[00:01:03] Speaker 00:
Good morning.

[00:01:04] Speaker 00:
I don't know if you know that, sorry to interrupt, but we don't have very many cases that revolve around means plus function claims.

[00:01:12] Speaker 00:
And by coincidence, you all and the case that follows you both involve means plus function.

[00:01:17] Speaker 00:
So that's just a coincidence for the panel today.

[00:01:21] Speaker 03:
We actually refer to it as fun.

[00:01:26] Speaker 04:
We're hoping, though, that these are structural claims, not

[00:01:28] Speaker 04:
That's my question.

[00:01:31] Speaker 04:
So we hope it's not a means plus function case.

[00:01:36] Speaker 04:
The principal error of the district court, we feel, is that it did not examine the claims with the knowledge of a skilled artisan.

[00:01:46] Speaker 04:
The court.

[00:01:47] Speaker 03:
Let me ask you sort of a housekeeping question.

[00:01:50] Speaker 03:
You should clear up for me.

[00:01:52] Speaker 03:
On page 15 of the red brief, Sienna says we made three new arguments on appeal

[00:01:58] Speaker 03:
First, the preferred embodiment describes a magnetic drive and a push-pull arrangement as part of the control.

[00:02:04] Speaker 03:
Second, the control includes both push-pull magnets and a microprocessor and other circuitry.

[00:02:13] Speaker 03:
And third, the specification sufficiently discloses the control to be structural because it refers to a drive magnet.

[00:02:22] Speaker 03:
Are those new or are they in the record below?

[00:02:25] Speaker 04:
They're in the record below.

[00:02:26] Speaker 04:
They're in the report of the expert, Dr. Smith, and it's within... Could you give me a site that would be helpful?

[00:02:37] Speaker 04:
Sure.

[00:02:37] Speaker 04:
Appendix 2108 to 23, 2146 to 51, and 2156.

[00:02:43] Speaker 04:
I'm sorry.

[00:02:45] Speaker 04:
2108.

[00:02:46] Speaker 04:
And then?

[00:02:46] Speaker 04:
210, excuse me, 2123.

[00:02:52] Speaker 04:
2146 to 2151, and 2154 to 2168.

[00:03:00] Speaker 04:
Dr. Smith's report was incorporated by reference into the initial claim construction brief, which we filed in the district report.

[00:03:07] Speaker 03:
That's a lot of pages.

[00:03:08] Speaker 03:
2108 to 2?

[00:03:15] Speaker 03:
To 2123.

[00:03:18] Speaker 03:
Can you be a little more specific?

[00:03:22] Speaker 03:
Yes.

[00:03:24] Speaker 04:
With respect to control, it is 2154 to 2157, 4591 to 4593, and 2118 to 2121.

[00:03:40] Speaker 04:
That cuts it down.

[00:03:42] Speaker 04:
The Dr. Smith's report is very informative and that's why I gave the court all the sites.

[00:03:49] Speaker 04:
It's probably about

[00:03:51] Speaker 04:
We have excerpts of probably about 20 pages total, 25 pages total of his report.

[00:03:57] Speaker 00:
Can I just ask you a housekeeping and I'd like to ask the other side as well.

[00:04:01] Speaker 00:
If hypothetically we were to affirm the dispute court that control, that the control terms in these plus function and are indefinite, does that mean all the claims would be invalid and that would end this case?

[00:04:14] Speaker 00:
Yes.

[00:04:21] Speaker 04:
As a result of the district court not applying the knowledge of a skilled artisan, the district court's constructions were overly narrow, resulting in invalidation of the 917 patent and a concession on the part of Fiber of no infringement.

[00:04:42] Speaker 04:
It's true that the specification only talks about men's mirrors, but there was other technology that was known to skilled artisans at that time.

[00:04:51] Speaker 04:
For example, liquid crystal and silicon devices.

[00:04:55] Speaker 04:
They perform the same function as a men's device.

[00:04:59] Speaker 04:
Those devices were already in existence.

[00:05:02] Speaker 04:
Skilled artisans knew how to make them.

[00:05:05] Speaker 04:
They knew how to control them.

[00:05:09] Speaker 04:
They knew that men's mirrors were controlled by microprocessors, control circuitry, and push-pull magnets or servo motors.

[00:05:17] Speaker 04:
They also knew that LCOS devices could be controlled

[00:05:20] Speaker 04:
by applying a voltage to the liquid crystal layer within the reflectable device.

[00:05:27] Speaker 04:
The invention of this patent was not MEMS mirrors, it was not LCOS devices, it was not microprocessors, it was not control circuitry, push-pull magnets, or anything else.

[00:05:38] Speaker 04:
The invention of the 917 patent was using closed-loop feedback, constant feedback,

[00:05:45] Speaker 04:
on an all-optical reflective beam directing device so that the optical beam would maintain its current alignment.

[00:05:55] Speaker 04:
And that was an important invention because the patentees recognized that the optical signals had a tendency to drift due to vibrations, temperature variations, and just simply the wearing of the devices themselves.

[00:06:14] Speaker 04:
closed loop feedback kept the optical beams aligned properly so that the signals could be optimized during the switching phase.

[00:06:23] Speaker 03:
But each of the assertive claims of 917 has functions, right?

[00:06:31] Speaker 03:
Aligning a mirror or positioning a beam directing device.

[00:06:35] Speaker 03:
And isn't that true?

[00:06:38] Speaker 03:
Doesn't that require a corresponding structure?

[00:06:41] Speaker 04:
Yes, and there is a corresponding structure in

[00:06:44] Speaker 04:
the 917 and the 348 patent, which was incorporated by reference in two places during the 917 patent.

[00:06:51] Speaker 03:
So does that make it a means plus function?

[00:06:55] Speaker 03:
Pardon me?

[00:06:56] Speaker 03:
You said yes.

[00:06:57] Speaker 03:
So does that make it a means plus function?

[00:06:59] Speaker 04:
No, because there's enough structure within the disclosures of the 917 patent and the 348 patent.

[00:07:08] Speaker 02:
Where in the 917 is there structure?

[00:07:24] Speaker 04:
In column one, lines 47 to 54, briefly in accordance of the invention and improved optical light transmission switch, employs a microelectromechanical movable mirror assembly with associated electromagnetic coils mounted in a package and preferably including control LEDs with both drive and LED signals being supplied through a wiring harness.

[00:07:54] Speaker 04:
What is the structure for control?

[00:07:58] Speaker 04:
Structure for control is the magnet coils, the electromagnetic coils mounted in the package and preferably including control LEDs with both drive and LED signals being supplied through a wiring harness, the circuitry.

[00:08:24] Speaker 04:
There's an incorporation by reference in column five to the 348 patent.

[00:08:33] Speaker 01:
And the 348 patent talks about a microprocessor.

[00:08:36] Speaker 02:
I'm not interested in 348 patent.

[00:08:38] Speaker 02:
I don't think you can import that structure into this claim.

[00:08:41] Speaker 02:
Is this summary of the invention here you're talking about the only thing in the 917 patent that describes control?

[00:08:50] Speaker 04:
In column eight, lines 40 to 45.

[00:08:55] Speaker 04:
For example, magnet and air coil locations other than those described above can be employed as long as appropriate currents can be applied by means of control 100 to the air coils to move the gimbled mirror to a desired orientation.

[00:09:09] Speaker 01:
So the magnet and the air coil locations and all that stuff are not the control?

[00:09:14] Speaker 04:
It is part of the control.

[00:09:16] Speaker 04:
It's what moves and actuates the mirror itself.

[00:09:22] Speaker 02:
But then it's separately described to control.

[00:09:25] Speaker 02:
by means of control and control 100.

[00:09:28] Speaker 02:
Yes.

[00:09:29] Speaker 02:
And what is control 100?

[00:09:30] Speaker 01:
The control is the microprocessor that receives the signals from the data gathering and transmission element.

[00:09:36] Speaker 01:
Where in the specification does it show that?

[00:09:38] Speaker 01:
Is control 100, is that somewhere in one of these drawings?

[00:09:44] Speaker 04:
It is the microprocessor and the control circuitry

[00:09:53] Speaker 01:
Where does the specification in figure 7A define control as the microprocessor?

[00:09:59] Speaker 01:
It's the box.

[00:10:04] Speaker 04:
But a person with ordinary skill in the art would know that the control encompasses a microprocessor.

[00:10:09] Speaker 04:
It's a box.

[00:10:10] Speaker 04:
Pardon me?

[00:10:10] Speaker 02:
It's a box.

[00:10:12] Speaker 02:
It doesn't even say it's a microprocessor.

[00:10:14] Speaker 02:
Is there anything in the specification that says control 100 is a microprocessor?

[00:10:23] Speaker 04:
Column 7, line 54 says the control system.

[00:10:28] Speaker 04:
Can be similar to that described in the 348 patent.

[00:10:31] Speaker 04:
In the 348 patent, discusses microprocessors, servo control.

[00:10:36] Speaker 00:
We're circling back to this incorporation by reference.

[00:10:39] Speaker 00:
Now, in red brief, page 26, they cite a case called default proof versus home depot, which states that material incorporated by reference cannot provide the corresponding structure necessary to satisfy the definiteness requirement for meets plus function clause.

[00:10:58] Speaker 00:
And I didn't see any response in gray to that position or what that case stands for.

[00:11:05] Speaker 04:
In the Callaway decision, this court said that subject matter could be incorporated by reference.

[00:11:13] Speaker 04:
A person of ordinary skill in the arc would know to look for the control mechanism in the 348 patent and find it.

[00:11:21] Speaker 04:
So having it specifically outlined is not necessary.

[00:11:24] Speaker 04:
The fact that they identified subject matter

[00:11:27] Speaker 04:
of the 3-4-8 patent that deals with control is sufficient under calorie.

[00:11:33] Speaker 00:
You're into your rebuttal, why don't we hear from the other side.

[00:11:36] Speaker 00:
Say that again.

[00:11:41] Speaker 00:
You're into your rebuttal time, so why don't you sit down and we'll hear the other side and we'll sit at the time.

[00:11:59] Speaker 05:
Thank you, Your Honors, and may it please the court.

[00:12:01] Speaker 00:
Let me just ask you the same question I started with with your friend, which is if we affirm that just your court to control means is mean plus function and definite, all of your claims go away here, as in that, correct?

[00:12:15] Speaker 05:
That's correct, Your Honor, and the same applies to the data gathering and transmission element.

[00:12:19] Speaker 05:
If you affirm that that is means plus function, that also resolves all asserted claims in the case.

[00:12:30] Speaker 03:
The right way, footnote four, you say to the extent of district court's analysis for this rather determined, contains some technical error, such error was harmless.

[00:12:44] Speaker 03:
Where's that technical error?

[00:12:48] Speaker 03:
Why do you, or put it another way, why is that there?

[00:12:53] Speaker 03:
Is there something you believe that district court got wrong or like to understand?

[00:12:58] Speaker 05:
I know, Your Honor.

[00:13:00] Speaker 05:
In their opening brief, they cite the zero-click case, and they contend that the district court did not apply a full-size analysis.

[00:13:09] Speaker 05:
So we disagree that that's a case we think the district court applied a proper analysis, but in any event, it's harmless based on the record we have.

[00:13:17] Speaker 05:
And I want to follow up on both means-plus-function claims, which was touched upon a little bit in my friend's argument, and that is it's important to note at the outset

[00:13:28] Speaker 05:
that the focus of the first part of the Means Plus Function Inquiry is whether or not the claim term itself connotes sufficient structure to take it out of the ambit of 112.6.

[00:13:44] Speaker 05:
Now, at best, what Appellant is trying to do is point to some collection of parts that it can find that it contains, performs the recited function, or in some cases, even a different function.

[00:13:58] Speaker 05:
But they point to no evidence that the term control or that the term data gathering and transmission element were ever used or described in a way that imparts structure to those terms.

[00:14:12] Speaker 05:
And we think the evidence is overwhelming that these terms do not promote sufficiently definite structure and therefore means less function.

[00:14:20] Speaker 05:
So starting with the control term.

[00:14:22] Speaker 02:
What did they describe, I think, for control at least, they're relying on box 100, which isn't really further explained.

[00:14:29] Speaker 02:
But what if they said box 100 can be accomplished by a microprocessor or a circuit?

[00:14:35] Speaker 05:
Well, interestingly, if you look at their reply with the great brief at page 6,

[00:14:45] Speaker 05:
I understand that.

[00:14:46] Speaker 02:
I'm asking you a hypothetical.

[00:14:47] Speaker 02:
If they define box 100 can be performed either by a microprocessor or a physical circuit, would that be sufficient structure for control?

[00:14:56] Speaker 05:
No, it wouldn't, your honor.

[00:14:57] Speaker 05:
And I'll tell you why.

[00:14:59] Speaker 05:
There are these lines of cases out there that talk about circuit.

[00:15:02] Speaker 05:
And on appeal, they're trying to bring those cases in and say, well, ignore the term control.

[00:15:07] Speaker 05:
And ignore this court's precedent, such as in Toro, Williamson, and recently, this court's decision in MTPB, Ayahuasca.

[00:15:15] Speaker 05:
That came after the breaking was made in this case.

[00:15:18] Speaker 05:
And that's at 933 after 1336.

[00:15:21] Speaker 05:
Forget the cases that actually look at the term control and look at these circuit cases.

[00:15:28] Speaker 05:
But those circuit cases are distinguishable for at least three reasons.

[00:15:33] Speaker 05:
One, in those cases, talking about a circuit,

[00:15:36] Speaker 05:
there's a known definition for what a circuit is.

[00:15:42] Speaker 05:
But in those cases, what this court has said is that, yes, we'll start with the recognition that it's a known structure, but that's not good enough.

[00:15:53] Speaker 05:
You have to go beyond that and describe its operation sufficiently that we know how it's accomplishing that function.

[00:16:02] Speaker 05:
And what we have here is no description

[00:16:06] Speaker 05:
of how that's performed operationally in a way that would impart structure to the term.

[00:16:10] Speaker 05:
And those cases also apply a strong presumption that are pre-Williamson strong presumption against means plus function.

[00:16:17] Speaker 05:
So we have none of those things here.

[00:16:20] Speaker 05:
If they had said there's a microprocessor in the box, you would have to look to see, OK, well, does it give you any more indication that there's some structure here?

[00:16:33] Speaker 05:
We know that saying microprocessor isn't a structure.

[00:16:36] Speaker 05:
A microprocessor is a structure.

[00:16:38] Speaker 05:
All means plus function claims have some sort of structure.

[00:16:42] Speaker 05:
But the way the specification is here, even if there was a microprocessor.

[00:16:46] Speaker 02:
I don't feel like you're really answering my question.

[00:16:48] Speaker 02:
Let's look at the claim, and where it says a control operative, we replace control with the word microprocessor.

[00:16:55] Speaker 02:
And then it tells you what the microprocessor is going to do.

[00:16:59] Speaker 02:
And it's going to do, I guess, three different kinds of positioning.

[00:17:03] Speaker 02:
using the prior leaders or whatever that are described behind the plan.

[00:17:09] Speaker 02:
Why isn't that microprocessor, along with what is this probably very simple algorithm of what it's going to do, sufficient structure, and that replacing control of the microprocessor?

[00:17:22] Speaker 05:
Your Honor, we would still be in a world of purely functional claiming.

[00:17:26] Speaker 05:
Just because they say that there's a microprocessor, it's still acting as a placeholder

[00:17:33] Speaker 05:
a recitation for performing the recited function.

[00:17:38] Speaker 05:
There's no, you could then apply any processor that can perform the function.

[00:17:44] Speaker 05:
You would be able to capture that and you can, that would encompass, there's little bounds to what that would be.

[00:17:53] Speaker 05:
So.

[00:17:54] Speaker 02:
What do you mean there's little bounds?

[00:17:55] Speaker 02:
It has to be a microprocessor.

[00:17:56] Speaker 02:
It can't be a physical circuit.

[00:17:58] Speaker 05:
Right, I mean, you could say anything with a microprocessor, computers, anything that could have a microprocessor, you could all of a sudden say, well, that could fall within the claim.

[00:18:11] Speaker 02:
Then you rewrite this claim using a microprocessor that would be sufficient.

[00:18:15] Speaker 02:
It sounds to me like you're saying whenever it's a computer-implemented function, it's always going to be 112f.

[00:18:21] Speaker 02:
And that isn't consistent with our case law, is it?

[00:18:24] Speaker 05:
Well, here, it could, in some situations, if you have a computer, that might be sufficient.

[00:18:31] Speaker 05:
In the Inventio case, you had a computer, but it talked about the internal components.

[00:18:38] Speaker 05:
It talked about what those structures actually were.

[00:18:42] Speaker 05:
And it talked about how that operation occurred.

[00:18:46] Speaker 05:
So it's not enough just to have

[00:18:49] Speaker 05:
a bare microprocessor in the context of this claim, because it's just being recited functionally.

[00:18:56] Speaker 05:
So we would submit that that wouldn't be sufficient.

[00:18:58] Speaker 05:
But in any event, we don't have that here.

[00:19:00] Speaker 05:
All we're left with is a term control.

[00:19:03] Speaker 02:
I'm still confused if you cite a microprocessor, what more you have to do to say a microprocessor is going to do these kind of functions.

[00:19:13] Speaker 02:
Isn't that how you write?

[00:19:14] Speaker 02:
computer implementing clients, as you say, there's a computer that's going to perform steps one, two, three, and four.

[00:19:22] Speaker 05:
It could be the case, Your Honor, that if it was a microprocessor and looking at the specification,

[00:19:33] Speaker 02:
I mean, a microprocessor is a physical object.

[00:19:37] Speaker 02:
It is not a kind of Knox word like controller or stuff like that that can be any number of physical items.

[00:19:45] Speaker 02:
I don't really understand why your argument that they didn't have to recite the different parts of the microprocessor that are going to do the specific instructions.

[00:19:55] Speaker 02:
I mean, is it really that detailed of a requirement to get it out of 112F?

[00:20:00] Speaker 02:
I don't think it's black and white, Your Honor.

[00:20:02] Speaker 02:
I mean, it sounds to me like you're trying to say that we should extend 112 out to any time they use the word microprocessor.

[00:20:09] Speaker 05:
I'm not suggesting that, Your Honor.

[00:20:10] Speaker 05:
I'm suggesting that because they just use the term control, which under this court's precedent, Toro will understand.

[00:20:16] Speaker 02:
I understand that.

[00:20:17] Speaker 02:
I mean, we've been talking for at least the last five minutes about a hypothetical that I posed to you that you don't seem to be answering about whether microprocessor is actual structure that would take it out of 112 out.

[00:20:29] Speaker 05:
And I think it would certainly be a closer case there.

[00:20:34] Speaker 05:
And you could have very solid arguments about why you have structure there.

[00:20:38] Speaker 05:
The term itself has structure.

[00:20:40] Speaker 05:
All I'm saying is we don't have that here, so it's hard to come to a definitive answer on that hypothetical.

[00:20:45] Speaker 05:
But I think I can see that it could be the case that that wouldn't be Niemann's function in that case.

[00:20:52] Speaker 03:
I suppose your argument would be closer to the machine learning

[00:20:59] Speaker 03:
black box cases where the patentee doesn't actually know what goes on in that black box because the machine is teaching itself as it goes along.

[00:21:13] Speaker 05:
Yeah, I mean, we literally here just have a box.

[00:21:17] Speaker 05:
That's all we have.

[00:21:19] Speaker 05:
We don't have anything telling us what that structure is.

[00:21:23] Speaker 05:
So when you're trying to decide whether or not control can have sufficiently definite structure, you don't have any structural definition or any impartial structure there.

[00:21:34] Speaker 05:
So we think this clearly falls in line with cases like Toral, like Williamson, like MTB, all of the claim terms that have the term control in it, and determine that those are means plus functions.

[00:21:46] Speaker 02:
What if we are hypothetically in an area of R, and again, this is hypothetical, so listen,

[00:21:51] Speaker 02:
where control is known by skilled artisans as it's indicating two different ways of doing things.

[00:21:59] Speaker 02:
There's only two ways of doing it, and they're both physical structures, and they want to capture both by using that word.

[00:22:06] Speaker 02:
Is that, in that instance, is control sufficient to get you out of 112F?

[00:22:12] Speaker 05:
If there was evidence that that connoted sufficiently definite structure, which I think you're suggesting, Judge Hughes?

[00:22:18] Speaker 05:
then that could be the case, that it would be out of the, because what you would have there was something where, yes, this is sufficiently known.

[00:22:25] Speaker 05:
Everyone knows what this is.

[00:22:27] Speaker 05:
So therefore, it's not a means plus function.

[00:22:30] Speaker 02:
We just don't have that here.

[00:22:32] Speaker 02:
So what if in this case, everybody would know when you use the word control to move these mirrors around, there are only two ways to do it.

[00:22:39] Speaker 02:
Either you do it with a physical circuit or you do it with a microprocessor.

[00:22:45] Speaker 02:
I'm not saying that I agree with that contention.

[00:22:48] Speaker 02:
But if that were the case, that control in the context of this field only meant either a physical circuit or a microprocessor, and maybe I'm being stupid, and those are actually the same things, and collapse on each other in some sense, I don't know, I'm an English major.

[00:23:02] Speaker 02:
But if there's only two possible ways to define control, and they're both physical structures, does that make control no longer a 112f term?

[00:23:13] Speaker 05:
It's possible, but again, you have to look at

[00:23:15] Speaker 05:
when you're saying there's these two things that can do it.

[00:23:18] Speaker 03:
Well, you're in the record, you have an affidavit of an expert, which is unchallenged.

[00:23:22] Speaker 03:
And the affidavit says, you only have Control A and Control B. And Control A is done with a physical structure, and Control B is done with something else.

[00:23:35] Speaker 03:
And nobody challenges that those are the underlying facts.

[00:23:38] Speaker 03:
I think that's really, Judge Hughes, hypothetical to you.

[00:23:43] Speaker 03:
at that point when it says the control is control A, or it says control B, or it says all available controls, which is only A or B. So it's a limited universe at that point.

[00:24:03] Speaker 05:
Yeah, yes, your honor.

[00:24:05] Speaker 05:
If you look at that, and that was telling you there's this class of structures that everybody knows,

[00:24:11] Speaker 05:
is what control is connoting, then yes, that would be a case.

[00:24:17] Speaker 05:
Except if when you look at what those two ways are, if those two ways themselves are just functional or just placeholder box placeholders, then you could say, perhaps not because you still have functional claiming at that point, you're still not having the universe of what have I pulled in.

[00:24:34] Speaker 05:
And that's what 112.6 is designed to prevent, that unlimited functional claiming.

[00:24:39] Speaker 05:
I'd just like to turn really quick with the time I have left, Your Honors, to data gathering and transmission element.

[00:24:44] Speaker 05:
We think here the analysis is very straightforward.

[00:24:48] Speaker 05:
You have a term, data gathering and transmission element, that contains a nonce word element that this court has repeatedly recognized to be a nonce word.

[00:24:56] Speaker 05:
When you look at the rest of the claim, you have data gathering and transmission.

[00:25:00] Speaker 05:
That modifier is purely functional.

[00:25:02] Speaker 05:
So nothing about that is imparting structure to the claim term.

[00:25:07] Speaker 05:
And so you then look at the specification and say, maybe the specification can tell me what this term means or the structure.

[00:25:13] Speaker 05:
You won't find that term in the specification at all.

[00:25:16] Speaker 05:
It's just not there.

[00:25:16] Speaker 05:
No part of that term is there.

[00:25:20] Speaker 05:
What they're apparently trying to do is point to various things in the specification that might perform that function.

[00:25:30] Speaker 05:
This is clearly addressed by the MTD case, where this court says, when you have a functional term, you could say that 112.6 doesn't apply if the penalty acts as a lexicographer and expresses a clear intent to define it structurally.

[00:25:49] Speaker 05:
Not only do we not have that here, Your Honors, we just don't have the use of the term at all.

[00:25:53] Speaker 05:
And in fact, if you look to the prior art, if you look to the prosecution history, if you look at all the extrinsic evidence, including their expert testimony, you will never find the use of the term data gathering and transmission element anywhere.

[00:26:07] Speaker 05:
It's like the Diebold case that this court decided last year where the court said, if the term checks standby unit,

[00:26:17] Speaker 05:
a term that was coined by the inventor for the purpose of claiming his invention.

[00:26:22] Speaker 05:
And that's the situation we have here.

[00:26:24] Speaker 05:
It's Wheelhouse 112.6 functional claiming that nowhere tells you that it's structural or imparts any structure.

[00:26:35] Speaker 05:
There are no other questions around?

[00:26:36] Speaker 05:
Thank you.

[00:26:37] Speaker 05:
Thank you, donors.

[00:26:50] Speaker 00:
Four and a half minutes, sir.

[00:26:54] Speaker 03:
OK.

[00:26:54] Speaker 03:
The last argument, fortunately, made by your friend, data gathering and transmission.

[00:27:02] Speaker 03:
Yes.

[00:27:02] Speaker 03:
I noted that at page 41 and following in the blue brief, you make an argument on data gathering and transmission.

[00:27:13] Speaker 03:
But you raised passages from the spec describing the LED.

[00:27:19] Speaker 03:
But neither passage mentions either the term data gathering and transmission element, nor does either one discuss the transmission of data.

[00:27:31] Speaker 03:
I understand what you say.

[00:27:32] Speaker 04:
I'll look at the whole context.

[00:27:34] Speaker 04:
That's true.

[00:27:34] Speaker 04:
I mean, you've got to look at this specification.

[00:27:37] Speaker 04:
You've got to look at the claims with the eyes of a skilled partisan.

[00:27:41] Speaker 04:
And I don't think the district court has done that.

[00:27:44] Speaker 04:
A data gathering and transmission element, first off, it gathers data.

[00:27:51] Speaker 04:
What does that mean to a skilled artisan?

[00:27:52] Speaker 04:
We're talking about a detector in the context of fiber optic switching devices.

[00:27:58] Speaker 04:
In a transmission element, the transmission element transmits the data that's been gathered to the control, and the transmission element is a circuit.

[00:28:11] Speaker 04:
It's a simple circuit after the information that's received by the detector is converted to an electrical signal from a light signal to an electrical signal.

[00:28:24] Speaker 04:
That electrical information is passed down to the controller and the controller is the microprocessor coupled with circuitry that goes up to the actuators which is also part of the control that moves the mirrors

[00:28:39] Speaker 04:
Or, in the case of an LCOS device, applies a charge to the liquid crystal layer, which moves the molecules and causes the reflective properties of the liquid crystal device to divert the beams of the target.

[00:28:54] Speaker 04:
And that's what's in the mind of a skilled artisan when a skilled artisan reads this.

[00:29:02] Speaker 03:
Give me the exact page, just one page, where your expert says that.

[00:29:10] Speaker 03:
For data gathering and transmission element?

[00:29:13] Speaker 03:
Just the one page where they say that.

[00:29:23] Speaker 04:
I'd like to have a little extra time to do this, but... We all would.

[00:29:28] Speaker 04:
I know.

[00:29:37] Speaker 03:
I'd like to have one case all day long or anything.

[00:29:48] Speaker 04:
Well, I can tell you that starting at page 2159 through

[00:30:08] Speaker 04:
There's discussions regarding the data gathering and transmission element.

[00:30:20] Speaker 03:
On 56 of the document, 2160, you have to see the discussion, but it doesn't seem to capture what you're saying in your argument.

[00:30:36] Speaker 04:
patent is discussed in paragraph 148, and I know Judge Hughes is not a big fan of the 348 patent at this point in time.

[00:30:45] Speaker 03:
Well, the law doesn't seem to be a big fan of the 348 patent.

[00:30:48] Speaker 04:
Excuse me?

[00:30:48] Speaker 04:
I said the law doesn't seem to be a big fan of the 348 patent.

[00:30:52] Speaker 04:
I think the Callaway decision is contrary to that, Your Honor.

[00:30:57] Speaker 04:
But the

[00:31:04] Speaker 04:
Data gathering and transmission element is discussed.

[00:31:14] Speaker 04:
In column three, the apparatus also includes radiation responsive means, having a radiation guided detector and a microprocessor that includes both the data gathering and transmission element and the control.

[00:31:28] Speaker 04:
In column four,

[00:31:30] Speaker 04:
In one arrangement, the radiation guy is concentric with a part of the signal carrying the fiber.

[00:31:34] Speaker 04:
That's part of the data gathering and transmission.

[00:31:37] Speaker 03:
I understand you're making an argument, but I asked you, what I asked you for was right where your affiont, your expert, tells me what a person of skill would think.

[00:31:49] Speaker 03:
reflecting what your argument was, and you're not giving me that, that would be helpful.

[00:31:53] Speaker 04:
Well, I will stick around and get that for you, but it's in the pages that I gave to you, the five or six pages.

[00:32:01] Speaker 04:
I guess my time is up.

[00:32:08] Speaker 00:
You're actually right.

[00:32:11] Speaker 00:
Thank you very much.

[00:32:12] Speaker 00:
Thank you.

[00:32:12] Speaker 00:
Thank both sides in the case.