[00:00:00] Speaker 03:
to our second case, number 24, 2015, Tesla, Inc.

[00:00:04] Speaker 03:
versus Charge Fusion Technologies.

[00:00:06] Speaker 03:
Ms.

[00:00:06] Speaker 03:
Carter.

[00:00:07] Speaker 00:
Good morning, Your Honors.

[00:00:09] Speaker 00:
May it please the Court, I would like to reserve five minutes for rebuttal.

[00:00:12] Speaker 00:
I would like to address three errors by the Board, each warranting that the Board's decision be vacated, if not reversed and remanded.

[00:00:19] Speaker 00:
First, I will address our challenge to the Board's constructions of the claim and control limitation of claim one.

[00:00:25] Speaker 00:
and the similar limitations in method claims eight and 14, which this court reviews de novo.

[00:00:32] Speaker 00:
In its claim construction section of the final written decision, the board impermissibly imported a limitation that claim one requires that the instructions take into consideration the battery level in some manner when operating the climate control mechanism.

[00:00:46] Speaker 00:
It went on to state that specifically the instructions that operate the climate control

[00:00:52] Speaker 00:
mechanism must take into account the predetermined battery level and the claimed instructions must be based in some manner on the predetermined battery level.

[00:01:01] Speaker 00:
And this construction was an error.

[00:01:03] Speaker 00:
The claim one itself does not recite any requirement that the instructions for operating the climate control mechanism take into account any battery level or for any consideration of the battery level in the course of operating the climate control mechanism, nor is it disclosed anywhere in the very limited disclosure in the specification.

[00:01:23] Speaker 00:
Instead, the claim merely requires that the climate control mechanism is operated until the amount of charge residing in the battery reaches this predetermined level by whatever means, which could be by other instructions controlling other aspects of the system, not necessarily by the claim climate control mechanism.

[00:01:43] Speaker 00:
For example, the climate control mechanism could operate just so long as electricity is powering it, just like in a gas vehicle.

[00:01:51] Speaker 00:
The engine will run and operate the AC so long as the gas is powering the engine.

[00:01:56] Speaker 00:
The engine itself does not need to take into consideration the gas level.

[00:02:00] Speaker 00:
The driver, either with an electric vehicle, with a claimed invention, or in a gas vehicle, is assured that the climate control mechanism, such as AC, will continue running until a predetermined level of energy, whether gas or electricity, is reached.

[00:02:13] Speaker 00:
And that's the point of the claim control limitation and why it's not meaningless.

[00:02:18] Speaker 00:
As the board noted at Appendix 4, the 135 patent sets forth a system where a user may safely leave a pet in a parked vehicle by establishing and or setting charging parameters designed to keep the air conditioning on to maintain a cool vehicle and to keep the heat on to maintain a warm vehicle.

[00:02:36] Speaker 00:
The Intel requirement thus doesn't require that it's the climate control mechanism itself that is considering the predetermined battery threshold so long as

[00:02:46] Speaker 00:
the climate control mechanism continues to run until that level is met.

[00:02:52] Speaker 00:
And without it, without this assurance, the user could leave the vehicle and not know whether the AC will continue to run for one minute or two minutes or until it actually meets the predetermined level.

[00:03:04] Speaker 00:
And this is important because it gives the assurance to the driver and allows for many possibilities.

[00:03:10] Speaker 00:
For example, the driver could monitor

[00:03:13] Speaker 00:
the user interface on the mobile device required in limitation 1B to see when the predetermined threshold is met, and then decide whether to return to the vehicle or continue charging.

[00:03:23] Speaker 00:
It's also possible that the driver is provided a notification as required by dependent claim 15, but not claim 1.

[00:03:31] Speaker 00:
Just like a low gas light comes on in a gas vehicle, but it doesn't have to be the instructions operating the climate control mechanism or AC.

[00:03:39] Speaker 02:
You're looking at figure 6, right?

[00:03:41] Speaker 02:
Is that what you're talking about?

[00:03:45] Speaker 02:
What are the devices on the PET mode?

[00:04:05] Speaker 00:
Right.

[00:04:06] Speaker 00:
So one possibility after, but it's not required by the claim, but one possibility after the

[00:04:13] Speaker 00:
battery charge level reaches the predetermined level is that the user could be notified that there is a specific amount that the charge is limited and that you have to make a decision at that point of what to do next.

[00:04:26] Speaker 00:
But nothing's required to happen next.

[00:04:28] Speaker 00:
But my point is that it's giving me meaning.

[00:04:30] Speaker 04:
I'm a little confused as to why you're going through all these different examples of possibilities of what can happen next after the battery goes down to a certain level.

[00:04:41] Speaker 04:
I mean, you're giving examples of what would satisfy the board's constructions of taking into account the predetermined charge level.

[00:04:56] Speaker 04:
But if your position is correct,

[00:04:58] Speaker 04:
You don't have to take into account anything next in this claim, so there's no need to be going through all these different possibilities that you're identifying.

[00:05:07] Speaker 00:
These examples are to show why the claim has meaning even without the instructions operating the climate control mechanism being what considers or takes into account the predetermined level.

[00:05:17] Speaker 04:
I thought your position was all that is required by this claim is very little.

[00:05:22] Speaker 04:
The air conditioning has to remain on

[00:05:25] Speaker 04:
up until the point the battery goes down to a particular predetermined level.

[00:05:30] Speaker 04:
And that's it.

[00:05:31] Speaker 04:
That's true.

[00:05:32] Speaker 04:
And then everything you're talking about is what could possibly happen after that.

[00:05:37] Speaker 04:
And none of that matters according to your position in the claim, right?

[00:05:40] Speaker 00:
That's true.

[00:05:41] Speaker 00:
I'm giving these examples to show why it's important that the user has the assurance that the battery will be maintained at least until it gets to that level.

[00:05:50] Speaker 00:
But I hear your point, and I can move on to my next point.

[00:05:55] Speaker 00:
The board required that it's not just any instructions are taking into account the predetermined battery level.

[00:06:05] Speaker 00:
It's the instructions that operate the climate control mechanism that takes into consideration the predetermined battery level.

[00:06:11] Speaker 00:
And my point is it doesn't have to be those instructions that are operating the climate control mechanism.

[00:06:17] Speaker 00:
It could be some other aspect of the system.

[00:06:19] Speaker 00:
It could be a user.

[00:06:22] Speaker 00:
But it doesn't have to be those specific instructions.

[00:06:25] Speaker 03:
Could we talk about claims eight and 14?

[00:06:28] Speaker 03:
I mean, for example, on claim eight, having difficulty seeing where the threshold amount of time limitation is satisfied.

[00:06:44] Speaker 00:
For the board's construction does require

[00:06:51] Speaker 00:
And we believe in error that a specific time calculation is made.

[00:06:57] Speaker 00:
And if you look at the claim language, it's until it is determined, for example, for eight, until it is determined that the selected mode of operation cannot be maintained by the amount of charge residing in the battery for more than a threshold amount of time.

[00:07:13] Speaker 00:
It's an undefined threshold amount of time.

[00:07:15] Speaker 00:
And what's important and what's disclosed in the specification is the threshold battery level.

[00:07:23] Speaker 00:
And before we get to that point, also, even though it's not an explicit claim construction in the claim construction section as with claim one, the board carried through that requirement that it's the instructions operating the climate control mechanism that take into account that predetermined level, which is improper, especially in the method claims where instructions are not

[00:07:49] Speaker 00:
part of a claim limitation.

[00:07:51] Speaker 04:
Can I have you try again?

[00:07:52] Speaker 04:
I mean, let's just say right now that I understand this claim limitation in claim eight as requiring some instructions, or there's no instructions in it.

[00:08:09] Speaker 04:
You've just got to keep the air conditioning on until a certain point when

[00:08:16] Speaker 04:
it is determined that there's only a certain amount of time left before the battery is going to run out.

[00:08:22] Speaker 04:
And so now it's a little bit of a race against the clock to get back to the car before your pet overheats inside the car.

[00:08:32] Speaker 04:
That's a wrong understanding of the claim?

[00:08:35] Speaker 00:
Well, the claim is focused on determining the remaining charge that will allow the climate control mechanism to operate for some undefined threshold amount of time.

[00:08:45] Speaker 00:
And that threshold amount of time is not disclosed in the patent claims or specifications.

[00:08:51] Speaker 04:
But the concept of it's related to time, that there's an amount of time remaining that you can keep the air conditioning on.

[00:09:00] Speaker 00:
So if your honors agree that there is a requirement, that there's an actual determination of time, which we disagree with, then.

[00:09:09] Speaker 03:
You lose.

[00:09:13] Speaker 00:
Say again?

[00:09:14] Speaker 03:
You lose.

[00:09:15] Speaker 00:
No.

[00:09:16] Speaker 00:
No, Your Honor.

[00:09:17] Speaker 00:
I would say if there's any aspect of the court's claims, of the board's claims... What reference is it?

[00:09:24] Speaker 04:
It's Hibbe?

[00:09:25] Speaker 00:
Hibbe.

[00:09:26] Speaker 04:
Is Hibbe the prior art reference?

[00:09:28] Speaker 00:
Yes.

[00:09:28] Speaker 04:
So to what extent does Hibbe disclose this concept of keeping the air conditioning on until there's only a set amount of time left that you can keep the air conditioning on?

[00:09:40] Speaker 00:
So in Hibbe,

[00:09:42] Speaker 00:
It discloses about the volt meter requiring a predetermined level of charge below which the battery would be considered low.

[00:09:50] Speaker 00:
And it is a method claim.

[00:09:54] Speaker 00:
So Hebe isn't required to, assuming that it's required, that an actual amount of time is determined.

[00:09:59] Speaker 00:
It doesn't have to be the system itself.

[00:10:02] Speaker 00:
And our expert provided testimony that was not considered or discussed by the board at all that said that a person of ordinary skill and the art would know that you take that threshold amount

[00:10:12] Speaker 00:
a battery divided by the charge usage, and you come up with the threshold time limit that's left for the climate control mechanism to operate.

[00:10:23] Speaker 00:
And that wasn't addressed by the board.

[00:10:25] Speaker 04:
We don't know the so-called discharge rate that's occurring inside the car, so we can't necessarily inhibit, as far as I can tell, translate

[00:10:34] Speaker 04:
that battery level reading into an amount of time left that you can keep the air conditioning on.

[00:10:44] Speaker 04:
I mean, there's a gap in what's going on here.

[00:10:47] Speaker 04:
I mean, if in fact this claim requires some kind of determination that there's going to be a set amount of time remaining that the AC can stay on, Hebe doesn't speak to that.

[00:11:04] Speaker 04:
And the fact that you might be able to convert the low battery level reading in Hiby into an amount of time, Hiby doesn't contemplate that, nor does it contemplate or express how you would go about getting the discharge rate inside of any car.

[00:11:23] Speaker 00:
Well, that's what our expert addressed.

[00:11:27] Speaker 04:
I mean, that sounds like an obvious modification theory, not necessarily that Hiby has

[00:11:34] Speaker 04:
is disclosing and contemplating in this very fact?

[00:11:39] Speaker 00:
Well, Tesla's expert gave testimony that a person of ordinary skill and the art would be able to make that calculation based on using the Hebe system.

[00:11:47] Speaker 00:
That testimony was not set forth in particular to this board's claim construction, because this was a claim construction that first came out in the final written decision.

[00:11:59] Speaker 00:
But he nonetheless gave testimony that was not considered and was an error by the board.

[00:12:03] Speaker 00:
by not addressing it in the final written decision, not a person of ordinary skill in the art would be able to make that calculation.

[00:12:09] Speaker 00:
But it's not to say that the record wouldn't benefit from additional testimony from an expert or argument from attorneys based on this claim construction that was new in the final written decision and thus was an error.

[00:12:24] Speaker 00:
So my point would be if your honors disagree with any aspect of the board's construction that was only first discussed

[00:12:31] Speaker 00:
disclosed to the parties in the final written decision, it should be vacated and remanded.

[00:12:35] Speaker 00:
For example, the carryover from claim one, that it's the climate control mechanism that's considering the predetermined battery level is an error.

[00:12:44] Speaker 00:
And for that reason, it should be remanded.

[00:12:47] Speaker 00:
But also the fact that the board determined claim construction in the final written decision without giving the opportunity to the parties to address that claim construction is a violation of the APA.

[00:12:59] Speaker 00:
And it's pretty clear, in our opinion.

[00:13:02] Speaker 04:
Well, maybe the board, once again, just did plain and ordinary meaning.

[00:13:06] Speaker 04:
Well, so I... I saw the threshold amount of time in the claim and said, where's the threshold amount of time consideration, and maybe I don't see it.

[00:13:14] Speaker 00:
Well, so it's the both, the threshold amount of time, as well as this correlation between the climate control mechanism taking into consideration that predetermined level.

[00:13:27] Speaker 00:
I will note that...

[00:13:31] Speaker 00:
If the board construes the claim, even if it's giving additional meaning that it claims to be plain and ordinary meaning, if it is different from what the parties understand or what the claim term words it means, I would say that's claim construction because it's defining the scope of the claim.

[00:13:47] Speaker 00:
And I will note that Charge Fusion also understood the claim to not require that the system calculate a specific charge, a specific time left

[00:13:59] Speaker 00:
to run the climate control mechanism.

[00:14:01] Speaker 00:
In its infringement contentions, it mapped this claim eight to a portion of, sorry, to Tesla's Model 3 just disclosing the percent of battery left.

[00:14:15] Speaker 00:
So in its mapping, it did not identify anywhere in Tesla's vehicle that a time allotment was required, that an actual calculation of the time remaining is required.

[00:14:27] Speaker 00:
So they understood it the same as we did, the board construed it differently.

[00:14:31] Speaker 00:
So even if they're claiming that's the plain and ordinary meaning, we disagree.

[00:14:34] Speaker 00:
So for that reason, both aspects of the claim construction was incorrect and the decision should be vacated and remanded for further proceedings.

[00:14:48] Speaker 00:
And I'm seeing I'm almost out of time, but I'll just say the last point which

[00:14:53] Speaker 00:
I mentioned is that the board did not consider Tesla's expert testimony.

[00:14:58] Speaker 00:
It did credit Tesla's expert testimony with the level of the person of ordinary skill in the art, but then didn't address any of its discussion of what a person of ordinary skill in the art would understand.

[00:15:09] Speaker 00:
And that's an error.

[00:15:12] Speaker 00:
Charge fusion speculates that that's because the board discredited the testimony, but there's- I think we're out of time.

[00:15:20] Speaker 03:
Thank you.

[00:15:21] Speaker 03:
We'll give you a few minutes for a bubble.

[00:15:24] Speaker 03:
Mr. Little.

[00:15:30] Speaker 01:
Morning, Your Honors.

[00:15:31] Speaker 01:
Brad Little on behalf of the appellee.

[00:15:33] Speaker 01:
May it please the court.

[00:15:35] Speaker 01:
I want to start with Tesla's proposal.

[00:15:38] Speaker 01:
It's basically trying to remove any correlation between operating the climate control mechanism.

[00:15:45] Speaker 04:
Which claim are you talking about?

[00:15:46] Speaker 01:
I'm talking about 1, 8, and 14.

[00:15:48] Speaker 01:
They're trying to remove any correlation between

[00:15:53] Speaker 01:
And I'll start big picture, then we can focus in on each individual client.

[00:15:57] Speaker 01:
But they're trying to remove any correlation between the climate control mechanism and the battery level, or the threshold of time that the battery has left in order to operate the AC mechanism.

[00:16:09] Speaker 01:
And this is because if you look at figure.

[00:16:11] Speaker 03:
I'm not understanding.

[00:16:13] Speaker 03:
Hebe shows action based on battery charge level, right?

[00:16:21] Speaker 01:
So what HiBI does, and I'm looking at figure 5 and it's appendix 300, and what they're really relying on is just this figure 5.

[00:16:30] Speaker 01:
That's clear from the record.

[00:16:32] Speaker 01:
And what HiBI does is it goes into an in-vehicle abnormality processing mode.

[00:16:38] Speaker 01:
And all it does with a voltmeter is detect that there's a low battery

[00:16:42] Speaker 01:
And in response to that low battery, all it does is start the engine to basically make sure the battery doesn't die.

[00:16:49] Speaker 01:
It has nothing to do with the climate control mechanism.

[00:16:52] Speaker 01:
It has nothing to do with the AC.

[00:16:54] Speaker 01:
So if you look here on this chart, when it reaches the low battery, it confirms that the gear is in neutral.

[00:16:59] Speaker 01:
It starts the engine and it charges the battery and the apparatus that uses the engine starter.

[00:17:04] Speaker 03:
You mean the operation is separate from the climate control mechanism?

[00:17:08] Speaker 03:
That's your argument?

[00:17:09] Speaker 01:
It's absolutely separate from the climate control mechanism.

[00:17:12] Speaker 01:
And that's what the board found as well.

[00:17:13] Speaker 01:
The board weighed all the evidence, including expert testimony on behalf of petitioner and said it's undisputed.

[00:17:20] Speaker 01:
They actually said the words it's undisputed that there is no correlation between

[00:17:26] Speaker 01:
The climate control mechanism.

[00:17:27] Speaker 03:
If it is part of the climate control mechanism, the claim limitation in one is satisfied.

[00:17:34] Speaker 01:
I'm sorry, say that again.

[00:17:35] Speaker 03:
If it is part of the climate control mechanism, then claim one is satisfied by DB.

[00:17:44] Speaker 01:
Well, I would dispute that as well.

[00:17:46] Speaker 01:
I would say that just because it detects that there's a low battery is different

[00:17:54] Speaker 01:
than what the claim says, which is reaches a predetermined level.

[00:17:58] Speaker 01:
So low battery is not predetermined, it just means it's a low battery.

[00:18:02] Speaker 01:
And I think the board rejected this notion that a voltmeter could detect.

[00:18:06] Speaker 04:
I don't understand why low, once you hit a signal that the battery has reached a low battery level and then therefore the car takes certain action, why that doesn't count as a predetermined level of charge.

[00:18:21] Speaker 04:
I mean, I guess if you want to... B, those are right in line with each other.

[00:18:26] Speaker 01:
If you want to expand it broadly to take a broad expansive view of Hibbe, sure, but there's no instructions that operate the climate control mechanism to say that when it reaches that predetermined level, it's going to do anything.

[00:18:40] Speaker 04:
Well, that goes to a more fundamental question that I want to ask you, which is why does this claim require anything to happen?

[00:18:48] Speaker 04:
once a predetermined level is reached in the battery.

[00:18:53] Speaker 04:
That is to say, perhaps all that is required by this claim limitation, and we're talking about claim one right now only, that the air conditioning has to remain on until the battery reaches some predetermined level.

[00:19:11] Speaker 04:
And that's it.

[00:19:12] Speaker 04:
But once the predetermined level occurs,

[00:19:17] Speaker 04:
then the claim is completely open.

[00:19:19] Speaker 04:
It says nothing.

[00:19:20] Speaker 04:
There's no further limitation.

[00:19:22] Speaker 04:
And so that's why I'm concerned about the board's construction that after the predetermined level is made, the claim still requires, I don't know, the system to somehow take into account that this predetermined level has been hit.

[00:19:42] Speaker 01:
I think the board recognized that it's broad enough and that it didn't so much matter what happened after it hits the predetermined time.

[00:19:52] Speaker 04:
It seems to say that maybe the operation of the air conditioning can cease, although that's not required, or it can be altered, or a notification could be sent to the owner's phone.

[00:20:06] Speaker 04:
But nevertheless, something to the board needed to happen.

[00:20:12] Speaker 04:
once that predetermined level was hit and I don't see why that is so based on the actual language.

[00:20:18] Speaker 04:
I mean that could have been written into the claim and the claim almost suggests that there's a limitation missing because the claim could have maybe should have said oh and then once the predetermined level is hit take certain action but the claim stops before it gets to that.

[00:20:36] Speaker 04:
So if all that is required is

[00:20:39] Speaker 04:
You've got to keep the air conditioning on until some predetermined level is reached.

[00:20:44] Speaker 04:
I don't see why Hibbe doesn't disclose that when it discloses that you have the air conditioning on up until you get a low battery readout from the voltmeter.

[00:20:58] Speaker 01:
But respectful, Your Honor, I don't think that's what Hibbe discloses.

[00:21:00] Speaker 01:
It doesn't say discontinue or change.

[00:21:03] Speaker 04:
No, it doesn't need to say discontinue for purposes of matching up with this claim limitation.

[00:21:07] Speaker 04:
All it needs to say is,

[00:21:09] Speaker 04:
keeping the air conditioning on until the low battery readout is made by the voltmeter.

[00:21:15] Speaker 01:
But it doesn't even say that, Your Honor.

[00:21:17] Speaker 01:
It doesn't even say that.

[00:21:18] Speaker 01:
It says once you get to the low battery notification that's sent.

[00:21:23] Speaker 04:
So now you're disagreeing that the whole point of Hibbi is you want to protect the pet inside the car and you want to keep the air conditioning on.

[00:21:35] Speaker 04:
And even when you get to the low battery level,

[00:21:38] Speaker 04:
You still want to save the pet.

[00:21:40] Speaker 04:
So what you do, you go into abnormality mode and then you turn on the car so you can charge the car so you can keep the AC going.

[00:21:48] Speaker 04:
You're really questioning right now whether Hibbe discloses keeping the air conditioning on up until the low battery level is met?

[00:21:55] Speaker 01:
I am.

[00:21:56] Speaker 01:
Yes, your honor.

[00:21:56] Speaker 04:
Hibbe does not say that.

[00:21:57] Speaker 04:
OK, what if we disagree with you on that?

[00:22:00] Speaker 04:
What else do you have for us on claim one?

[00:22:03] Speaker 01:
Well, I think that claim one, I think what the board

[00:22:05] Speaker 01:
said in its claim construction was that the instructions are key to this issue, right?

[00:22:12] Speaker 01:
So the instructions have to take into consideration the predetermined battery level when it's operating the climate control mechanism.

[00:22:19] Speaker 01:
And Hibbe just does not have that.

[00:22:21] Speaker 04:
Well, I don't even know what that means, take into consideration.

[00:22:24] Speaker 04:
That's incredibly vague.

[00:22:26] Speaker 04:
It's practically an indefinite claim construction.

[00:22:30] Speaker 01:
Well, I think it just means that the preamble of the claim is similar to the last case we just heard, which is that there's instructions that cause a processor to do and there's certain steps that it recites.

[00:22:42] Speaker 01:
And at the end of this claim 1H, it says you have to operate the climate control mechanism until a certain point.

[00:22:48] Speaker 01:
And that certain point is when a predetermined battery level is reached.

[00:22:52] Speaker 04:
We all agree on that.

[00:22:54] Speaker 04:
OK.

[00:22:54] Speaker 04:
And that's it, period.

[00:22:56] Speaker 04:
That's all that's required by this claim limitation.

[00:22:59] Speaker 01:
Yes.

[00:22:59] Speaker 01:
And I think the board got it right when it said you must take into account because of that.

[00:23:04] Speaker 04:
No, that's extra.

[00:23:05] Speaker 04:
Now that's adding a little window dressing on top of what the claim actually requires.

[00:23:11] Speaker 04:
The claim doesn't say you must take into account.

[00:23:15] Speaker 04:
It just says you've got to keep the AC on until you reach a certain point.

[00:23:20] Speaker 01:
Yeah, which is a predetermined battery level.

[00:23:22] Speaker 01:
Yes, Your Honor.

[00:23:23] Speaker 04:
What about claims 8 and 14?

[00:23:25] Speaker 01:
So 8 and 14 are a little more specific.

[00:23:28] Speaker 01:
Claims 8 and 14 go sort of, you know, become a little more narrow than claim 1 and say that, you know, you must know sort of a specific relationship between the remaining level of charge and the battery and the amount of time the climate control mechanism can run on that remaining charge.

[00:23:47] Speaker 01:
And so I think, you know, if we're looking at what HBEE discloses, again, we're going back to the substantial evidence standard here, the board weighed

[00:23:56] Speaker 01:
all of the evidence presented and found that the Hibby's in-vehicle abnormality processing mode simply starts the engine.

[00:24:05] Speaker 01:
It has nothing to do with the climate control mechanism.

[00:24:08] Speaker 01:
It says it operated those things independently.

[00:24:11] Speaker 01:
And so based on that, we think there's no, Hibby does not render obvious this claim.

[00:24:20] Speaker 03:
You're not relying on the threshold amount of time language?

[00:24:25] Speaker 01:
Yes, your honor, in claims eight we are.

[00:24:29] Speaker 04:
It's in 14.

[00:24:32] Speaker 01:
Claim eight and 14, we are relying on threshold amount of time.

[00:24:36] Speaker 04:
The other side says they were surprised by the board's final written decision.

[00:24:43] Speaker 01:
Yes, I understand that.

[00:24:44] Speaker 01:
So regarding surprise or an unexpected claim construction, in the institution decision, the board encouraged the parties to address

[00:24:55] Speaker 01:
these specific items, the scope and the limitations surrounding these predetermined time and whether Hibbe, what Hibbe does in response to it having this low battery indication.

[00:25:10] Speaker 01:
And so I don't understand the surprise.

[00:25:13] Speaker 01:
In response to that, patent owner in its response argued that it would have to cease operation after this time

[00:25:23] Speaker 01:
And Tesla responded to that, said it could cease or change.

[00:25:28] Speaker 01:
Ultimately, the board said it didn't matter as our discussion earlier, but it's hard to understand why they're surprised when there was no opportunity to address these exact limitations.

[00:25:39] Speaker 01:
They went with plain and ordinary meaning on the claims.

[00:25:43] Speaker 01:
And I think what the board is doing here, they're not importing any sort of limitations.

[00:25:49] Speaker 01:
literally looking at the explicit limitations that are in claim 1, 8, and 14, and applying the point in an ordinary meeting.

[00:25:57] Speaker 04:
Finally, the other side said something about their expert saying something along the lines of, oh, once Hibbe knows the low battery level, that necessarily translates into a certain amount of time before the battery runs out.

[00:26:18] Speaker 01:
Yeah, I think that what we said in our brief is correct.

[00:26:23] Speaker 01:
I think the board considered that.

[00:26:26] Speaker 01:
I think that there was also some testimony during cross-examination of the expert that sort of supported our position that Hibby does not disclose these limitations.

[00:26:40] Speaker 01:
He said that basically the temperature is just maintained.

[00:26:44] Speaker 01:
He doesn't know what happens to it or it's independent

[00:26:48] Speaker 01:
of what the battery level and the climate control mechanism.

[00:26:53] Speaker 01:
Let me find the site for that for you.

[00:27:25] Speaker 01:
Well, I'll find that.

[00:27:26] Speaker 01:
Oh, it was Tesla's, we say this on our response, 43 through 44, Tesla's own expert testified.

[00:27:34] Speaker 04:
Where in the JA is this?

[00:27:38] Speaker 01:
1335 through 1336 in the appendix.

[00:27:43] Speaker 01:
And we say Tesla's expert also acknowledged that Hibbe's temperature would be maintained in the event that if the battery reaches a predetermined level because nothing changes in the selected operation of the climate control mechanism.

[00:27:55] Speaker 01:
So here we have an admission from Tesla's expert that these two things operate independently.

[00:28:01] Speaker 01:
And again, I think this is supported by figure five in the appendix 300, which shows what HIV actually discloses.

[00:28:21] Speaker 01:
And again, it's independent of

[00:28:25] Speaker 01:
the climate control mechanism, this low battery indication, and what heavies response to that, which is simply just to start the engine to charge the battery.

[00:28:34] Speaker 01:
So if there's no other questions, I'll see the rest of my time.

[00:28:37] Speaker 03:
OK, thank you.

[00:28:38] Speaker 03:
Ms.

[00:28:38] Speaker 03:
Carter, you've got two minutes.

[00:28:40] Speaker 01:
Thank you, Your Honor.

[00:28:46] Speaker 00:
I just quickly would like to address a couple of the points.

[00:28:49] Speaker 00:
The first is Charge Fusion claims it's undisputed.

[00:28:53] Speaker 00:
It agrees with the board that it was undisputed that Hebe doesn't take into account the predetermined battery level.

[00:29:02] Speaker 00:
But that was an error because the board didn't consider at all any of Tesla's expert testimony.

[00:29:08] Speaker 00:
It didn't discredit it.

[00:29:09] Speaker 00:
It didn't say we weighed the evidence and there's no serious dispute.

[00:29:12] Speaker 00:
They just said it's undisputed.

[00:29:13] Speaker 00:
So very clearly did not consider or take

[00:29:16] Speaker 00:
Or weigh the evidence as charge fusion claims, but they also overstate the the board's Institution decision with regards to claim construction the only issue that was the board asked for briefing on was whether or not Anything was required to happen after the until so did the operation need to cease did it need to change?

[00:29:38] Speaker 00:
that's the only issue binary question and that's the testimony that

[00:29:42] Speaker 00:
that expert testimony that Charge Fusion cites to is only directed to that issue, nothing else.

[00:29:48] Speaker 00:
So it only, it's not relevant to what even the board actually determined to be the correct claim limitate, the claim construction.

[00:30:01] Speaker 00:
Those were the two points I wanted to address, but if your honors have any further questions.

[00:30:06] Speaker 03:
Okay, thank you.

[00:30:07] Speaker 03:
Thank both counsel and cases.