you know, the, the would be defendant or would be, would be infringer.

[00:40:24] Speaker 05:
Um, here's.

[00:40:25] Speaker 05:
what you earn if you don't have the technology.

[00:40:27] Speaker 05:
Here's what you can earn if you do have the technology.

[00:40:29] Speaker 05:
Let's figure out the net and let's figure out how we might divide that up.

[00:40:34] Speaker 05:
But what is the starting point of matter all by itself?

[00:40:40] Speaker 03:
Well, let's be clear though about what happened, right?

[00:40:42] Speaker 03:
So what Mr. Hampton did was he took as his starting point this extremely inflated licensing offer, which again covered an immense portfolio of patents.

[00:40:52] Speaker 03:
He then arbitrarily said, there were only 10 patents asserted, therefore I assume that each patent gets one tenth of the value of this license.

[00:40:59] Speaker 03:
I ignore the 354 patents that were not asserted in this particular litigation and assign them zero value.

[00:41:06] Speaker 03:
Then he takes this one tenth of this portfolio number and says that therefore the value of this 927 patent, this frame improvement, is this amount.

[00:41:17] Speaker 03:
The danger with that way of proceeding is twofold.

[00:41:19] Speaker 03:
And I think this was addressed by the court

[00:41:21] Speaker 03:
quite directly in the Whitserv case, you'll find that at $694.29 to $30, a proposed but unaccepted license is a fiction that contradicts the expert's prior testimony.

[00:41:34] Speaker 03:
And that's exactly the same situation we have here, because originally Mr. Hampton had done a sort of a cost-based, savings-based starting point.

[00:41:44] Speaker 03:
When he was told that he couldn't stack up the royalties from all of the patents on all of the products, regardless of whether they had been accused of infringing the different patents, he had to sort of disaggregate his aggregated royalty rate.

[00:41:56] Speaker 03:
He completely abandoned the starting point that he had before.

[00:41:59] Speaker 03:
He grabs onto this license, which was never accepted.

[00:42:02] Speaker 03:
And all of a sudden, he has a starting point that's nearly twice as high as he had before.

[00:42:06] Speaker 03:
So we have, just as in Witserve, the only starting point that we have here is an unaccepted offer

[00:42:15] Speaker 03:
that contradicts his prior testimony.

[00:42:18] Speaker 05:
And the danger in that... What is the status in this proceeding at this point of the disaggregated alternative way of doing it?

[00:42:27] Speaker 03:
So in this point, Mr. Hampton had abandoned that in our case.

[00:42:31] Speaker 05:
And also abandoned the starting point that he had used before?

[00:42:35] Speaker 03:
That's correct.

[00:42:35] Speaker 03:
He rejected the starting point that he used in his first report.

[00:42:40] Speaker 03:
in his supplemental report, because by the time we got to the supplemental report right before trial, there was essentially only one patent left in the case, which was the 927.

[00:42:48] Speaker 03:
He jettisoned his entire analysis of the starting point, plucked this license offer out of thin air, said, the number that he says is confidential in the record, but it's a certain number of cents.

[00:43:02] Speaker 03:
I look at the Georgia-Pacific factor.

[00:43:05] Speaker 03:
Some go up, some go down.

[00:43:06] Speaker 03:
And hey, presto, here's a number that's

[00:43:08] Speaker 03:
that's 10 cents lower than what I started with without any explanation of how he got there.

[00:43:13] Speaker 03:
All of those numbers being quite a bit higher than any number he started with in his first report.

[00:43:18] Speaker 03:
And he never explains why he changed from one starting point to the next starting point.

[00:43:22] Speaker 03:
So the parallels to Witserv are quite strong in that we have an unaccepted offer that's used as a starting point that can't really be squared with the rest of the analysis.

[00:43:32] Speaker 06:
Then Exmark also applies here.

[00:43:33] Speaker 03:
Exmark also applies in the same way.

[00:43:36] Speaker 03:
I think Exmark in particular

[00:43:39] Speaker 03:
is relevant for the apportionment issue that one has to distinguish between the patented and the conventional non-patented elements of the device, and also that a superficial recitation of the Georgia-Pacific factors followed by conclusory remarks is not enough to support a verdict on damages.

[00:43:59] Speaker 03:
And I think, again, while mathematical precision is not required, the court said some explanation both of why and generally to what extent

[00:44:07] Speaker 03:
the particular factor impacts the royalty calculation is needed.

[00:44:11] Speaker 03:
And that's completely absent from his report.

[00:44:13] Speaker 03:
So the court was well within its discretion in deeming the damages opinion to be unreliable.

[00:44:19] Speaker 02:
Any more questions, Mr. Rosen?

[00:44:22] Speaker 02:
Any more questions?

[00:44:22] Speaker 02:
Thank you.

[00:44:26] Speaker 02:
You have four minutes.

[00:44:31] Speaker 02:
Are you ready for rebuttal?

[00:44:32] Speaker 00:
Yes, you are.

[00:44:34] Speaker 00:
I thought there was a lot of war going on.

[00:44:37] Speaker 00:
I'll briefly touch on Mr. Hampton.

[00:44:40] Speaker 00:
There was another co-defendant that had been sued originally who actually accepted terms and conditions close to the ones that were offered to Funai.

[00:44:49] Speaker 00:
And he considered a number of different things in coming to the determinations to which would be a starting point.

[00:44:56] Speaker 00:
And the fact that there are other alternative apportionments doesn't make his wrong.

[00:45:01] Speaker 00:
In fact, there really wasn't.

[00:45:02] Speaker 00:
But I do want to talk about the two patents.

[00:45:06] Speaker 00:
And I think, Your Honor, you hit on it perfectly.

[00:45:10] Speaker 00:
Why would a skilled draftsman draft a claim that's completely insane?

[00:45:13] Speaker 00:
They wouldn't.

[00:45:14] Speaker 00:
And the only reason why this claim is read... Do you have a way of saying why Chef America doesn't say... Yes, I do, Your Honor, because in Chef America, heat the dough to 850, to 400, to 850, that was unambiguous.

[00:45:31] Speaker 00:
Here, the word in is entitled to the full range.

[00:45:33] Speaker 00:
It's ordinary in plain meaning, and it can mean positional,

[00:45:36] Speaker 00:
It can mean location.

[00:45:38] Speaker 00:
It can mean within the limits of.

[00:45:39] Speaker 00:
The only reason why there's this quote, irreconcilable problem is because the defendants who bear the burden of establishing that the specification dictates that N has to mean in the same material included within the material.

[00:45:56] Speaker 00:
They put that limitation in and that limitation and only that limitation for which there's no support in the spec.

[00:46:04] Speaker 06:
I guess the concern I have is that

[00:46:06] Speaker 06:
You're asking us to read the word in in two different ways.

[00:46:10] Speaker 06:
When it says in layer one and layer two, you want us to say, well, for layer one, in means one thing, and then for layer two, it means another thing.

[00:46:19] Speaker 00:
No, I want you to.

[00:46:20] Speaker 06:
That's a little difficult to accept.

[00:46:27] Speaker 00:
No, I'm not, Your Honor.

[00:46:28] Speaker 00:
I'm asking you, did it be read in accordance to its full scope of its plain and ordinary meaning?

[00:46:33] Speaker 00:
And that means positional.

[00:46:35] Speaker 00:
The fact that the position happens to be within the upper and lower limits of the semiconductor, the fact that that position happens to be within the material of the semiconductor is a reasonable definition of in.

[00:46:49] Speaker 00:
The fact that it's defined by the limits of the inside of the omen contact layer as expressly recited at column two in the patent.

[00:46:58] Speaker 00:
And again, under Kenneka, the fact that column two doesn't use the exact words under any claims is not fatal.

[00:47:05] Speaker 00:
That's the broad range of in.

[00:47:08] Speaker 00:
This isn't like the word conductor, where it could mean a person with a baton.

[00:47:12] Speaker 00:
It could mean someone who takes tickets.

[00:47:13] Speaker 00:
It could mean a wire that conducts electricity.

[00:47:15] Speaker 00:
This is the word in.

[00:47:17] Speaker 00:
And it's always read in the context in which it's used.

[00:47:21] Speaker 00:
And all we're asking the court to do is read the claim in the context of which the way the word in was used, and in accordance with the specifications.

[00:47:27] Speaker 00:
Because here's the problem, Judge.

[00:47:29] Speaker 00:
If we go to 589, and Your Honor was asking, it talks about operative semiconductors.

[00:47:35] Speaker 00:
At the top of column five, operative semiconductor film six, which is that red box.

[00:47:41] Speaker 00:
Now, Judge, you have to understand, at summary judgment, we showed that the accused devices have operative semiconductor that extended beyond the yellow line all the way to the edge of the picture where the overlap of the bus lines is.

[00:47:56] Speaker 00:
That's what the accused device has.

[00:47:57] Speaker 00:
They have operative semiconductor that extends, that's a formation of operative semiconductor that extends to that edge.

[00:48:04] Speaker 00:
And to get summary judgment, they said to Judge Andrews, no, no, no, no, no.

[00:48:08] Speaker 00:
Operative semiconductor has to be just what's inside the yellow box.

[00:48:13] Speaker 00:
And now they come in here at this court and they say, well, no, operative semiconductor could be the red box.

[00:48:17] Speaker 00:
And Judge, you don't even have to rely on the figures.

[00:48:20] Speaker 00:
You can look at the specification at column five where it describes box six as operative semiconductor at column five, lines eight.

[00:48:28] Speaker 00:
And it describes it actually as more facilicon

[00:48:31] Speaker 00:
at column 5, line 67.

[00:48:34] Speaker 00:
And most importantly, if the court looks at 55 to 60, it says the pattern of photoresist film, 20B, shows as a mass performing an operative device of a TFT.

[00:48:45] Speaker 00:
An operative device is something different.

[00:48:49] Speaker 00:
In order to read operative semiconductor is only limited with a TFT, the court then has to rewrite claim 4.

[00:48:55] Speaker 00:
Because the only way to make claim 4 make sense is that the claim 4 is some coded message.

[00:49:00] Speaker 00:
that you then move the TFT.

[00:49:03] Speaker 00:
There's absolutely no teaching in moving the TFT.

[00:49:06] Speaker 00:
So to rule that operative semiconductor is a function is limited to inside the TFT would violate every single canon of claim construction that's been handed down by this court for the last 35 years.

[00:49:19] Speaker 00:
Because it would remove all the disclosed embodiments.

[00:49:22] Speaker 00:
It would remove the preferred embodiment.

[00:49:24] Speaker 00:
It's inconsistent with the use of the word in the claims.

[00:49:26] Speaker 00:
There's nothing that would allow this court or Judge Andrews

[00:49:30] Speaker 00:
to rewrite claim four, which is what you have to do, particularly where the claim says, form operative semiconductor at the overlap.

[00:49:37] Speaker 00:
Judge, back to your question about Chef America.

[00:49:40] Speaker 00:
In ortho McNeil, this court said, this court and the district court must interpret the term to give it proper meaning to the claim in light of the language and the intrinsic record.

[00:49:50] Speaker 00:
This case, like Chef, is distinguishable because claim one, or claim, or back to the 190, can and should be interpreted as a,

[00:50:00] Speaker 00:
as the patentee intended with the meaning and connoting all alternatives.

[00:50:06] Speaker 00:
So as long as this court construes claim one, or construes in, in the 190, if it's full range and ordinary meaning, then chef of marca is distinguishing.

[00:50:20] Speaker 00:
Judge, the specific comments you think Judge Cheney asked me about, about distinguishing mora, that's actually in the appendix in 9183.

[00:50:28] Speaker 00:
They were not to distinguish the admitted prior art.

[00:50:31] Speaker 00:
With respect to the PTAB issue on the 190 about claim construction, the PTAB objected to our use of channel etching in the claim.

[00:50:38] Speaker 00:
And that's at the APP at 1181 and 1184.

[00:50:43] Speaker 00:
I made my point about not doing fun.

[00:50:51] Speaker 02:
I think we need to move on.

[00:50:53] Speaker 02:
Any more questions?

[00:50:55] Speaker 02:
Any more questions for counsel?

[00:50:57] Speaker 02:
Okay.

[00:50:58] Speaker 02:
Thank you.

[00:51:00] Speaker 02:
Thank you all.

[00:51:00] Speaker 02:
The case is taken under submission.