[00:00:00] Speaker 03:
Number 181686, Dexcom ink versus Agamatrix ink.

[00:00:22] Speaker 01:
Good morning.

[00:00:22] Speaker 03:
Well, just hold on a moment.

[00:00:24] Speaker 03:
Okay, alright.

[00:00:25] Speaker 03:
Is your name pronounced D?

[00:00:28] Speaker 01:
Yes, your honor.

[00:00:29] Speaker 01:
Sona D for Dexcom.

[00:00:31] Speaker 01:
Good morning.

[00:00:31] Speaker 01:
May it please the court.

[00:00:32] Speaker 01:
The error underlying the judgment in this case is rooted in claim construction, starting with the term bias potential setting.

[00:00:40] Speaker 01:
The ordinary meaning of bias potential setting is a setting of bias potential.

[00:00:45] Speaker 01:
And the parties here agree that bias potential is the voltage difference between two electrodes in a circuit.

[00:00:53] Speaker 01:
Just like a thermostat setting is a temperature setting, a bias potential setting is that voltage different setting.

[00:00:59] Speaker 03:
Let me understand this.

[00:01:01] Speaker 03:
There are two tests here which are alleged to infringe the method, correct?

[00:01:07] Speaker 01:
Correct.

[00:01:08] Speaker 03:
One is the track resistance test and the other one is the abnormal trace test, right?

[00:01:13] Speaker 01:
Yes, Your Honor.

[00:01:14] Speaker 03:
With respect to the first of those,

[00:01:17] Speaker 03:
How is it that the test derives an analyte concentration?

[00:01:21] Speaker 03:
I'm not seeing that that's the case.

[00:01:25] Speaker 01:
In the track resistance test, there is a signal taken from the first potential setting, a signal taken from the second potential setting, and then they're compared to see if there is enough of an interference in those signals to either move forward

[00:01:42] Speaker 01:
and determine analyte or not.

[00:01:44] Speaker 03:
Right, but I don't see that that's determining an analyte concentration.

[00:01:50] Speaker 01:
The two signals that are used in that test do not themselves determine analyte concentration, but the claim as written uses the deriving step to mean something different than determining analyte concentration.

[00:02:07] Speaker 01:
It basically says you derive

[00:02:10] Speaker 01:
analyte concentration by using those two signals and then you move forward to actually determine the analyte concentration.

[00:02:16] Speaker 03:
You mean even if it's just a preliminary step, it's deriving an analyte concentration?

[00:02:21] Speaker 01:
It's using the signal outputs to determine whether there's enough interference.

[00:02:26] Speaker 01:
When you look at deriving in the context of the rest of the steps in the claim, those two signals are being used in order to figure out if there is a tolerable level of interference in order to move forward with

[00:02:39] Speaker 01:
determining analyte concentration.

[00:02:41] Speaker 03:
I understand your point about that.

[00:02:42] Speaker 03:
How about the abnormal trace test?

[00:02:45] Speaker 03:
Where it seems to me that what the district court said here is that there's no infringement by the abnormal trace test because at the second stage here you're not using the data entirely from the second stage.

[00:03:06] Speaker 03:
Correct?

[00:03:06] Speaker 03:
That's what he ruled.

[00:03:07] Speaker 01:
Yes, that was the premise of the district court's decision on the abnormal trace test.

[00:03:13] Speaker 03:
So why is he wrong about that?

[00:03:15] Speaker 01:
The reason that the district court is wrong on that point is that in the abnormal trace test, we're dealing with curves that are measured at each of the potential settings and taking information from both those curves.

[00:03:29] Speaker 01:
In the abnormal trace test, in the comparing step,

[00:03:34] Speaker 01:
the curve that gives us the second signal output trace, information from that curve is being used in order to figure out if there is an interference.

[00:03:45] Speaker 01:
Correct, but it's not the only information.

[00:03:46] Speaker 01:
Not the only information.

[00:03:48] Speaker 01:
And so, because this is a comprising claim, there's nothing in the intrinsic record that forecloses one from using additional information along with the second output signal information.

[00:04:03] Speaker 01:
That doesn't erase infringement.

[00:04:05] Speaker 01:
That second output information still dictates the outcome of the comparing step and the differential measurement that is in that step.

[00:04:15] Speaker 01:
But for that second output signal, you wouldn't know if you're passing or failing in order to move forward with analyte concentration.

[00:04:24] Speaker 03:
OK, I understand.

[00:04:25] Speaker 03:
Thank you.

[00:04:31] Speaker 01:
I want to go back to bias potential setting, if I may, to make a few points on that in terms of the intrinsic record, because that is a key component of both tests that are being accused here.

[00:04:42] Speaker 01:
The intrinsic record shows that persons of skill in the art understood bias potential settings could be achieved with either open circuits or closed circuits.

[00:04:53] Speaker 01:
Both those circuits are reflected and recognized in the intrinsic record, and we see that in references such as Genshaw that were cited during prosecution and therefore part of the intrinsic record, where Genshaw recognizes that one can switch a biased potential setting to an open circuit potential setting.

[00:05:13] Speaker 01:
The district court erred on that preliminary claim construction even at the Markman stage

[00:05:20] Speaker 01:
by deviating from ordinary meaning and limiting the term to closed circuits and to the application of a set voltage.

[00:05:27] Speaker 01:
And nothing in this particular intrinsic record redefines bias potential setting away from ordinary meaning.

[00:05:35] Speaker 01:
So the two ways that we see in the case law that a specification could do that are disclaimer and lexicography.

[00:05:42] Speaker 01:
Those are classic.

[00:05:44] Speaker 01:
Agamatrix admitted during the Markman proceedings at the hearing that there's no disclaimer of open circuits.

[00:05:51] Speaker 01:
So that leaves Agamatrix with lexicography.

[00:05:53] Speaker 01:
And that's what they're arguing here on this appeal.

[00:05:57] Speaker 01:
And that resort to lexicography in order to read in.

[00:06:00] Speaker 03:
It's also a question of what's meant by an open circuit and a closed circuit.

[00:06:04] Speaker 03:
You're also arguing that there is, in fact, here not an open circuit because some current is flowing, right?

[00:06:12] Speaker 01:
Correct.

[00:06:13] Speaker 01:
Both sides experts agree that in the accused devices, the circuit is absolutely closed.

[00:06:20] Speaker 01:
There's no dispute of fact even between the experts on that.

[00:06:24] Speaker 01:
And so the fact that AgaMatrix has a closed circuit.

[00:06:28] Speaker 03:
Can you measure voltage if there's no current?

[00:06:31] Speaker 01:
You can measure voltage in an open circuit when there's no current flow.

[00:06:37] Speaker 01:
because that is potentiometry.

[00:06:40] Speaker 01:
That is a well-known method of measuring voltage from an open circuit, even when there's no current flow through the circuit as a whole.

[00:06:52] Speaker 01:
The problem with Agmatrix's lexicography argument is that it takes the definition of bias potential from the specification of the patent and suit and clip quotes a single line

[00:07:07] Speaker 01:
that talks about the voltage difference in a circuit when there is a current flow.

[00:07:13] Speaker 01:
If you take that definition, we have to look at the definition as a whole.

[00:07:17] Speaker 01:
We can't just take a line, and there's no cases from this court that allows one to take a single line from a definition and ignore the rest of the definition in the specification.

[00:07:29] Speaker 01:
That definition confirms that the bias potential and its setting is used in its ordinary sense

[00:07:35] Speaker 01:
And the line that Agamatrix quotes out is not limiting.

[00:07:40] Speaker 01:
It's including without limitation.

[00:07:43] Speaker 01:
If the patentee wanted to limit the bias potential setting to closed circuits, it would not have used that language that says you're supposed to use this in the broader ordinary sense, which is in addition to what Agamatrix says is just closed circuits.

[00:08:00] Speaker 01:
I bring this up because it shows us that the district court's importation of a closed circuit limitation from an embodiment, a figure one embodiment in the specification, which the district court itself recognized was an example, is wrong as a matter of claim construction and as a matter of science.

[00:08:22] Speaker 01:
Likewise, the district court's importation of applying a set voltage application

[00:08:30] Speaker 01:
is also wrong and unnecessary.

[00:08:33] Speaker 01:
If that's supposed to reflect a setting, having gone through this briefing, it seems that a setting is something that's readily understood by a jury.

[00:08:40] Speaker 01:
We can just call this a voltage difference setting.

[00:08:44] Speaker 01:
The problem is that Agamatrix is also arguing that this further requires applying a voltage to both electrodes, but that is not necessary to have a bias potential setting.

[00:08:55] Speaker 01:
You can have an open circuit.

[00:08:57] Speaker 01:
You can have a voltage applied to both electrodes, of course.

[00:09:01] Speaker 01:
Or you can have a voltage applied to one electrode in a closed circuit that drives the voltage of the other electrode to be exactly the same.

[00:09:10] Speaker 01:
That's a zero bias potential setting, which is what the accused devices have.

[00:09:17] Speaker 01:
So because the claim construction was erroneous on bias potential setting,

[00:09:23] Speaker 01:
That infected the entire summary judgment decision on that term.

[00:09:27] Speaker 01:
And the summary judgment on that term is also erroneous.

[00:09:31] Speaker 01:
Even under the incorrect claim construction that the district court did, which was more limiting based on embodiment, the district court didn't apply its own claim construction.

[00:09:42] Speaker 01:
To your point, Your Honor, the question of is their circuit acting like an open circuit

[00:09:51] Speaker 01:
The answer is that it is a closed circuit.

[00:09:55] Speaker 01:
And during the claim construction proceedings, the district court focused on whether a circuit is open versus closed based on whether current can flow or can't flow through it.

[00:10:07] Speaker 01:
Their closed circuit does allow some amount of current flow.

[00:10:11] Speaker 01:
And the district court nevertheless let them escape on summary judgment on this term by not applying his own claim construction

[00:10:19] Speaker 01:
that included such closed circuits within the scope of the claims terms.

[00:10:25] Speaker 01:
The district court also, yes.

[00:10:28] Speaker 03:
Is the current flow part of their measurement process?

[00:10:32] Speaker 01:
Yes, the way they have designed their closed circuit, they rely, they're scientists.

[00:10:40] Speaker 03:
In the second stage here, where?

[00:10:41] Speaker 01:
Yes, in the second stage.

[00:10:43] Speaker 01:
There's no dispute as to the first stage.

[00:10:45] Speaker 01:
They agree that the first stage is a biased potential setting.

[00:10:48] Speaker 01:
So in the second stage, their scientists and their documents show that by design, they have created a bias potential setting that drives to zero volt potential difference.

[00:11:02] Speaker 01:
That's their setting.

[00:11:04] Speaker 01:
And their scientists have said, we rely on that current flow, the small amount of current flow that goes through our circuit.

[00:11:11] Speaker 01:
That's necessary the way we've designed our devices in order for us to be able to measure

[00:11:16] Speaker 01:
the signal output at that setting.

[00:11:18] Speaker 01:
So in terms of current flow and it being necessary to measurement, that's an extra step that's not required by the district court's claim construction.

[00:11:27] Speaker 01:
But even if it were, their devices would meet that particular requirement.

[00:11:35] Speaker 03:
You want to save the rest of your time?

[00:11:37] Speaker 01:
Yes, please.

[00:11:37] Speaker 01:
Thank you.

[00:11:44] Speaker 03:
Mr. Hallberg?

[00:11:45] Speaker 00:
Your Honor, my name is Nika Aldrich.

[00:11:48] Speaker 00:
I'm an attorney at Schwabe-Williamson and Wyatt representing Aggrimatrix in this case.

[00:11:53] Speaker 00:
The district court here granted summary judgment.

[00:11:55] Speaker 03:
Could you address the point about the abnormal trace test?

[00:11:59] Speaker 03:
And the argument, as I understand it, is that there is no infringement here because it doesn't use just second stage data.

[00:12:14] Speaker 03:
for the determination that it uses additional data and they say that that's permissible under a comprising construction.

[00:12:23] Speaker 03:
Could you address that?

[00:12:24] Speaker 03:
Help me understand that.

[00:12:25] Speaker 00:
The comprising limitation at the top of the claim in the preamble doesn't suddenly defeat the fact that each limitation has to at least be satisfied.

[00:12:36] Speaker 03:
Each limitation here... Okay, so why does this limitation preclude the use of additional data?

[00:12:45] Speaker 00:
The step requires that the same first signal output and the same second signal output that are used for with respect to limitation four are used with respect to limitation five.

[00:13:02] Speaker 00:
And they haven't been able to identify a signal output that is used both in limitation four and in limitation five.

[00:13:10] Speaker 00:
In limitation four, they're saying the signal output is, I mean,

[00:13:14] Speaker 00:
brief sort of mixes up, again, different signal outputs, but they're saying, for purposes of limitation four, we're going to rely on the entire trace of current and the entire trace of voltage.

[00:13:30] Speaker 00:
Okay, that's fine.

[00:13:31] Speaker 00:
So you can have a signal output be the entire trace for both current and voltage.

[00:13:36] Speaker 00:
But then when you get to step five, you have to compare those.

[00:13:39] Speaker 00:
And if you don't,

[00:13:40] Speaker 00:
Or you have to derive a signal output, or you have to derive an analyte concentration from them.

[00:13:45] Speaker 03:
So it's not so much that there's additional data here, but that the comparison is different?

[00:13:49] Speaker 00:
Is that what you're saying?

[00:13:50] Speaker 00:
There's no comparison, first of all, of the entire signal trace versus the entire voltage trace.

[00:13:56] Speaker 00:
And then there's no derivation based on the entire current trace versus the entire voltage trace.

[00:14:05] Speaker 00:
In fact, in the reply brief, they do this chart where they try to say,

[00:14:10] Speaker 00:
that they're relying on the same signal outputs on page 30 and 31, I believe it is.

[00:14:18] Speaker 00:
But even on the top of page 30, they're saying, well, it's not actually the signal output.

[00:14:24] Speaker 00:
It's a signal output attribute.

[00:14:26] Speaker 00:
And there are two different ones that they identify, G and IT peak.

[00:14:30] Speaker 00:
And by the time they get over to page 31, they're relying on different values altogether.

[00:14:36] Speaker 00:
So it's not a matter that

[00:14:38] Speaker 00:
process can involve other steps, but it at least has to satisfy the steps that are here.

[00:14:44] Speaker 00:
And they have to identify which signal output is going to satisfy both steps four and steps five in the claim.

[00:14:53] Speaker 00:
And they've been unable to do that altogether.

[00:14:56] Speaker 00:
Does that answer your honor's question?

[00:14:58] Speaker 00:
Go ahead.

[00:14:59] Speaker 00:
Thank you, your honor.

[00:15:01] Speaker 00:
So the district court here granted summary judgment for six different reasons, and this court need not visit them all.

[00:15:06] Speaker 00:
It can affirm based on two issues.

[00:15:07] Speaker 00:
First of all, the track resistance test does not practice the deriving limitation, as Your Honor already addressed.

[00:15:14] Speaker 00:
And second, that the abnormal trace test, DEXCOM, has failed to identify two signal outputs that are used both in the deriving and the differential measurement limitations.

[00:15:24] Speaker 00:
Now, with respect to the track resistance test, the claim recites deriving an analyte concentration from the signal outputs to determine an analyte concentration.

[00:15:36] Speaker 00:
The court held that this means that the analyte concentration must be drawn from or obtained from the first and second signal outputs.

[00:15:43] Speaker 00:
Simply using the signal outputs to determine a threshold, but then actually calculating the analyte concentration from other values, does not derive the analyte concentration from those signal outputs.

[00:15:56] Speaker 00:
Certainly it doesn't derive an analyte concentration to determine an analyte concentration from those signal outputs.

[00:16:04] Speaker 00:
DEXCOM must concede that under the court's construction, the finding of non-infringement is correct.

[00:16:11] Speaker 00:
The court gave the term deriving its plain and ordinary meaning.

[00:16:14] Speaker 00:
It referred to a dictionary, after all, to understand what the plain and ordinary meaning was.

[00:16:20] Speaker 00:
Moreover, the whole purpose of the patent is to calculate, this is from the abstract, it's to calculate substantially interference-free analyte measurements by taking multiple signal outputs.

[00:16:32] Speaker 00:
The formulas in the patent show that the calculation requires using first and second signal outputs so that the signal is derived from these values.

[00:16:43] Speaker 00:
There is no lexicography that would broaden this plain and ordinary definition.

[00:16:47] Speaker 00:
The patent never uses the word deriving in relation to the sole embodiment that Dexcom relies on.

[00:16:55] Speaker 00:
Dexcom argues that deriving must mean something different from calculating.

[00:17:00] Speaker 00:
but the terms throughout the patent are used differently from each other.

[00:17:05] Speaker 00:
As used in the patent, the word calculating is always used with respect to the differential measurement.

[00:17:11] Speaker 00:
It's always calculating from the differential measurement, whereas deriving is always used with respect to the first and second signal outputs, probably because the process has to go through an additional calculation before actually getting to the final calculation

[00:17:29] Speaker 00:
when the deriving step is used.

[00:17:33] Speaker 00:
But the glucose concentration in all events is still drawn from the first and second signal outputs as the plan and ordinary meaning requires.

[00:17:45] Speaker 00:
As far as the abnormal trace test, we touched on that a little bit already, but the patents require that the first and second signal outputs are used to determine a differential measurement and then deriving a glucose concentration from the first and second signal outputs.

[00:18:00] Speaker 00:
differential measurement is defined in the patent.

[00:18:04] Speaker 00:
It's used in its plain and ordinary sense, which is, quote, the difference between multiple signal output measurements.

[00:18:11] Speaker 00:
DEXCOM's shifting arguments throughout this case continually try to recast what the first and second signal outputs are in order to mask the fact that it cannot rely on the same identified values for steps four and steps five in the, in the patent.

[00:18:28] Speaker 00:
In its reply brief, as I said, it tries to chart out the claims at the tops of page 30 and 31 and still can't rely on or identify a single signal output that it's relying on for step four and step five.

[00:18:41] Speaker 00:
In fact, between those two pages, it has identified eight different values that it wants to, at various points, say are either the first or the signal output or both.

[00:18:55] Speaker 00:
And curiously, by the time it gets to the bottom of its charting on page 31, it has decided to simply drop all of the square root symbols from its formulas.

[00:19:05] Speaker 00:
Moreover, as the court already addressed, two of the values that it relies on are not measured signal outputs at all.

[00:19:13] Speaker 00:
They're actually calculated signal outputs.

[00:19:15] Speaker 00:
So they can't qualify signal outputs under the patent, because the patent requires that they be measured signal outputs.

[00:19:22] Speaker 00:
And what they're relying on are calculated values.

[00:19:25] Speaker 00:
And in any event, it's undisputed that at least one of those values requires measurements taken at two different times.

[00:19:31] Speaker 00:
It's not even a measurement.

[00:19:32] Speaker 00:
Again, it's a calculated value.

[00:19:34] Speaker 00:
So it can't be a second signal output at a second bias potential setting.

[00:19:40] Speaker 00:
For that reason, the court should affirm the ruling as to the abnormal trace step.

[00:19:46] Speaker 00:
Now, as far as bias potential is concerned, this term has a plain and ordinary meaning in the art.

[00:19:51] Speaker 00:
And that was clear to the court.

[00:19:53] Speaker 00:
A bias potential in the field of electrochemistry is what happens when you take two electrodes and you apply a voltage difference between them in a circuit.

[00:20:03] Speaker 00:
The circuit has to involve putting them in a solution of some form where electrochemistry can occur.

[00:20:10] Speaker 00:
And the patent states that the term has its plain and ordinary meaning.

[00:20:16] Speaker 00:
And the

[00:20:20] Speaker 00:
Dexcom continually relies here on a separate circuit to complete its argument.

[00:20:27] Speaker 00:
So what happens in our product is the two electrodes are put in the solution in a circuit and the voltage is applied to both of them and that generates the electrochemical reaction.

[00:20:39] Speaker 00:
Then the circuit is opened and one of the electrodes is connected to a measurement circuit.

[00:20:45] Speaker 00:
It's a separate circuit.

[00:20:47] Speaker 00:
And that measurement circuit measures the rate at which the voltage drops off of that electrode.

[00:20:53] Speaker 00:
That electrode is no longer in a biased circuit with the first electrode.

[00:20:58] Speaker 00:
And they continually say, well, you're still applying a voltage to the first electrode.

[00:21:02] Speaker 00:
And now you have the second electrode in its own circuit.

[00:21:04] Speaker 00:
Therefore, they are in a circuit, right?

[00:21:06] Speaker 00:
No, they're not in a circuit.

[00:21:08] Speaker 00:
They are in two isolated and discrete and separate circuits at that point.

[00:21:12] Speaker 00:
And merely the fact that there's a trickle current passing through this measurement circuit

[00:21:16] Speaker 00:
doesn't mean that you have both electrodes in a given circuit with a voltage difference being applied to each of those electrodes.

[00:21:28] Speaker 00:
In fact, the voltage has been entirely removed from one of the electrodes, such that there's no longer a difference that is actually applied to both of the electrodes.

[00:21:39] Speaker 00:
And that's a fundamental requirement.

[00:21:40] Speaker 00:
The judge noted that throughout the patent, and all of the prior art that they relied upon,

[00:21:47] Speaker 00:
A bias potential is applied.

[00:21:49] Speaker 00:
It is a voltage difference that is applied to two electrodes.

[00:21:52] Speaker 00:
And as soon as you take away the bias potential from one of them and connect it to something else, you're only applying a voltage to one electrode.

[00:22:00] Speaker 00:
It's like, as my expert has repeatedly told me, it's like the sound of one hand clapping.

[00:22:05] Speaker 00:
You can't have a difference applied to two things if one of them is disconnected altogether.

[00:22:13] Speaker 00:
Arguments that DEXCOM raised through the district court proceedings are relying on trying to mix together and confuse the fact that one of these electrodes is removed and connected to a different circuit.

[00:22:26] Speaker 00:
And they're relying on what happens in that circuit to try to argue that these two electrodes are in a circuit together.

[00:22:32] Speaker 00:
They simply aren't.

[00:22:33] Speaker 00:
And the judge was able to cut through these arguments and realize what was actually happening here in both the Markman decision

[00:22:42] Speaker 00:
where he said, look, they have to be in a closed circuit, and that bias potential has to be applied.

[00:22:46] Speaker 02:
They're in the same circuit, just one piece of it's turned off.

[00:22:50] Speaker 00:
Well, I don't think they're in the same circuit at all at that point.

[00:22:53] Speaker 00:
The voltage is applied to one.

[00:22:54] Speaker 00:
That circuit is cut with respect to the other, and that one is then cut.

[00:22:59] Speaker 02:
The circuitry exists, but it's been cut, so there's no juice going to one side.

[00:23:03] Speaker 00:
Well, there's no juice going to that side.

[00:23:05] Speaker 00:
They are relying on the fact that that electrode is then connected to a measurement circuit that can measure the rate at which the

[00:23:12] Speaker 00:
the voltage drains off of that electrode, right?

[00:23:15] Speaker 00:
So they're saying, well, it's in a circuit, but it's not the same circuit as the first electrode at that point.

[00:23:20] Speaker 00:
It's in a different circuit.

[00:23:22] Speaker 00:
Yeah, OK.

[00:23:23] Speaker 00:
And so the judge, as I said, cut through this, figured out during Markman exactly what the arguments were that the parties were raising, and then applied his very rational and well thought out and very well explored Markman decision in the merits decision at summary judgment

[00:23:42] Speaker 00:
Again, the court doesn't have to get there because I think, frankly, we went on the deriving step and on the abnormal trace, the fact that they're not relying on the same signal values through each step in that claim.

[00:23:54] Speaker 00:
But to the extent the court wants to broach the bias potential issue, that's really what's going on there.

[00:24:01] Speaker 00:
I'm happy to yield the rest of my time unless the panel has any questions.

[00:24:05] Speaker 03:
OK.

[00:24:05] Speaker 00:
Thank you, Mr. Chairman.

[00:24:05] Speaker 00:
Thank you, Your Honors.

[00:24:09] Speaker 03:
Ms.

[00:24:09] Speaker 03:
Davis?

[00:24:10] Speaker 01:
Thank you, Your Honor.

[00:24:21] Speaker 01:
I want to address the abnormal trace test that council talked about during his argument.

[00:24:29] Speaker 01:
With respect to the signal output and the information that's coming from the signal outputs, the patent itself recognizes that you can have signal outputs as entire curves with multiple pieces of data and that you can then take certain pieces of information from those signal outputs.

[00:24:48] Speaker 01:
And we see that in the patent

[00:24:51] Speaker 01:
at column 10 where the patent says you can have a curve and you can take information such as the magnitude of the curve which is peak to trough or you can take information such as rate from a curve which is the slope and use that information.

[00:25:07] Speaker 01:
That is exactly what's going on in the abnormal trace test.

[00:25:11] Speaker 01:
There are two signal outputs in the two bias potential settings for our first signal output value that's being used in the

[00:25:21] Speaker 01:
comparing step, we rely on the peak of that first signal, IT peak.

[00:25:28] Speaker 01:
The second signal output that we take from the second curve is a variable called VT mobility.

[00:25:36] Speaker 01:
We take that and then we use both that information and process the VT mobility output signal into a formula

[00:25:49] Speaker 01:
which the patent recognizes broadly, formulas can be used, equations can be used in the process of comparing.

[00:25:57] Speaker 01:
There's nothing that stops that when the patent itself recognizes that you can look at the rate of a curve or a magnitude of curve before you get to the comparison step.

[00:26:06] Speaker 01:
So when counsel says, we haven't shown that you're comparing one entire curve to another entire curve, the patent doesn't even require that.

[00:26:15] Speaker 01:
It actually contemplates taking information from both curves.

[00:26:19] Speaker 01:
and comparing them.

[00:26:20] Speaker 01:
And that's what their devices do.

[00:26:23] Speaker 01:
They then take that VTMOB and plug it into a formula in order to compare against ITP, figure out the differential, and figure out whether they can move forward.

[00:26:35] Speaker 01:
So we are using the same two signal output curves.

[00:26:39] Speaker 01:
There's nothing that forecloses us in the patent or the intrinsic record or the language of the claim

[00:26:44] Speaker 01:
from using different pieces of information in order to meet those steps.

[00:26:48] Speaker 01:
And our experts have consistently done so.

[00:26:53] Speaker 01:
With respect to the track resistance test, one of the things that Council for Agamatrix said is that the district court's claim construction was based on plain meaning of deriving.

[00:27:09] Speaker 01:
And he took it from a Webster's dictionary that's not in the record.

[00:27:13] Speaker 01:
The problem is that the district court took the approach that Phillips actually admonishes against, which is starting with a dictionary and ending with the dictionary.

[00:27:23] Speaker 01:
Because what happened here is in the process, the district court overlooked embodiments that do not require calculating glucose directly from signal outputs.

[00:27:35] Speaker 01:
But that's the way both the district court and Agamatrix is arguing deriving

[00:27:40] Speaker 01:
should be interpreted.

[00:27:41] Speaker 01:
And that doesn't make sense because there are embodiments in the patent that do not require a calculation.

[00:27:48] Speaker 01:
The best way to see that is claim differentiation.

[00:27:52] Speaker 01:
Claim 53, which is the asserted independent claim in this particular case, has a deriving step.

[00:28:00] Speaker 01:
Claim 51 is essentially the same claim.

[00:28:03] Speaker 01:
All the steps line up except the deriving step is

[00:28:08] Speaker 03:
substituted with a calculating step.