[00:00:04] Speaker 00: C and this is document number 22-1761. [00:00:09] Speaker 00: Mr. Hurwitz you have [00:00:33] Speaker 00: We adjourn five minutes of your time for rebuttal. [00:00:36] Speaker 02: That's correct. [00:00:37] Speaker 00: OK, so you may begin. [00:00:38] Speaker 02: Thank you, Your Honor, and may it please the Court. [00:00:45] Speaker 02: The Court of this case comes down to a simple question of claim construction. [00:00:50] Speaker 02: When the patent says A sample stream, does that mean one and only one stream? [00:00:56] Speaker 02: Or does it mean one or more streams? [00:00:59] Speaker 02: Two rules of claim construction independently point to the same answer. [00:01:04] Speaker 02: The first is the general rule that when a patent says A, it means one or more. [00:01:09] Speaker 02: This court has said that that rule is subject to extremely limited circumstances when the patentee advances a clear intent to limit A to just one. [00:01:18] Speaker 02: Second is that when a patentee acts as a lexicographer, the patentee's definition controls. [00:01:25] Speaker 02: In this case, the patentee chose explicitly to define A in the specification to mean one or more or at least one. [00:01:34] Speaker 02: Whether you apply the general rule of claim construction or the specific definition in the patent, when the patent says a sample stream, that means one or more sample streams. [00:01:45] Speaker 02: As a result, the board applied the wrong construction. [00:01:48] Speaker 02: The decision below should be reversed. [00:01:50] Speaker 04: Can I just ask, so taking what you just said as an assumption that there's a pretty strong [00:01:59] Speaker 04: preference for that, address what I think is the major reason that the board said otherwise, which is the centerline language of Claim 2. [00:02:14] Speaker 04: And I understand, of course, that it says a centerline. [00:02:19] Speaker 04: It doesn't say the centerline, although sometimes in the briefing here that's been misquoted. [00:02:25] Speaker 04: Why is that not a sufficient reason to overcome the two claim construction principles that you recited would otherwise favor? [00:02:37] Speaker 02: So let me first frame the question, which is one of the principles is not merely contextual or presumption, but it actually requires the definition. [00:02:46] Speaker 02: Overcoming lexicography requires clear disavowal. [00:02:49] Speaker 02: So a mere contextual suggestion that the better reading might be a singular center line for a singular training is not sufficient. [00:02:55] Speaker 04: That's why I think I would have started with the lexicography and not with the AN background principle. [00:03:02] Speaker 02: We view them as both sufficient, but the lexicography, I agree, is stronger. [00:03:05] Speaker 02: So let's go to why [00:03:08] Speaker 02: Why a center line doesn't overcome that doesn't constitute a disavowal. [00:03:12] Speaker 02: A couple of reasons. [00:03:13] Speaker 02: First, you already mentioned it. [00:03:14] Speaker 02: A centerline in the context of this pattern means at least one centerline. [00:03:17] Speaker 02: So you can read that claim, and it makes perfect sense to say, to require at least one centerline with respect to which focusing fluid is introduced symmetrically for at least one sample stream. [00:03:31] Speaker 02: There's nothing unusual about that, nothing impossible about that. [00:03:34] Speaker 02: You just ask the question, are there equal amounts of focusing fluid added left and right of one of the defined lines? [00:03:41] Speaker 02: However you define them, it's totally possible. [00:03:44] Speaker 02: That's contrasted with asymmetric introduction of sheet fluid, which is also common. [00:03:49] Speaker 02: We show at page 39 of the blue brief, sometimes you do both at the same time in equal amounts, sometimes you do just one. [00:03:55] Speaker 02: That's all this claim is requiring, and it's perfectly consistent whether it's a single stream, multiple streams, or a split stream that is a single stream with a gap in the middle. [00:04:05] Speaker 02: The second reason is that even if you say, there's got to be just one center line, and it's got to go through the middle, it still doesn't exclude a split sample, which is different from multiple independent samples. [00:04:17] Speaker 02: And in SIMINE, what we have is a single stream with a gap in the middle, assuming the board is right about how to read 3A and 3B. [00:04:26] Speaker 02: Just focusing on 3B of SIMINE on page 21, 21 of the Joint Appendix. [00:04:30] Speaker 02: What simone itself says is that, describing that gap, it says the stream, singular, is split into two parts with a gap in the middle, i.e. [00:04:41] Speaker 02: in the middle of the stream. [00:04:43] Speaker 02: Now, that means, simone is teaching you, there's the center line, right in the middle. [00:04:46] Speaker 02: The fact that it doesn't touch sample doesn't make it any less the center of the sample stream, just as the fact that the center of a donut doesn't touch a donut [00:04:55] Speaker 02: means that it's not the center. [00:04:57] Speaker 02: It's still the center, as defined with respect to the sample stream that has a gap in the middle. [00:05:02] Speaker 02: And throughout SIM and A, it discloses that it's focusing the sample stream. [00:05:08] Speaker 02: 3A, 3B, and throughout. [00:05:10] Speaker 02: The abstract refers to the sample stream. [00:05:13] Speaker 02: In 2121, we're talking about the gap. [00:05:16] Speaker 02: What does it say? [00:05:16] Speaker 02: At the end of that paragraph, the one about when the gap emerges and when it doesn't, [00:05:21] Speaker 02: It says in 3b, what you see is a reduction in particle flux for the same spatial confinement of what? [00:05:28] Speaker 02: Of the focused stream, okay, in the discussion section of 2126. [00:05:34] Speaker 02: First, repeatedly, to the focused stream. [00:05:37] Speaker 02: The stream that has, you can adjust the shape, it has consistent uniform particle flux. [00:05:42] Speaker 04: Just so that I understand. [00:05:44] Speaker 04: this argument that you're making, which is in the brief, is that just an argument that even without altering the claim construction, Siminet shows a single stream? [00:05:58] Speaker 02: It's actually, it affects both that argument as well as the claim construction argument because it shows that at least with the context of it, understanding [00:06:08] Speaker 02: multiple streams in the context of a split stream, you still have a centerline if the total sample stream can have a defined middle. [00:06:16] Speaker 02: Now, as we see it, the better way to read claim two to affect claim one is that a centerline means one or more centerlines. [00:06:23] Speaker 02: And that, as you said, is the core of the board's analysis. [00:06:26] Speaker 02: And the board was wrong to understand that a centerline had to be just one. [00:06:32] Speaker 02: But even if it has to be just one in claim two, [00:06:36] Speaker 02: Multiple sample streams, or a split sample at the very least, can have a center line. [00:06:41] Speaker 02: So a sample in claim one can be multiple streams as well. [00:06:47] Speaker 02: So that's how we view it as claim construction. [00:06:49] Speaker 02: We also think independently, court can reach the same result by saying the board's application of its construction lacks substantial evidence. [00:06:58] Speaker 02: Now, I think it is important to note [00:07:01] Speaker 04: Can I ask you a question about is it simenet how do you pronounce I say simenet? [00:07:07] Speaker 04: Okay When simenet refers first of all, there's 3a and 3b Do I understand correctly? [00:07:18] Speaker 04: I don't know if you know what I'm talking about. [00:07:20] Speaker 04: There are a couple of paragraphs and Dr. Arnold is that the other side's expert? [00:07:25] Speaker 04: Says some stuff about 3a 3a which almost certainly is typographical. [00:07:30] Speaker 02: He was really referring to 3b Because he's only showing the 3b picture if this isn't from any I think I think I may know what you're talking about, but I couldn't pull it okay from cold but what I think what's going on he's showing just 3b and he talks about 3a and [00:07:47] Speaker 02: The way I read it is that he's really talking about 3A and he's not putting it in the declaration because if you look at 3A, it's hard to say that there's actually multiple. [00:07:58] Speaker 04: I couldn't find any answer to the following question. [00:08:02] Speaker 04: Does anybody talk about what it means to have a residual gap? [00:08:06] Speaker 04: When I read those words, I'm trying to picture [00:08:09] Speaker 04: you know, the stream is coming down, and at some point it was separate, and then it comes back together, but there's still some little gap kind of down at the bottom, even though it is topologically connected. [00:08:24] Speaker 04: In a way, the 3b is not topologically connected, because there's, you know, squeezing fluid that's running right through the center. [00:08:32] Speaker 02: Yes, so if you, I believe it's at 41.71 of the Joint Appendix, you'll see that our expert explains what he understands the residual gap of 3A to be talking about. [00:08:43] Speaker 02: And what he says is, a skilled artisan would have understood, again, 41.71, this is in volume two of the Joint Appendix, [00:08:57] Speaker 02: What he says is, a skilled artisan would have understood the residual gap described in Semine refers merely to the presence of a short notch at the bottom of the image, which I've highlighted below. [00:09:08] Speaker 02: So he reads it, residual gap, to be sort of, I think, how you do. [00:09:12] Speaker 02: It's not the same history of it used to be separate and now it's together. [00:09:15] Speaker 02: But the point is, it's the residue of what you might have imagined to be a gap, but it's not there anymore. [00:09:20] Speaker 02: It's like the memory of a gap. [00:09:22] Speaker 02: It's the notch that's left behind. [00:09:25] Speaker 02: They did come together. [00:09:26] Speaker 04: Rivers don't have memories. [00:09:27] Speaker 04: So either there was once a separation into two pieces that were not topologically connected and they now are, but there's a piece that's, you know, it hasn't. [00:09:40] Speaker 04: Right. [00:09:41] Speaker 02: It reflects the earlier separateness. [00:09:42] Speaker 02: It's no longer separate, but you can see that. [00:09:46] Speaker 02: That's how I understand it. [00:09:47] Speaker 02: And I think that's what he's saying. [00:09:48] Speaker 02: And, you know, [00:09:50] Speaker 04: But if that was right and you accept the board's view that single has to be single from entry to inspection station, then 3A meets their test. [00:10:05] Speaker 02: I don't think that's right about 3A. [00:10:07] Speaker 02: So I think you have to remember what context in which the disputed claim term arises. [00:10:13] Speaker 02: The disputed claim term arises in the part of the claim that talks about a fluid focusing region configured to focus the sample stream. [00:10:20] Speaker 02: So there might be separateness before the fluid focusing region. [00:10:24] Speaker 02: That doesn't, even if you require there to be single contiguous sample stream, it's not required before or after the fluid focusing region. [00:10:32] Speaker 02: The disputed claim term is whether there is a fluid focusing region that within that region it's configured to focus a sample stream. [00:10:41] Speaker 02: The separateness, if there is any, is before the sample from port B [00:10:47] Speaker 02: enters the fluid focusing region. [00:10:50] Speaker 02: It comes in from the sides as two separate pieces that come together in the middle in figure 3a. [00:10:54] Speaker 02: They meet. [00:10:56] Speaker 02: They re-meet. [00:10:57] Speaker 02: They're introduced together. [00:10:58] Speaker 02: They separate for a moment. [00:10:59] Speaker 02: They come together and meet again. [00:11:01] Speaker 02: At that moment is where you see the fluid focusing region. [00:11:06] Speaker 02: The inlet has a split. [00:11:07] Speaker 02: The fluid focusing region is continuous. [00:11:11] Speaker 02: And you know that to be true, I mean, [00:11:14] Speaker 02: The question didn't arise below, and so there's not a whole lot of, I can't point you to test 20 on this, but the flows are laminar, right? [00:11:21] Speaker 02: Which means they're layered. [00:11:22] Speaker 02: They don't mix. [00:11:23] Speaker 02: So when you see downstream that it's contiguous, that means that it's been contiguous. [00:11:31] Speaker 02: Contiguous. [00:11:32] Speaker 02: That is to say the topology you see in figure 3a is the same topology top to bottom anyway. [00:11:39] Speaker 02: that you would have seen at the inlets from the sides. [00:11:42] Speaker 02: If you go to figure one of simene, simene is, we're talking about 2020-ish. [00:11:49] Speaker 02: Let me pull it up. [00:11:52] Speaker 02: 2021, it's figure three. [00:11:56] Speaker 02: It's 21, excuse me, 2119 of simene. [00:12:03] Speaker 02: The continuity [00:12:06] Speaker 02: So we're talking about figure 1, the upper left, 2119. [00:12:11] Speaker 02: Figure 1C is the clearest indication. [00:12:14] Speaker 02: In figure 1C, what you see in the fluid focusing region, which is basically the entire red central stream from where A and B meet in the main channel to the end, it's represented as a single contiguous stream from the intersection of A and B downstream before [00:12:36] Speaker 02: B enters the main flow channel, it is coming in as two separate substreams. [00:12:42] Speaker 02: In the flow conditions that generate figure 3A, which give you that notch at the bottom, but the continuity of a single stream, the pressure from B is sufficiently high that the two pieces meet in the middle. [00:12:55] Speaker 02: They're not split in half by the sample. [00:12:58] Speaker 02: In the pressure settings that generate free B, the two separate streams, the pressure from A [00:13:05] Speaker 02: is sufficiently high to block the two pieces from joining in the middle. [00:13:08] Speaker 02: And that's the teaching of 2121, this whole dispute about can you adjust the pressure settings so as to produce or eliminate the split sample. [00:13:16] Speaker 02: What Simonet expressly teaches on its face, and you don't have to look anywhere else, is that you get the gap. [00:13:21] Speaker 02: The gap occurs when the flow from B is small relative to A. As in B's gonna meet in the middle unless you push A really hard and then it splits into two. [00:13:32] Speaker 02: 3A shows you [00:13:33] Speaker 02: it can meet in the middle. [00:13:35] Speaker 02: That's how we read it, and our expert explains what residual gap means is a notch at the bottom. [00:13:39] Speaker 02: I describe it as a memory. [00:13:40] Speaker 02: Yes, it doesn't literally have a memory. [00:13:42] Speaker 02: It just reflects the fact that previously, before you enter the fluid focusing region, they're separate. [00:13:47] Speaker 02: But in the fluid focusing region, where all of the focusing of the sample occurs, it's continuously [00:13:55] Speaker 02: a single sample stream. [00:13:57] Speaker 03: If we were to agree with you on the claim construction but not reach any other issue, would our disposition be to reverse the finding just with respect to claim one or were there any other claims that there was no other issue besides the claim construction? [00:14:12] Speaker 02: So I think that with respect to the dependent claims, [00:14:17] Speaker 02: I think that the arguments around claim two are essentially collapsing into the arguments around claim one, so if you agree with us on claim construction, I think claim two is straightforward. [00:14:27] Speaker 02: There is actually no dispute that simenet itself teaches all limitations of claim eight. [00:14:32] Speaker 02: If you look at the red brief, the only thing they're disputing is whether one would combine simenet with Kim, the secondary reference. [00:14:38] Speaker 02: We don't mention Kim because we don't need it. [00:14:40] Speaker 02: It was an alternative argument. [00:14:42] Speaker 02: So I think even if you reach literally nothing else, no other questions, reversal is to claim one. [00:14:49] Speaker 02: Claim eight should fall with it. [00:14:50] Speaker 02: There's no arguments. [00:14:52] Speaker 02: I recognize we asked for a lot in terms of relief. [00:14:55] Speaker 02: Six and nine. [00:14:55] Speaker 04: But to six and nine, I bet there seems to be other issues, including, on your view of center line or on some proper view of center line, is there the equal flow on both sides? [00:15:10] Speaker 02: Translate. [00:15:12] Speaker 02: That's right. [00:15:13] Speaker 02: 2, 6, and 9 at least have arguments that are distinct. [00:15:16] Speaker 02: 6 and 9 are more distinct. [00:15:17] Speaker 02: I think 2 more or less collapsed into 1, but you could view it differently. [00:15:20] Speaker 02: 6, surely same claim. [00:15:23] Speaker 02: They haven't mentioned it. [00:15:23] Speaker 02: It is a different issue. [00:15:24] Speaker 02: We think it's straightforward, but recognize that the court may be inclined to remand in the first instance. [00:15:29] Speaker 02: And claim 9 is an obviousness combination that would have to be considered. [00:15:32] Speaker 02: Again, the relevant reference, Cumro talks about combining them, essentially. [00:15:38] Speaker 02: So we think it's straightforward, but again, it would make sense [00:15:42] Speaker 02: to remand if that were the court's inclination. [00:15:45] Speaker 02: I saw that I was in my bottle. [00:15:47] Speaker 00: Yes, it's all right. [00:15:57] Speaker 01: Mr. Chen, you may start. [00:15:58] Speaker 01: Thank you. [00:15:59] Speaker 01: May it please the court, Julius Chen, for appellee, I don't know. [00:16:03] Speaker 01: I'd like to cover mainly the two issues that my friend on the other side covered today. [00:16:07] Speaker 01: And those would be claim two, which I think is the crux of the claim construction argument. [00:16:12] Speaker 01: And then I do very much want to address a lot of the characterization that you've heard about Semine because we do think there are other expert statements in the record that would be competing. [00:16:24] Speaker 01: And again, this is a substantial evidence question. [00:16:27] Speaker 01: But let me start with claim two. [00:16:30] Speaker 01: What ABS has really centered on, sorry, unintended, in its reply brief is this idea that a center line also has to be plural. [00:16:42] Speaker 01: We don't think that that helps ABS at all because what they're saying is, well, there could be a center line. [00:16:48] Speaker 01: And what that means is that you would have the symmetrical introduction of focusing fluid symmetrically [00:16:54] Speaker 01: And that would be the configuration with respect to one of a number of center lines. [00:17:00] Speaker 01: And they suggest several of them. [00:17:01] Speaker 01: They say you could draw the center lines through both parts of the split sample. [00:17:06] Speaker 01: You could draw it through one of the split sample. [00:17:08] Speaker 01: And in our view, what happens then is essentially you are rendering most of claim to superfluous. [00:17:15] Speaker 01: Again, the claim language is symmetrically with respect to a center line of the sample string. [00:17:21] Speaker 01: Our expert, as the board found at Appendix 27, says, well, this is asymmetrical. [00:17:27] Speaker 01: It is not symmetrical when you have the two sample streams and you have symmetrical introduction. [00:17:33] Speaker 01: It will be off-center with respect to one of those center lines. [00:17:38] Speaker 01: And that's what the board credits our expert saying at Appendix 27. [00:17:42] Speaker 04: But not the one in the middle that's not [00:17:45] Speaker 04: where the centered line is not running through sample fluid. [00:17:49] Speaker 01: That's correct, your honor. [00:17:51] Speaker 01: And I think that's a separate argument that they've made. [00:17:53] Speaker 01: But just to finish on the first one, what I think happens is essentially you could draw a line, an arbitrary line, through any part of the channel and say, well, you have symmetrical introduction in their view, which they say is just equal amounts on both sides. [00:18:10] Speaker 04: But that would be true again with respect to- I'm sorry. [00:18:15] Speaker 04: why isn't it right to say there are two requirements. [00:18:19] Speaker 04: One is something has to be a center line and that's measured with respect to a sample fluid. [00:18:27] Speaker 04: And then an additional requirement that there have to be equal amounts of the squeezing liquid on [00:18:35] Speaker 04: Either side of the center. [00:18:37] Speaker 01: Sure. [00:18:37] Speaker 04: Not the same thing. [00:18:38] Speaker 01: Well, your honor that that's their argument with the center line in the gap. [00:18:42] Speaker 01: That's that's what I take your question to me. [00:18:44] Speaker 01: Right. [00:18:44] Speaker 01: And I'm happy to go there. [00:18:46] Speaker 01: So [00:18:47] Speaker 04: I guess I took you to be saying you could draw a line anywhere in the sample stream, but then not any line is going to be a center line. [00:18:54] Speaker 01: Well, yes, that's our point, Your Honor. [00:18:57] Speaker 01: It would essentially render. [00:18:58] Speaker 01: They're just saying it's symmetrical then, right? [00:19:01] Speaker 01: And so they have essentially two arguments, right? [00:19:04] Speaker 01: The first argument is that it goes in the gap. [00:19:07] Speaker 01: I'm addressing what I think is the emphasis of the reply, which says a center line is multiple center lines. [00:19:14] Speaker 01: You could draw it in a number of places. [00:19:17] Speaker 01: And the example they use is the figure in Seminary where you have the two split sample strips. [00:19:24] Speaker 01: And so they say you could draw the line through either one of those. [00:19:28] Speaker 01: And so I'm saying in that argument, that second argument, that they say you could draw the lines there in the split-sample stream, it would be symmetrical. [00:19:37] Speaker 04: Correct. [00:19:37] Speaker 04: But then there might be a question of whether Simenet meets the second requirement of claim two, namely, with respect to either one of those of symmetrical squeezing fluid on both sides of either line. [00:19:52] Speaker 04: And just intuitively, one may raise an eyebrow about that. [00:19:56] Speaker 01: Well, all we're saying there, Your Honor, is that that is not symmetrical. [00:20:00] Speaker 01: Because it's not symmetrical with respect to the center line of the sample stream. [00:20:05] Speaker 01: Now, I'm happy to talk about their first argument, which is that the center line would go in the middle of the sample. [00:20:13] Speaker 01: And I think what you just said, Your Honor, was telling when you asked me the question. [00:20:17] Speaker 01: You said it would be in the middle of the sample. [00:20:19] Speaker 01: It doesn't touch sample. [00:20:21] Speaker 01: But again, the claim language says symmetrically with respect to a center line of the sample stream. [00:20:28] Speaker 01: Now, Avius in his brief has very carefully worded its arguments to also say it would be in the middle of the sample in a gap. [00:20:36] Speaker 01: That's not the same. [00:20:37] Speaker 04: Just to be clear, it seems to me there is a difference between being in the middle of a stream and being in the midst of the stream. [00:20:46] Speaker 04: That is, if there's a dry section between two forks of the river, the center line of the Potomac, [00:20:53] Speaker 04: runs for a brief period right over TR Roosevelt Island. [00:20:58] Speaker 01: That's true, Your Honor. [00:20:59] Speaker 01: And I think the difference here is that it's not just a dry section in the middle. [00:21:05] Speaker 01: What's happening is in the middle of the gap, there's sheath fluid in the gap. [00:21:10] Speaker 01: It is all flowing in a laminar way, which means they don't mix together. [00:21:14] Speaker 01: That is the important principle. [00:21:16] Speaker 04: I had TR Island as the sheath fluid. [00:21:20] Speaker 04: It's just not the sample fluid. [00:21:23] Speaker 04: The center line doesn't have to always lie in the sample, to still be a center line of [00:21:33] Speaker 01: Well, Your Honor, this is the difference between the sample and the sample stream. [00:21:38] Speaker 01: And I think maybe what is clarifying here is the idea that, in our view, and this is what our expert says and I think our expert and what the board also draws this distinction at Appendix 25, is that we think that a split sample is not one sample or sample stream. [00:21:57] Speaker 01: We think it is two distinct sample streams. [00:22:00] Speaker 01: And the way you know that is there is sheath fluid in the middle. [00:22:03] Speaker 01: It's not just sort of dry, where you say, well, this continues to be one sample stream. [00:22:09] Speaker 01: And so on that understanding, which again the board adopted, rejecting their expert's argument at appendix 4181, this is the argument they advanced there. [00:22:18] Speaker 01: They said, this is in the middle of the sample. [00:22:24] Speaker 01: in a gap, and the board says, well, you are conflating two concepts here, the sample streams that we see when you have a split, because as our expert explains, a poster would understand when you have a split sample in that way, that those would be two distinct sample streams. [00:22:44] Speaker 01: That's what our expert says at appendix 4262. [00:22:49] Speaker 01: And what ABS is saying and what its expert is saying is that, well, no, the way we get around that is just to say that we have a center line of the sample. [00:23:01] Speaker 01: not saying that it's in a stream. [00:23:02] Speaker 01: And so I think going to the claim language, Your Honor, it's symmetrically, again, with respect to a center line of the sample stream. [00:23:09] Speaker 01: If there are two sample streams, that center line is not a center line of those sample streams. [00:23:15] Speaker 01: It is just a center line of what they call the sample generally. [00:23:18] Speaker 01: And again, a point, as the board adopted in Appendix 25, and has a finding rejecting your expert's testimony, this is a matter in which there are two distinct concepts. [00:23:30] Speaker 03: sample and sample street On the claim construction question sure a sample stream given what we have described as essentially a rule that it's almost always one or more the lexicography and the definitions of the patent itself, I think If it seemed to follow logically that if there's some uncertainty or ambiguity as to how one of skill in the art would read [00:23:57] Speaker 03: this term and your patent that the board's construction was incorrect because the rule and the lexicography go against you so strongly. [00:24:08] Speaker 03: Would you agree with that? [00:24:09] Speaker 03: We have to be pretty darn sure to go with your side on this issue. [00:24:14] Speaker 01: Well, Your Honor, I wouldn't disagree about how you're articulating the standard. [00:24:18] Speaker 01: And look, we're not trying to sort of quibble with the standard here. [00:24:21] Speaker 01: I think everybody agrees that you have to get to the context and claim to here. [00:24:27] Speaker 01: But what I would disagree with is the idea that because maybe there's some competing expert testimony on this, then you just go with a default in that way. [00:24:36] Speaker 01: It's still a question of what a post-it would understand here. [00:24:39] Speaker 01: That's the exercise. [00:24:40] Speaker 01: And so there, we don't think that you would apply a different rule necessarily. [00:24:46] Speaker 01: It's still what a post-it would understand. [00:24:48] Speaker 01: And here the board credited our expert of what a post-it would understand over theirs. [00:24:53] Speaker 01: And it's not just the expert testimony again. [00:24:55] Speaker 01: as I was discussing before, there is the claim language as well, which has a center line of the sample stream. [00:25:04] Speaker 01: And just taking the claim language on its face, there is a reason why, in their brief, they have to use the center line of the sample. [00:25:12] Speaker 01: They appreciate that that is not the same thing as the center line of the sample stream. [00:25:17] Speaker 01: And again, this goes to basic microfluidics. [00:25:20] Speaker 01: When you have sheath flow in between two sample streams, even if those were originally one and then split, which is not the case. [00:25:28] Speaker 01: But when you have that, that is a distinct set of sample streams separated by sheath fluid. [00:25:38] Speaker 03: I know we're not here on infringement, but sometimes it's easier for me to think about infringement. [00:25:42] Speaker 03: And there is some back and forth in the briefs about infringement. [00:25:46] Speaker 03: Is there a dispute here? [00:25:48] Speaker 03: They say, for instance, in the gray brief at three, that you're saying infringement is only possible by a device that focuses one single contiguous stream under all possible flow conditions. [00:26:01] Speaker 03: Is that right? [00:26:02] Speaker 01: Are you agreeing your claims are that narrow? [00:26:04] Speaker 01: No, no, no. [00:26:05] Speaker 01: And I want to be very clear about what we're saying. [00:26:07] Speaker 01: We're responding to a use-based limitation argument. [00:26:10] Speaker 01: And all we're saying is that you need a configuration to focus one sample string. [00:26:16] Speaker 01: We are aligning ourselves with the rest of the case law. [00:26:19] Speaker 01: This is the Parker Vision case. [00:26:20] Speaker 01: I think that's discussed in the cases, which says you can have other modes of operation, perhaps, [00:26:27] Speaker 01: But as long as you have a configuration that is to focus a sample stream, that would be enough for infringement. [00:26:35] Speaker 01: So it would be very clear. [00:26:36] Speaker 01: We are not saying what they are attributing to us. [00:26:38] Speaker 03: All right. [00:26:38] Speaker 03: I think I understand. [00:26:39] Speaker 03: But the way I think you put it in the red brief at 35, 36, [00:26:43] Speaker 03: If an accused device is not configured to receive only a single sample stream and then focus that same single sample stream, then the device does not infringe the challenge claims. [00:26:56] Speaker 03: I think I read what you wrote correctly. [00:26:59] Speaker 01: sure sure your honor did I get that right yeah I mean I don't have any reason to say you read it wrong but just to be clear if there's any confusion I very much want to clear this up we are not we are not trying to say that it has to always in any circumstance under any conditions that is very much not our position I but I only infringe on [00:27:19] Speaker 03: when it functions in the way that you're setting it up. [00:27:23] Speaker 01: No, no, no. [00:27:23] Speaker 01: The key word would be configured. [00:27:25] Speaker 01: It would have to be configured. [00:27:27] Speaker 01: So this is the classic example in the court's case law where it talks about how you have a claim that says a car has to be driven in third gear. [00:27:34] Speaker 01: Perhaps a car can also be configured to drive in gears 1, 2, and 3. [00:27:40] Speaker 01: It's not necessarily the case that you have to drive it in the third gear, but as long as it is configured in gears 1, 2, and 3, and the claim says a configuration for gear 3, that is enough because it's a configuration claim. [00:27:54] Speaker 01: We're focused here on the configuration. [00:27:56] Speaker 01: We're not talking about the use as part of our construction there. [00:28:00] Speaker 01: Um, if I can turn to seminary cause I'm interested. [00:28:02] Speaker 04: I mean, do you understand there's a, you know, the Parker vision recited the aspects, um, eyewear case that said configured sometimes as this very broad meaning like capable of, but often it doesn't mean something more like something intent based about designed to, is that the idea that you think, um, applies here to this configured claim? [00:28:29] Speaker 01: Yes, we think this would be a configured claim as opposed to a capability claim. [00:28:37] Speaker 01: That's the line that the case law is drawing, I believe. [00:28:40] Speaker 01: And I think the reason why ABS has made much of this in its brief, even though it hasn't mentioned it today, is it's trying to use this as a grounds to say that there is anticipation here. [00:28:54] Speaker 01: What is really arguing is that SEMINE has different modes of operation. [00:28:59] Speaker 01: It has a split stream mode and it has a single stream mode. [00:29:02] Speaker 01: I want to be very clear here that we don't believe, to your question about figure 3a, there is very much expert testimony that 3a [00:29:13] Speaker 01: has a residual gap, but that residual gap still is a gap. [00:29:17] Speaker 01: Our entire expert's position, this is at 4253 to 4254, what he is saying is that when you have the figure one device, [00:29:28] Speaker 01: that my friend on the other side talked about. [00:29:31] Speaker 01: You have the stream comes in from port B. It is a branching set of inlets. [00:29:36] Speaker 01: And so it then has the sample stream go into channel A. I noted at the outset that what Simonet says at appendix 2121 is that those streams from channels B do not reach the middle of channel A. And what our expert says is that [00:29:57] Speaker 01: Even when the authors in their experiment try to adjust for flow rates, they cannot close the gap. [00:30:09] Speaker 01: So there's direct testimony that the board credited here, that you would not have a situation in which Seminary discloses anything close to a single sample stream mode. [00:30:20] Speaker 04: Can I ask you a question that I asked before? [00:30:25] Speaker 04: Do you agree that paragraphs 134 and 135 of Dr. Arnold's, this is 4262 to 4263, I guess, in [00:30:39] Speaker 04: referring to figure 3a while showing figure 3b and using a quote from Simonet that's expressly about 3b that the references to 3a there are simply typographical errors. [00:30:58] Speaker 04: A poster would understand Simonet to be clearly depicting a split sample stream in figure 3a, comma, which is an image, colon, here's a picture, and they show 3b, not 3a. [00:31:09] Speaker 04: And then down below, in short, figure 3a and Simonet's description of the particle stream as, quote, split into two parts with a gap in the middle clearly demonstrates something. [00:31:18] Speaker 04: The quote is from Simonet's description expressly of 3b, unless I've [00:31:23] Speaker 01: That's my understanding, and there is a, he is showing freebie here, but elsewhere, as I've been saying, he discusses 3A and talks about how it would be physically impossible. [00:31:33] Speaker 01: It is the design characteristic. [00:31:35] Speaker 01: This is what he says, because they don't connect. [00:31:39] Speaker 01: That's correct. [00:31:41] Speaker 01: That's for his. [00:31:42] Speaker 04: That's what was confusing me about this residual business. [00:31:45] Speaker 01: I see. [00:31:45] Speaker 04: Well, if they were once together. [00:31:48] Speaker 01: Well, just to be clear, they are not once together. [00:31:51] Speaker 01: They start as, if you look at the appendix 2119. [00:31:55] Speaker 04: I'm sorry. [00:31:58] Speaker 04: Once separate, they now join. [00:32:00] Speaker 04: I don't understand how that fits with Dr. Arnold's testimony that they can't be together. [00:32:06] Speaker 01: Your honor, he says that it is the unavoidable product of the figure one design. [00:32:11] Speaker 01: This is at 4262. [00:32:13] Speaker 01: He says that it is the design of the device itself, how it's configured, to not allow them to come together. [00:32:20] Speaker 01: And again, this is just a battle of the experts. [00:32:22] Speaker 01: The board says that nothing in 3A or 3B shows a single string. [00:32:28] Speaker 01: And again, the testimony that I pointed the court to very much says that there is a gap in the middle that continues, and that even when you were to adjust the flow rates, that does not solve the problem. [00:32:47] Speaker 01: He says this explicitly. [00:32:48] Speaker 01: It does not create a single sample stream. [00:32:52] Speaker 00: Thank you, Mr. Jeffrey. [00:33:00] Speaker 02: I'll try to keep it even shorter. [00:33:06] Speaker 02: Just two points. [00:33:08] Speaker 02: Judge Stark, you mentioned that ambiguity is not enough, and all they pointed to was the reference to a center line of the sample stream. [00:33:15] Speaker 02: The reference in claim two to a center line of the sample stream is not a clear disavowal of the express definition of A. It's just that simple on claim construction, and that's the end of the appeal as far as I'm concerned. [00:33:25] Speaker 02: The other thing I wanted to address very briefly is there was some suggestion that we were strategic [00:33:30] Speaker 02: in our brief by referring to stream as opposed to the sample stream, like the whole, excuse me, sample as opposed to sample stream. [00:33:38] Speaker 02: We may have varied our language. [00:33:39] Speaker 02: There was nothing strategic about it. [00:33:41] Speaker 02: We're not afraid of it. [00:33:42] Speaker 02: Simone says the focus stream, the sample stream is focused repeatedly throughout. [00:33:46] Speaker 02: And it is literally a textbook design used to teach undergraduates and graduate students about how hydrodynamic focusing works to focus the sample stream. [00:33:54] Speaker 02: And they use the language, the sample stream, in the Fulch textbook at 2531 of the Joint Appendix. [00:34:00] Speaker 02: from the Ligler textbook at 3923 to 24, the sample stream. [00:34:04] Speaker 02: In the Frankowski article, it talks about fully controlling the size and position of what? [00:34:09] Speaker 02: The sample stream. [00:34:10] Speaker 02: There's nothing, that's not a problem for us. [00:34:13] Speaker 02: SEMINE teaches focusing the sample stream. [00:34:16] Speaker 02: It's configured to focus the sample stream, and it was widely recognized to do so. [00:34:22] Speaker 02: Thank you. [00:34:23] Speaker 00: This concludes our argument