[00:00:00] Speaker 03: Before we start with the clock, we want to talk to counsel about the confidentiality markings, which seem to be inappropriate. [00:00:14] Speaker 03: We mark the safe is open as though we can discuss that here. [00:00:26] Speaker 00: Your Honor, if we were excessive in that regard, we apologize. [00:00:30] Speaker 00: We try to conform with the confidentiality markings below in this case. [00:00:36] Speaker 03: Well, but that's exactly the point of our rules. [00:00:38] Speaker 03: Just because something is marked confidential below doesn't mean it should be marked here. [00:00:43] Speaker 03: You're supposed to go through and determine whether there's a need for the confidentiality marking. [00:00:48] Speaker 03: And looking at these confidentiality markings, it seems, one, that there's no [00:00:54] Speaker 03: reason for the confidentiality of markings in most cases, and second, that it would inhibit our discussion and oral argument in writing an opinion in the case. [00:01:04] Speaker 00: Well, we certainly apologize for that, Your Honor. [00:01:06] Speaker 00: I mean, certainly with respect to the one you identified, we're okay with that. [00:01:10] Speaker 00: I mean, if you'd like us to make a subsequent submission on that to take another look at that, but we certainly apologize if you feel we've been excessive in our markings. [00:01:21] Speaker 03: Well, why don't we just go through [00:01:23] Speaker 03: the oral argument, assuming that the confidentiality markings don't exist. [00:01:28] Speaker 03: And if we get to an area where you think we're trenching on something that's a trade secret or is really confidential, let us know about that. [00:01:36] Speaker 00: Sure thing. [00:01:37] Speaker 00: Thank you, Your Honor. [00:01:38] Speaker 03: All right. [00:01:38] Speaker 03: Why don't you start. [00:01:43] Speaker 00: Thank you, Judge Dyken. [00:01:44] Speaker 00: May it please the court. [00:01:46] Speaker 00: The orders at issue in this appeal seek to enforce two patents concerning various components for ATMs. [00:01:54] Speaker 00: The first of those patents, the 616 patent, has since expired. [00:01:58] Speaker 00: In light of the patent's expiration, the commission itself has asked this court to vacate its order as to the 616 patent. [00:02:07] Speaker 00: And so as the appeal concerns that patent, we would ask this court to accept the commission's request for vacator and to dismiss the appeal as moot to the 616 patent. [00:02:18] Speaker 01: But Dybulb would still have an opportunity to [00:02:23] Speaker 01: claim that the redesign is not an adequate redesign, right? [00:02:27] Speaker 01: At least for that time period. [00:02:29] Speaker 00: It could seek to do so. [00:02:31] Speaker 00: Under our understanding, Your Honor, if this Court actually accepted the Commission's request to vacate its exclusion orders, then that would resolve the issue. [00:02:41] Speaker 00: If the Court did not choose to accept the Commission's request to vacate its orders, or did not remand to the Commission for it to vacate its orders itself, then certainly we think [00:02:50] Speaker 00: that the appeal is not moved for precisely the reason your honor identified. [00:02:56] Speaker 00: And I'd be happy to address the issues with respect to the 616 patent before we turn to the 631 patent. [00:03:02] Speaker 03: Well, the issue is whether they are potentially going to file in the future a sanctions request based on a violation of the exclusion order with respect to the redesigned product, right? [00:03:18] Speaker 03: They've had a couple years [00:03:20] Speaker 03: Have there been communications about this? [00:03:23] Speaker 00: Do they... Diebold has indicated in its brief that it is at least pursuing that or has eyes open on that. [00:03:29] Speaker 00: I mean, certainly our view is that there hasn't been any violation. [00:03:33] Speaker 00: I mean, the commission is... Have they suggested to you that there's a violation? [00:03:37] Speaker 00: I think one reading of its brief is that it's trying to keep that open. [00:03:40] Speaker 00: They've never suggested to us in any concrete manner that there's been a violation, and certainly we don't think there has been. [00:03:46] Speaker 01: But it would put them in a different position if [00:03:49] Speaker 01: They were claiming that there was an actual violation of the existing order because the redesign isn't truly a redesign. [00:03:57] Speaker 00: It would. [00:03:58] Speaker 00: It would, Your Honor. [00:03:58] Speaker 00: It would. [00:03:59] Speaker 00: I mean, and we think... It was a different burden. [00:04:01] Speaker 00: Yes. [00:04:02] Speaker 00: And we think that the simplest way to resolve this is to accept the Commission's own request for a vacator. [00:04:07] Speaker 06: Well, how can you do that in the face of people's interest? [00:04:11] Speaker 06: Well, I mean, I... I mean, you're not in a very good... I mean, shouldn't we be hearing from them? [00:04:17] Speaker 00: And I would encourage... [00:04:18] Speaker 00: your honors to ask them about it. [00:04:20] Speaker 06: I don't know why you have any standing to say what you think is in their mind, unless all you can say is they haven't threatened you. [00:04:27] Speaker 00: Yes, your honor. [00:04:28] Speaker 00: And in their brief, I think they... Right. [00:04:31] Speaker 00: Right. [00:04:31] Speaker 00: And that's all we're saying, your honor. [00:04:33] Speaker 06: And we're certainly happy to... And your client is unaware of any communications they are making to the world to teach people how to teach purchasers how to strip the work around off. [00:04:45] Speaker 00: Yes. [00:04:45] Speaker 01: Now, as to the 616... But you haven't imported anything other than the ones with the redesign, right? [00:04:52] Speaker 01: Correct. [00:04:53] Speaker 01: At least that's what your position is. [00:04:54] Speaker 07: That's our position. [00:04:55] Speaker 01: And has the timeframe for challenging the customs determination, has that passed? [00:05:01] Speaker 00: I don't believe it has, Your Honor. [00:05:02] Speaker 00: Okay. [00:05:03] Speaker 00: What is the timeframe? [00:05:05] Speaker 00: We haven't located a precise timeframe. [00:05:07] Speaker 00: I wasn't able to locate one either. [00:05:10] Speaker 00: So, with respect to the 616 patent. [00:05:12] Speaker 00: I think that the central error in the commission's analysis is with respect to the construction of service opening. [00:05:20] Speaker 00: And I think on that, I think everyone has to agree that there has to be a difference between an opening and a service opening. [00:05:26] Speaker 00: And if you could take, just to think about this, the example of the difference between an elevator and a service elevator. [00:05:32] Speaker 00: Just because a painter can take his equipment and take the normal elevator up to the 10th floor doesn't make that a service elevator. [00:05:39] Speaker 00: Everybody knows what a service elevator is different [00:05:42] Speaker 00: and is there to enable service, bringing painting equipment up, bringing equipment up, whatever. [00:05:48] Speaker 00: And I think the same analysis conceptually applies to the difference between an opening and a service opening. [00:05:54] Speaker 01: Is there a difference? [00:05:56] Speaker 01: Should we look at it differently in terms of whether the structure is capable of allowing service, even if it's not the normal use for the structure? [00:06:06] Speaker 00: I think you would. [00:06:07] Speaker 00: And I think that's one of the differences between the commission's construction and the ALJ's. [00:06:11] Speaker 00: construction. [00:06:12] Speaker 00: And all of this is informed, importantly, by the prosecution history. [00:06:16] Speaker 00: During the prosecution history, the patent office initially was not going to approve the patent because of anticipation of the prior art, the Ramachandran device, which included openings, which in theory could have been used for servicing. [00:06:31] Speaker 00: And Diebold's response to that was to say that in order to practice the limitation service opening, the openings had to be there for meaningful service. [00:06:40] Speaker 00: They had to enable [00:06:41] Speaker 00: meaningful service. [00:06:43] Speaker 00: And so there, for example, in the Ramachandran device, it was clear that you could service it from a different area. [00:06:49] Speaker 00: And there was no indication that the openings that the patent office initially thought were serviceable. [00:06:54] Speaker 01: But did the commission make some factual findings that, in fact, some service that was allowed through your openings was meaningful? [00:07:05] Speaker 00: No, because the commission read the meaningful [00:07:09] Speaker 00: limitation of the ALJ's construction out of the construction. [00:07:12] Speaker 00: Under the commission's construction, all that's required is that it may be used for service conceivably, not even in fact. [00:07:20] Speaker 00: And it read out any meaningful service element of it, which is, I think, central to the ALJ's construction and central to squaring the construction with the prosecution history and DeBolt's own arguments in distinguishing the Ramachandran openings. [00:07:35] Speaker 01: It did seem like the ALJ [00:07:37] Speaker 01: put a lot of extra words in there that might not have been necessary. [00:07:42] Speaker 01: And my question to you is, is that because the ALJ spotted a dispute between the parties, even after her initial thoughts about what a meaningful construction would be? [00:07:56] Speaker 00: Well, I can't get it in the mind of the ALJ, Your Honor. [00:08:00] Speaker 00: I mean, I think she did. [00:08:01] Speaker 00: appropriately explicate her construction and there's talk about additional words, but all she was sort of getting is the nub of this distinction between an opening and a service opening. [00:08:11] Speaker 03: What exactly is your position? [00:08:14] Speaker 03: Because it seems to me that there could be two positions different from the one that the Commission adopted. [00:08:20] Speaker 03: One is that the opening has to allow meaningful service, which I think is what the ALJ said. [00:08:26] Speaker 03: The second one would be that it has to be an opening that's designed [00:08:30] Speaker 03: to be for service, which is your position? [00:08:33] Speaker 00: It's in line with the ALJ, Your Honor. [00:08:34] Speaker 00: We're not asking for any... Meaningful. [00:08:36] Speaker 00: Meaningful service. [00:08:37] Speaker 00: I mean, what the ALJ said was it's an opening, and this is at page 127 of the appendix, through which serviceable components are accessible for servicing, where the opening enables access to the serviceable components, and the claimed service must be meaningful. [00:08:51] Speaker 00: And, of course... What about the 5600 series? [00:08:54] Speaker 00: Well, that was one where she found that it wasn't, Your Honor, but I think our central construction [00:08:59] Speaker 00: And we agree with you. [00:09:01] Speaker 03: The other opening was for meaningful service. [00:09:04] Speaker 00: Yes. [00:09:04] Speaker 00: And that's a fact-specific analysis for the infringement analysis. [00:09:08] Speaker 00: But for the basic construction, our position is that the commission was wrong in reading out the element of meaningful service and in holding that any opening as long as you can see what... Well, how do you know what service is meaningful? [00:09:19] Speaker 06: What happens if you can maybe loosen one screw, but that's all you can do? [00:09:23] Speaker 00: I wouldn't say that that's meaningful in any sense, Your Honor. [00:09:26] Speaker 00: And part of this... [00:09:29] Speaker 06: Well, part of this goes to... Is it your view that service has to allow you to complete whatever service mission you were trying to accomplish when you went in through the hole? [00:09:39] Speaker 06: Well... Because in the 5600, if I'm not mistaken, they were able to actually remove the keyboard, the whole... Right. [00:09:47] Speaker 06: Am I allowed to... Right. [00:09:48] Speaker 06: And I think... The hole was large enough that they could reach in under the screws and lift the keyboard in the face... [00:09:55] Speaker 06: keyboard out, right? [00:09:56] Speaker 00: I think what we're distinguishing here is the difference between the pinhole that you can blow air through and service it that way and an opening whereby meaningful service can be accomplished. [00:10:05] Speaker 00: And I think it's a fair understanding of the ALJ's construction as it actually being able to remove the keypad as meaningful service. [00:10:12] Speaker 00: Now, a lot of this goes to the actual infringement or analysis as to whether it's practicing, which would look to things like the service manuals, the positioning of screws, whether that [00:10:23] Speaker 06: But on the 5600 while we're on it, the 5600 infringes under either interpretation. [00:10:31] Speaker 00: Well, certainly it fringes under the commissions, because it's very broad. [00:10:34] Speaker 06: We don't cover almost anything. [00:10:36] Speaker 06: You artfully sort of avoided the 5600 in the briefs, the footnote that lists out all the others. [00:10:41] Speaker 06: Right. [00:10:42] Speaker 06: It would under the ALJs as well. [00:10:44] Speaker 06: 5600 would fail to infringe under the ALJs. [00:10:46] Speaker 06: That's correct. [00:10:47] Speaker 03: This limitation or the second position limitation as well, because it seems to me that [00:10:54] Speaker 03: if there is a service opening in the 5600 that it's accessible from the safe, right? [00:11:02] Speaker 03: Right. [00:11:02] Speaker 00: So there wouldn't be infringement on the second limitation. [00:11:06] Speaker 00: I believe that's right, Your Honor, and I think one appropriate thing for this Court to do would be to set aside the Commission's construction and to send it back for [00:11:13] Speaker 00: determination as to whether or not there's infringement practices. [00:11:16] Speaker 01: What was the challenge to the ALJ's infringement findings? [00:11:19] Speaker 01: Did you really challenge the ALJ's infringement findings as to the 5600 other than the second position? [00:11:26] Speaker 01: So you didn't as to the first position? [00:11:28] Speaker 00: We didn't, Your Honor. [00:11:29] Speaker 01: So is there a reason to have to remand for that? [00:11:32] Speaker 00: I think it would depend on what this Court said about why the Commission was wrong in terms of whether or not remand would be appropriate. [00:11:38] Speaker 00: And I think the safest thing to do would be to just ask the Commission [00:11:41] Speaker 00: to reconsider that. [00:11:42] Speaker 00: But certainly if this court believed that that machine was separate, then that would be one way to resolve it. [00:11:49] Speaker 00: Why don't you discuss the 631? [00:11:51] Speaker 00: Sure. [00:11:52] Speaker 00: I think with respect to that, we have two errors. [00:11:55] Speaker 00: One is a clear legal error in its application of the obviousness analysis in this court's case law. [00:12:02] Speaker 00: And the second is an expansion which you think is inappropriate of the commissions. [00:12:06] Speaker 03: So my reaction was that you've got a pretty good argument [00:12:10] Speaker 03: combining these two pieces of prior art was feasible and that's something that someone would have done. [00:12:17] Speaker 03: But the problem is that once you combine the two pieces of prior art, you still don't have the invention because you're not able to read numbers from checks that are put in upside down. [00:12:29] Speaker 00: Well, that's certainly wrong as a factual matter and I think it's wrong as a matter of prior art. [00:12:35] Speaker 03: These two pieces of prior art didn't [00:12:38] Speaker 03: uh, read upside down checks, right? [00:12:41] Speaker 00: Uh, the, the inventions disclosed did not, uh, address reading through the, the paper. [00:12:48] Speaker 01: No, that's right. [00:12:50] Speaker 00: But, and they acknowledge that they couldn't at the time, but the point is, and this is the argument we make with respect to Volpa and the understanding. [00:12:56] Speaker 00: The question is, is what was it? [00:12:57] Speaker 00: What would a person of ordinary skill in the art know at the time of the six three one application? [00:13:03] Speaker 00: And that person would have known. [00:13:05] Speaker 00: that a micro reader, including the micro readers in the Yasuhiku and the Kim references, could read through paper because that was known. [00:13:12] Speaker 01: The Volpa references... But there was an express finding of fact that in fact that wasn't the case, right? [00:13:20] Speaker 01: That there wasn't sufficient disclosure even with that background. [00:13:24] Speaker 00: I think the problem was, and this was another legal error in the analysis, is that the ALJ believed that it was necessary to disclose Volpa [00:13:34] Speaker 00: and the fact that you could read through paper as part of the combination, as opposed to establishing the knowledge of a person of ordinary skill and what that person would understand. [00:13:46] Speaker 00: And looking at the Kim and the Yasuhiko references, that person would understand in 2007, when the 631 patent application was filed, that the micro-readers disclosing those patents could read through paper. [00:13:58] Speaker 00: Because Volpa disclosed that. [00:14:00] Speaker 00: There was other testimony by our expert at pages [00:14:05] Speaker 00: 4127 of the appendix that showed that a person of ordinary skill and the art would understand that the micker readers could read through paper. [00:14:13] Speaker 03: And that's... When is this point about envelope erase? [00:14:15] Speaker 03: Was that in the reply? [00:14:18] Speaker 00: In this case, Your Honor? [00:14:20] Speaker 00: Yeah. [00:14:21] Speaker 00: No, we addressed it in the opening brief. [00:14:23] Speaker 00: No, no, no, no. [00:14:24] Speaker 00: Not in the reply brief. [00:14:25] Speaker 03: Sorry. [00:14:28] Speaker 03: In the... Before the ITC, when was it raised? [00:14:32] Speaker 03: Was it raised initially? [00:14:33] Speaker 00: Oh, I believe it was a raise initially in the ALJ proceeding. [00:14:37] Speaker 00: That's right. [00:14:38] Speaker 00: But I think that the ALJ is an error in that. [00:14:42] Speaker 00: Volpa predated Kim, right? [00:14:46] Speaker 00: Volpa was filed 2003. [00:14:47] Speaker 00: So it did predate Kim by one year, but it came after Yasuhiko. [00:14:51] Speaker 00: And then Kim said you couldn't read it upside down, right? [00:14:55] Speaker 00: That's right. [00:14:56] Speaker 00: But Volpa wasn't actually published until later. [00:15:00] Speaker 00: And the point is, and we have testimony on this, that [00:15:03] Speaker 00: The person of ordinary skill in the art, and Volpa was just one reference as to this, the person of ordinary skill in the art would have understood that a micker reader could read through paper. [00:15:12] Speaker 03: Where do we find what the ITC said about the reason that it wasn't considering Volpa? [00:15:18] Speaker 00: Your Honor, that would be in the ALJ's decision, because the ITC didn't address that. [00:15:23] Speaker 00: And it comes after the, I believe it's pages 274 [00:15:31] Speaker 00: to 276. [00:15:34] Speaker 00: And what the ALJ is talking about there is the combination of Kim, Yasuhiko, and Volpa. [00:15:43] Speaker 00: But our point is that we didn't have to... I'm trying to see what they said about Volpa. [00:15:48] Speaker 03: It's the bottom of 275. [00:15:50] Speaker 00: It says that we didn't disclose the limitation. [00:15:52] Speaker 00: But here, for example, [00:15:55] Speaker 00: What the ALJ says is Nautilus, which is Yoson today, does not argue that, and this is on page 276, one of ordinary skill and the art would have combined Volpa's microstation with Yasuhiko or Kim. [00:16:08] Speaker 00: But our point is that we didn't have to allege that as a combination, Kim, Yasuhiko, and Volpa. [00:16:14] Speaker 00: We're simply pointing to Volpa as evidence of what a person of ordinary skill and the art would have known. [00:16:19] Speaker 00: And that's all we have to show. [00:16:20] Speaker 01: But if Kim, [00:16:22] Speaker 01: that comes after Volpa says that, in fact, you can't read upside down, then why isn't it a fair finding of fact to say that you might have said that Volpa would say this is what someone of ordinary skill and the art would know, but we don't accept that. [00:16:39] Speaker 00: I don't think you could credit that as a finding of fact because I think the legal analysis is wrong. [00:16:43] Speaker 00: The court never looked to the question of whether or not you could look at Kim and Yasuhiko through the lens of what a person of ordinary skill and the art would understand. [00:16:52] Speaker 00: And that determination will be made based on Volpa and other factors like the expert testimony we had here. [00:16:58] Speaker 00: Why did you not assert Volpa as one of the facts? [00:17:02] Speaker 00: Your Honor, initially we did. [00:17:03] Speaker 00: I know. [00:17:04] Speaker 00: And then you refuted it. [00:17:05] Speaker 00: Right. [00:17:05] Speaker 00: And because it wasn't necessary under the legal analysis. [00:17:08] Speaker 01: Well, now you're saying it was necessary. [00:17:11] Speaker 00: No, it wasn't necessary to plead it as a combination. [00:17:15] Speaker 01: Wouldn't that have been cleaner just to leave it? [00:17:18] Speaker 01: If you really thought it was that important, why didn't you just leave it as one of the pieces of prior art that you were asserting? [00:17:23] Speaker 00: Because our central argument all along has been the same, which is that a person of ordinary skill in the art would have been obvious to that person to combine Yasuhiku and... You're really using vulpa, though, to say that you're filling a gap in the art, right? [00:17:40] Speaker 00: piece of evidence as to what a person of ordinary skill in the art would have known. [00:17:44] Speaker 03: They didn't refuse to consider Hoppe for that purpose, as I read what they said here. [00:17:50] Speaker 00: I think, I mean, our understanding was that what he said is you couldn't consider it as a combination. [00:17:55] Speaker 00: He never, she never. [00:17:57] Speaker 03: They considered it for the purpose that you offered, that is, what a person of ordinary skill would understand. [00:18:05] Speaker 03: And they seemed to, as a factual matter, reject that and find that [00:18:11] Speaker 03: Kim, you couldn't do that with Kim. [00:18:13] Speaker 03: And I guess I would. [00:18:16] Speaker 03: In other words, it seems to boil down to a factual issue rather than a legal issue. [00:18:21] Speaker 00: Right. [00:18:21] Speaker 00: And the reason why I don't think that is right is because I think the ALJ never really addressed the right factual question, which is, would a person of ordinary skill in the art in 2007, when the 631 patent application was filed, understand, in looking at Kim and Yasuhiko, [00:18:40] Speaker 00: that the micro-readers disclosed in those applications could read through paper? [00:18:44] Speaker 00: And our answer is yes. [00:18:45] Speaker 00: And BOLPA is simply one indication to show that that person who already has skilled the art would know that. [00:18:50] Speaker 00: I don't think, as we read the ALJ's opinion in the section that I mentioned, that the ALJ is answering that factual issue. [00:18:59] Speaker 00: I think what she looked at was whether or not there could be a combination and looked to the fact that we didn't argue [00:19:05] Speaker 00: a combination, but we didn't have to argue it as a combination. [00:19:08] Speaker 01: So I think if the court is otherwise with us on the obviousness... Under your theory, though, then you never really would have to have pieces of prior art that disclose the limitations. [00:19:18] Speaker 01: You could just say, we don't need to cite any prior art. [00:19:21] Speaker 01: We can just say that there was something else out there that you should have looked at. [00:19:24] Speaker 00: Well, I don't think so because, I mean, really the inventions that are doing the work here are Yasuhiko and Kim in terms of explaining [00:19:32] Speaker 00: You could have a movable reader to read checks in different directions. [00:19:36] Speaker 01: Right, and both of those did not read through paper. [00:19:38] Speaker 00: Right, and then it became apparent that the Micra readers could read through paper, and that is just a fact that the ordinary person of ordinary skill and the art would know, and looking at those references, they would know. [00:19:50] Speaker 03: Those were, in other words, you're saying the Volpo would help you interpret Kim and Jeshowiko. [00:19:59] Speaker 03: Exactly. [00:20:00] Speaker 03: To allow reading through the paper. [00:20:02] Speaker 00: they would know that when they're talking about micro-readers, those micro-readers today in 2007, they would read through paper. [00:20:09] Speaker 00: That's all we're saying with respect to Volpa. [00:20:11] Speaker 01: But again, under your theory though, our obviousness law would change because we would say that you don't need to cite pieces of prior art that actually disclose the limitations as long as you can just have some overarching concept that [00:20:28] Speaker 01: something in the prior art would fill in an actual gap. [00:20:32] Speaker 01: That doesn't seem to make a lot of sense. [00:20:34] Speaker 00: That's not our position, and that's not what we're arguing here, Your Honor. [00:20:37] Speaker 00: I think what we're saying is that the key limitations here are disclosed by Yasuhiko and Kim in talking about the use of a movable micro reader to read checks in different directions, a fixed micro reader to read checks coming in removable for different widths, fixed for different directions, and that [00:20:55] Speaker 00: Volpe simply shows that a person would understand that those readers could read through paper. [00:21:01] Speaker 00: And that would give the person of ordinary skill the knowledge that was necessary to modify that. [00:21:06] Speaker 00: And going back to why this is such a clear legal error, if you look at the court's decision in allied erecting, there the court said that the mere fact that you can't just physically combine these references doesn't defeat obviousness or motivation to combine. [00:21:20] Speaker 00: And that's exactly what the ALJ did. [00:21:22] Speaker 01: really no dispute as to what was well known in the art and it was a different kind of concept. [00:21:28] Speaker 01: This is a very specific gap filling in the prior art that you want to cite to one particular reference for. [00:21:37] Speaker 00: But the ALJ got hung up on the legal error that you couldn't physically combine Kim and Yasuhiko because you couldn't add a second reader and that's at pages 273, 274 of the appendix and that was clear error [00:21:52] Speaker 00: under this court's decision in allied erecting. [00:21:55] Speaker 00: And so the ALJ never really properly looked at this in terms of a motivation to combine these prior references. [00:22:01] Speaker 00: Under the allied erecting analysis, it's clear that there was motivation to combine here. [00:22:05] Speaker 00: The evidence supports that. [00:22:06] Speaker 00: But at bare minimum, it should send back. [00:22:08] Speaker 03: I think we're about out. [00:22:09] Speaker 03: Thank you, Your Honor. [00:22:10] Speaker 03: We'll give it to you for rebuttal. [00:22:12] Speaker 03: Mr. Rosenstein. [00:22:14] Speaker 05: Thanks. [00:22:15] Speaker 05: May it please the court. [00:22:18] Speaker 05: We can start off with the 631 where we just ended. [00:22:21] Speaker 05: be most useful for continuity. [00:22:24] Speaker 05: Council just said that Volpe was one piece of evidence for the person. [00:22:27] Speaker 06: Before you could, I just have one question on the mootness issue. [00:22:30] Speaker 06: Sure. [00:22:33] Speaker 06: Does the Commission have any, assume the Commission was going to institute an enforcement action on its own. [00:22:40] Speaker 06: Is there some threshold level prima facie facts you have to be satisfied with in order to initiate? [00:22:48] Speaker 05: It's [00:22:50] Speaker 05: It's kind of similar to an original complaint that there would be very detailed explanations of infringement, like infringement contentions and so forth as part of... Is time ever a consideration? [00:23:03] Speaker 05: And tell me how time has never been a problem. [00:23:05] Speaker 05: I can represent... Someone came in and said, 10 years. [00:23:08] Speaker 05: 10 years later would be, I think would be a problem. [00:23:11] Speaker 05: The commission views it as a problem here. [00:23:13] Speaker 05: where almost a year ago... Are there actual rules? [00:23:15] Speaker 01: We looked and looked and looked and couldn't find anything where the commission says if you want to have or to claim a violation of any exclusion order, you have to do so within a certain period of time after which you become aware, for instance, that the product is being imported. [00:23:33] Speaker 05: Until now, everyone's acted promptly, so the commission's never had a rule. [00:23:38] Speaker 05: And given that the civil penalties are assessed for each day of noncompliance, you run into a bit of a latches issue. [00:23:45] Speaker 01: So it would really only have to be enforced equitably since there are no actual rules. [00:23:50] Speaker 05: The commission would enforce it fairly. [00:23:53] Speaker 05: And in this case, it's been a year and a half since Customs said that these redesigned products could come in. [00:23:58] Speaker 05: And it's been almost a year since the commission moved to dismiss [00:24:03] Speaker 05: on the basis that it was untimely at that point. [00:24:07] Speaker 05: It's the commission's view that even as of then, it was time to fish or cut bait for Diebold. [00:24:12] Speaker 05: The commission said, we think now is too late for you to bring it and bring an enforcement complaint. [00:24:17] Speaker 05: And here we are almost a year later with Diebold knowing about the structure, function, and operation of all of these products a year and a half ago. [00:24:25] Speaker 05: We're kind of incredulous that Diebold could just sort of tease out a speculative possibility of bringing an enforcement complaint [00:24:34] Speaker 05: and that that would require this court to issue what the commission believes to be an advisory opinion as to the 616 matter. [00:24:40] Speaker 01: Is there a time limit on challenging the customs ruling, even if there's no time limit on claiming a violation of an exclusion order? [00:24:50] Speaker 05: I mean, ordinarily, the way that the customs rulings would work would be that you would have to have a product excluded from entry. [00:24:57] Speaker 05: You would have a customs protest. [00:24:58] Speaker 05: Then you would have a civil action in the Court of International Trade. [00:25:03] Speaker 05: as to the customs protest as to a single excluded shipment. [00:25:08] Speaker 01: My question is, isn't there an ability to make a challenge the other way around where it's not excluded? [00:25:13] Speaker 05: Where it's not excluded... So there is no ability to challenge that? [00:25:17] Speaker 05: I don't know if there is an ability to do that. [00:25:19] Speaker 05: There was a district court case about five or six years ago where a party in Diebold's position brought an action in the district of DC directly under the Administrative Procedure Act [00:25:32] Speaker 05: The commission filed an amicus brief saying that the commission had primary jurisdiction over these issues. [00:25:38] Speaker 05: These issues should be brought to the commission and that the district court should refrain. [00:25:42] Speaker 05: The district court didn't act on that APA lawsuit and the parties ultimately withdrew it a couple of years later. [00:25:50] Speaker 05: But relief is available from the commission. [00:25:51] Speaker 01: That's a good way to do it. [00:25:52] Speaker 01: Just don't act on it and the parties decide not to. [00:25:55] Speaker 05: Well, you know, they just don't act on it here with respect to the enforcement proceeding. [00:26:01] Speaker 05: but unfortunately creates work instead of saves work. [00:26:05] Speaker 03: On the 631 we have cases in the IPR context, Gensheim, Ariosa, I don't know whether you're familiar with those cases, but they say that you don't have to rely on prior art, in a particular combination you can rely on the prior art as indicating the knowledge of someone skilled in the art at the relevant time. [00:26:32] Speaker 03: How is the ALJ's decision here declining to consider Volpa consistent with that line of cases? [00:26:41] Speaker 05: I think we discussed those in our brief. [00:26:44] Speaker 05: There was Dicestar, there was Randall vs. Ria, there was Ariosa. [00:26:47] Speaker 05: If I recall Ariosa correctly, it was sales brochures that demonstrated that products were actually out there in the marketplace, widely understood commercially. [00:26:56] Speaker 05: What we have here is Volpa. [00:26:58] Speaker 03: We have Ginzan, which more broadly talks about [00:27:01] Speaker 03: what's appropriate to consider in terms of the knowledge of someone skilled in the art, even though it's not part of a combination. [00:27:08] Speaker 03: I don't know, did you discuss Genzyme? [00:27:10] Speaker 05: I didn't discuss Genzyme, and respectfully, I'm not familiar with that one. [00:27:14] Speaker 05: But what we've heard from the appellants here is that they're not resting entirely on Volpa. [00:27:19] Speaker 05: The council said Volpa is one piece of evidence for what a person of ordinary skill knows, and council pointed to page 41, 127, [00:27:27] Speaker 03: They're relying on it to show what these other two pieces of prior art disclose. [00:27:33] Speaker 03: They're saying that the vulpa thing shows that some feature of these two pieces of prior art allows reading an obversely inserted check. [00:27:48] Speaker 05: Well, it wasn't obvious to Kim, who was actually making stuff, and it was incumbent upon Nautilus here to explain what was going on in 2007. [00:27:56] Speaker 05: Was there a problem with the magnets in the heads? [00:27:58] Speaker 05: Was there a problem with the paper transport? [00:28:00] Speaker 05: Was there a problem with processing, with computer hardware? [00:28:03] Speaker 05: What was going on in 2007 such that a person of ordinary skill would understand that Volpa is actually correct, maybe? [00:28:11] Speaker 05: We don't know if Volpa was really correct in 2007. [00:28:15] Speaker 05: But there's nothing in this record other than Volpa. [00:28:17] Speaker 05: It's always Volpa for example this, Volpa for example that. [00:28:21] Speaker 03: But the problem I see is that the ALJ didn't discuss what reconciled the supposed inconsistency between Volpa and what Kim said about the ability of the technology. [00:28:38] Speaker 05: Well, Kim said that it couldn't read through the paper. [00:28:42] Speaker 05: There's no evidence in this record anywhere, notwithstanding what counsel says about other evidence about what a person of ordinary skill in the art knows. [00:28:50] Speaker 05: There's no evidence in this record about what a person of ordinary skill in the art knows, except for vulpa. [00:28:55] Speaker 05: And under those circumstances, vulpa was being used in the same way that a third piece of prior art would come in. [00:29:01] Speaker 03: I don't think that's necessarily true. [00:29:03] Speaker 03: The enzyme in areosa seems to be being used to interpret other prior art and how someone skilled in the art would interpret that. [00:29:13] Speaker 05: Well, I don't know genzyme. [00:29:15] Speaker 05: I know that areosa was showing sales brochures about what a person of ordinary skill would know was actually [00:29:20] Speaker 01: In other words, it's the difference between a broad disclosures in the prior art versus a key limitation that they're relying on one prior art reference to disclose. [00:29:32] Speaker 05: Yeah, exactly. [00:29:33] Speaker 05: Exactly. [00:29:34] Speaker 05: And that's Randall versus Ria, I think, was looking at textbooks. [00:29:38] Speaker 05: And there's another case also, which had a whole bunch of, you rely cumulatively on a whole bunch of references to demonstrate that something was widely known. [00:29:47] Speaker 01: And then the two references they actually did rely on [00:29:50] Speaker 01: expressing didn't disclose. [00:29:52] Speaker 05: It's more than didn't disclose. [00:29:54] Speaker 05: One of them said that it wouldn't work. [00:29:57] Speaker 05: So this is using a piece of prior art to gap fill. [00:30:00] Speaker 05: And I would just like to say that it's always vulpa, for example, including on page 41, 127, which is what they point to. [00:30:07] Speaker 05: But there are probably eight other references in the appendix to what a person of ordinary skill in the art would understand in 2007. [00:30:13] Speaker 05: And it's never based on [00:30:16] Speaker 05: trying to survey what was going on in 2007. [00:30:18] Speaker 05: It's just a conclusion. [00:30:19] Speaker 05: It cites Volpa and says, for example, and it never explains Kim's understanding to the contrary, and it never backs up Volpa with anything else. [00:30:29] Speaker 05: And the ALJ's decision here is reviewed for substantial evidence, and substantial evidence supports the fact that Kim and Yasuhiko failed to teach reading through the check. [00:30:42] Speaker 03: What about the service opening? [00:30:44] Speaker 03: The service opening... [00:30:47] Speaker 03: It seems to be a bit questionable, just anything you could do through an opening, regardless of the design, regardless of whether you can perform meaningful service as a service opener. [00:31:00] Speaker 05: Well, I don't think that's a fair characterization of the Commission opinion here. [00:31:03] Speaker 05: When you read the Commission opinion, and you plainly have, the Commission went through videotapes, studied the actual service that was going on through the opening, [00:31:13] Speaker 05: found that some of the manipulation actually performed service, removing speakers and so forth from underneath. [00:31:19] Speaker 05: Yeah, but that's not part of the construction. [00:31:20] Speaker 03: The construction is you may service it, I guess, in any respect, right? [00:31:28] Speaker 05: Well, in the circumstances in which the evidence demonstrated that all that was happening was turning a screw, for example, with respect to, I think, some of the keypads there, the commission found that that was not infringement. [00:31:39] Speaker 05: And where there was infringement was when there was service going on through the opening. [00:31:43] Speaker 01: Well, they cited to what expert testimony that said, I can fit my finger through one of those openings. [00:31:50] Speaker 01: I mean, how is that an opportunity for real service? [00:31:53] Speaker 05: But that wasn't consistent. [00:31:54] Speaker 05: The commission never found in its analysis of infringement that sticking a finger through the opening constituted infringement. [00:32:02] Speaker 03: We have the ALJ's review of the factual record here, his determination of meaningful, and then the [00:32:12] Speaker 03: The commission says, no, we're going to strike that part of it. [00:32:15] Speaker 03: So what did the commission then say to support your position that they, in fact, imposed some meaningful requirement as they applied their interpretation? [00:32:27] Speaker 05: I think that the distinction in the results between what the ALJ did and what the commission did was that when the ALJ looked at the infringement, she concluded that... Where do we find in the commission's decision what [00:32:40] Speaker 03: I understood you to be saying, which is that even though they eliminated all this language from the ALJ's construction, they were still, in fact, applying some sort of meaningful requirement for satisfying this claim limitation. [00:32:58] Speaker 06: I would look at maybe take one of the products where the commission said the [00:33:06] Speaker 06: service opening limitation was met and one where the ALJ said it wasn't. [00:33:11] Speaker 05: So if I could just, what I'd like to try to explain, I think this answers your question and I hope it does because otherwise I guess I'll be in trouble. [00:33:19] Speaker 05: The ALJ concluded that some of the actual service through the opening didn't comport with her claim construction because service could also be done in the alternative up on top. [00:33:29] Speaker 05: And the commission didn't look at that. [00:33:30] Speaker 05: The commission looked at the service through the opening. [00:33:33] Speaker 05: Could you engage in real service through the opening? [00:33:36] Speaker 03: There are examples of... No, but the Commission said real service through the opening. [00:33:39] Speaker 03: That's what I'm asking you about. [00:33:41] Speaker 03: Wait, don't interrupt. [00:33:43] Speaker 03: Where does the Commission say you've got to be able to do real service through the opening? [00:33:47] Speaker 03: That's the problem I'm having. [00:33:53] Speaker 05: What the Commission found, and you'll have to forgive me because I thought that this patent was moot, was that in instances with... I'm looking for example at [00:34:06] Speaker 05: Appendix 51. [00:34:07] Speaker 05: There are a number of instances here where the infringement theory was to remove the keypad from the halo devices of hyosongs. [00:34:21] Speaker 05: And the mere fact that the expert, for example, on page 51 to 52 was able to go underneath and fiddle with screws and so forth wasn't enough. [00:34:32] Speaker 05: Where infringement was actually found here, [00:34:35] Speaker 05: was with respect to products that were actually serviced through the opening. [00:34:39] Speaker 05: It was removal, for example, of a speaker and other such things other than the key parts here. [00:34:49] Speaker 06: Well, can you pick one where the commission says it meets the limitation and the ALJ said it didn't? [00:34:56] Speaker 06: That gives us really clear distinction as to why. [00:35:01] Speaker 05: The clear distinction as to why is [00:35:09] Speaker 04: Hold on. [00:35:15] Speaker 05: I apologize. [00:35:26] Speaker 05: I'm not as familiar with this part of the record as I should be. [00:35:28] Speaker 01: Are you saying though that it is really more of a debate over the [00:35:34] Speaker 01: commission's infringement determinations than it should be over the claim construction? [00:35:38] Speaker 05: I think so, and I think that the idea that this meaningful was what they proposed below is inconsistent with the record, and it's even inconsistent with what I think they are. [00:35:46] Speaker 01: Well, the word service is all over the specification, and it's in the term. [00:35:51] Speaker 01: And so the argument is that the commission read the word service out of the term service opening. [00:35:57] Speaker 05: The commission didn't do that here. [00:35:59] Speaker 05: In the opinion, and I'll maybe [00:36:02] Speaker 05: the intervener, maybe Diebold's counsel remembers this a little bit better with respect to page numbers. [00:36:08] Speaker 05: But in instances where it was just adjusting screws like for the keypads, the commission found that that was an infringement. [00:36:13] Speaker 05: But where Dr. Kurfus was able to go through underneath, through the opening and remove a speaker and do other things like that to accomplish a goal, that was deemed to be infringement here. [00:36:27] Speaker 03: All right. [00:36:28] Speaker 03: Well, we're out of time. [00:36:36] Speaker 03: Mr. Troutman. [00:36:40] Speaker 02: Good morning. [00:36:44] Speaker 02: May it please the court to try to pick up just where we left off, unless... Well, now let's talk about mootness. [00:36:50] Speaker 03: Sure. [00:36:51] Speaker 02: Okay. [00:36:51] Speaker 03: So you had a couple of years here. [00:36:53] Speaker 03: There haven't been any complaints. [00:36:55] Speaker 03: You haven't identified anything which is imported in violation of the exclusion order. [00:37:01] Speaker 03: Why isn't it moot? [00:37:02] Speaker 02: It's not moot because we don't know [00:37:05] Speaker 02: whether or not they in fact violated the exclusion order. [00:37:07] Speaker 02: And we won't have that. [00:37:08] Speaker 02: You have plenty of time to find out. [00:37:09] Speaker 02: Why don't you know? [00:37:11] Speaker 02: The reason we don't know is because the activity in terms of removing these plastic covers would be invisible to us. [00:37:20] Speaker 02: And so we don't know whether or not they remove the plastic covers and ship them to customers, whether or not the customer... Did you ask? [00:37:27] Speaker 02: What's that? [00:37:27] Speaker 02: Did you ask? [00:37:28] Speaker 02: Absolutely. [00:37:29] Speaker 02: And they said at the time of the customs proceeding, of course not. [00:37:32] Speaker 02: We're not doing that. [00:37:33] Speaker 01: But one of the other significant facts... It's only a few months that we're talking about, right, or a year. [00:37:37] Speaker 02: Yes, absolutely. [00:37:38] Speaker 02: And the answer is we don't... It wouldn't have been that hard for you to find out, right? [00:37:42] Speaker 02: We can't go into their factory in Texas where these things are unpackaged and finished for service. [00:37:48] Speaker 02: And once they're, you know... What are you waiting for? [00:37:51] Speaker 03: I mean, how are you going to find out in the future? [00:37:54] Speaker 02: You say maybe 10 years from now we'll figure out that... No, Your Honor, when this case is back in the district court, [00:38:01] Speaker 01: uh... we expect to get discovery and find out what the what probably use the district court discovery point out where there was a violation commissions or that's correct there is no other metment discovery mechanism available to us uh... so but really what it what is your harm if we let this go and you still can in the district court claimed that that those products infringed can't you uh... we certainly can your honor and you see determinations are binding on the district court but if we go ahead and [00:38:31] Speaker 01: give a claim construction that might be different than the ITCs, that would be binding, right? [00:38:35] Speaker 01: Or at least on later panels of our court. [00:38:37] Speaker 02: It would be, and it would be authority that the district court would have to follow. [00:38:42] Speaker 02: You might not like it, actually. [00:38:43] Speaker 02: I understand that, Your Honor. [00:38:44] Speaker 02: In fact, I wanted to turn to the claim construction issue because I believe that, in fact, if they're right and they have repudiated the exclusive means theory, they don't have a non-infringement device. [00:38:59] Speaker 02: Judge Cleverger, I believe you had asked where in the record is an example of the commission finding infringement where the ALJ did not. [00:39:08] Speaker 02: And an example of that is the Halo 2 series, and this starts on the appendix at page 49, where the commission decision is explaining what the rationale is and then goes on to page 50. [00:39:25] Speaker 02: and talks about removing the speaker. [00:39:28] Speaker 02: And that's one example of actual service done through the service opening. [00:39:32] Speaker 02: Now, why did the ALJ not find that infringing? [00:39:37] Speaker 02: The ALJ found that not infringing because of her claim construction, which she made clear in her opinion, and this is in the record at appendix page 124, that in her view, enablement not accessible through other means. [00:39:52] Speaker 02: And when you look at the difference, she said, the reason I'm not finding the halo [00:39:56] Speaker 02: series to infringe was because you could perform that service from above as well. [00:40:00] Speaker 02: That's the exclusive theory that the ALJ added in her ID. [00:40:05] Speaker 02: That's what we sought review on by the Commission. [00:40:07] Speaker 02: That's what the Commission rejected. [00:40:09] Speaker 02: And that is the non-infringement defense that made the difference between this various other models infringing and not. [00:40:16] Speaker 02: But that's the theory they've now repudiated, certainly clear in their reply brief. [00:40:20] Speaker 02: So it's unclear, since when you look at that record and it goes from the appendix page 48 to 57, where the commission went through every model and cited all the evidence, all that evidence is of real service, meaningful service. [00:40:35] Speaker 02: And it's not simply touching a screw on our own expert. [00:40:38] Speaker 03: And this is quoted by the... So why did it change the claim construction if you're saying it's basically the same? [00:40:43] Speaker 03: It has to be meaningful service. [00:40:46] Speaker 02: I'm not sure there is a distinction [00:40:48] Speaker 02: between service and meaningful service. [00:40:50] Speaker 02: Service means service. [00:40:51] Speaker 03: In your view, the commission's claim construction and the ALJ's claim construction are basically the same? [00:40:58] Speaker 02: No, what I'm suggesting is the ALJ's claim construction required exclusivity. [00:41:02] Speaker 02: What I'm saying is that the commission's claim construction... So far as it required meaningful service, they're the same? [00:41:09] Speaker 02: The outcome would be the same if the word meaningful were inserted because [00:41:12] Speaker 02: We proved meaningful service, and the commission cited that. [00:41:16] Speaker 06: Being able to service from another way was the ALJ's extra. [00:41:20] Speaker 02: Yeah, that's what she said. [00:41:21] Speaker 02: If you could do it from above as well as below, it's not infringing. [00:41:24] Speaker 01: So what kind of service did the commission find could be accomplished through the Halo 2 series, from below? [00:41:34] Speaker 02: Removing the speaker is one that jumps out, and that's on page 50 of the appendix. [00:41:42] Speaker 03: So could this be? [00:41:45] Speaker 06: The 5600 was the same idea. [00:41:48] Speaker 06: They were able to actually remove the keypad. [00:41:51] Speaker 03: And can that be done when the safe door is open from below? [00:41:54] Speaker 02: It can be done when the safe door is open or the safe door is closed when it's removed out. [00:41:59] Speaker 03: OK, so that construction then leads to the issue of whether the second position limitation is that don't interrupt. [00:42:09] Speaker 03: Leads to the question of whether the second limitation [00:42:12] Speaker 03: Second position limitation was satisfied if, in fact, the service that they found constituted service through a service opening could be accessed from below. [00:42:26] Speaker 02: I apologize, Your Honor. [00:42:27] Speaker 02: Let me try to be clear because I think the record is clear on this if the briefing is not. [00:42:33] Speaker 02: When the safe door is closed and the rollout trays are in the second position, [00:42:39] Speaker 02: The record is crystal clear, and it wasn't disputed below, that the service openings are not accessible. [00:42:44] Speaker 02: Well, sure. [00:42:45] Speaker 02: But when the safe door is open, they are accessible. [00:42:48] Speaker 02: That's correct. [00:42:51] Speaker 02: But the claim construction that they at one point argued below, that accessible means never accessible under any configuration, was abandoned. [00:43:02] Speaker 02: And in the reply brief, they acknowledged the correctness of our proposition, which is if there is a configuration of the device, [00:43:09] Speaker 02: in which that element is satisfied, i.e. [00:43:12] Speaker 02: the safe door closed, that's enough for infringement. [00:43:15] Speaker 02: They acknowledge that position. [00:43:17] Speaker 02: What they seem to suggest is somehow there was a factual dispute as to whether or not the safe door closed. [00:43:23] Speaker 03: The ITC's claim construction as to second position was wrong. [00:43:27] Speaker 03: That's their contention because the housing is the upper part of the device and it doesn't include the lower part and it doesn't have anything to do about whether the [00:43:40] Speaker 03: a safe door is open or not. [00:43:41] Speaker 03: If it can be accessed when the safe door is open, then it doesn't satisfy the claim limitation. [00:43:47] Speaker 03: That's their contention. [00:43:48] Speaker 02: With all due respect, I don't read their position that way. [00:43:51] Speaker 02: They don't argue... Because it was not a claim construction argument they preserved below. [00:43:56] Speaker 02: They argue this is a matter of infringement. [00:43:59] Speaker 02: They said that there's not substantial evidence of infringement because you could get access to it when the safe door is open. [00:44:06] Speaker 02: And we pointed out... [00:44:09] Speaker 01: You don't believe that they argued below that housing, as that term is used in the claim, refers to the upper part of the machine rather than the lower part of the machine? [00:44:19] Speaker 02: Not as a claim construction matter, Your Honor. [00:44:22] Speaker 02: OK. [00:44:22] Speaker 02: Let me turn as quickly as I can in the remaining seconds to the 631. [00:44:28] Speaker 02: Let me talk about the substantial evidence. [00:44:30] Speaker 03: You make it brief because we're over time. [00:44:38] Speaker 02: Sure. [00:44:39] Speaker 02: Volpa came before Kim. [00:44:41] Speaker 02: So if Volpa was announcing common knowledge that you could read through paper, it somehow never made it to Kim more than a year before. [00:44:49] Speaker 02: There was no shred of testimony that Volpa works. [00:44:52] Speaker 02: And if you look at Volpa, it purports to be a solution for when you don't get a very good reading. [00:44:56] Speaker 02: It's got a very elaborate algorithm for trying to figure out what the micro character is. [00:45:05] Speaker 02: The expert witness, which was the only basis they had for arguing [00:45:09] Speaker 02: that A, this was common knowledge, and B, suggested it could be combined, was specifically found to be not credible by the judge. [00:45:20] Speaker 02: And you can find this in the appendix at page 20869 through 71, where, of course, the three pages of transcript, she explains why she didn't find their expert credible. [00:45:31] Speaker 03: That's it. [00:45:33] Speaker 03: We're out of time. [00:45:34] Speaker 03: Thank you. [00:45:35] Speaker 03: Thank you. [00:45:37] Speaker 03: Mr. Doar, you've got two minutes here. [00:45:39] Speaker 00: Thank you, Your Honor. [00:45:39] Speaker 00: Just quickly on Volta and reading through paper. [00:45:42] Speaker 00: First, the ALJ never corrected the right legal analysis established by this Court's decision in Ariosa and Gensheim, which among other things says, art can legitimately serve to document knowledge that skilled artisans would bring to bear in reading the prior art identified as producing obviousness. [00:45:58] Speaker 00: That comes from Ariosa, page 1365. [00:46:00] Speaker 00: Second, there is evidence in the record on what a person of ordinary skill in the art would understand as to reading through paper. [00:46:07] Speaker 00: at note 2 of our reply brief. [00:46:09] Speaker 00: Third, one piece of art can establish the knowledge of what a person's ordinary skill in the art would know. [00:46:15] Speaker 00: That's Genzyme at page 1369. [00:46:18] Speaker 00: And fourth, the ALJ never made a factual determination on this, especially under the right legal framework. [00:46:24] Speaker 00: So we would urge this court to at the bare minimum remand for the ALJ to look at this under the right legal framework. [00:46:29] Speaker 00: And finally, on service opening, the clearest example that the commission's construction is different is that it flipped the infringement findings for all [00:46:37] Speaker 00: the Yosun devices except the 5600 device. [00:46:41] Speaker 00: And what that means is that whereas simply trying to squeeze a finger through an opening could make it a service opening under the Commission's construction because [00:46:52] Speaker 00: It may be possible to service through that. [00:46:54] Speaker 00: That cannot be what service opening means. [00:46:56] Speaker 00: It reads service out of service opening. [00:46:58] Speaker 01: Well, what about the service of the speaker? [00:47:00] Speaker 01: Didn't they make a specific factual finding that you were capable of servicing the speaker? [00:47:04] Speaker 00: It was as to one, it wasn't to all. [00:47:05] Speaker 00: But again, I mean, I think the clearest example that the commission's construction is different. [00:47:09] Speaker 00: Read meaningful out. [00:47:11] Speaker 00: Or one, look at pages 49 to 50 of the appendix. [00:47:15] Speaker 00: And two, look at the results. [00:47:17] Speaker 00: The commission's construction flipped the ALJ's determinations. [00:47:21] Speaker 00: And then finally, [00:47:22] Speaker 00: Effectively, the commission's construction means that the openings in Ramachandran were service openings. [00:47:27] Speaker 00: The concept of meaningful service came from DBALT itself in distinguishing the prior art patent in Ramachandran. [00:47:34] Speaker 01: But it was pretty weird for the ALJ to say, well, it can't be meaningful because it would be more meaningful to go from the top. [00:47:41] Speaker 00: I think this is part of the actual factual infringement analysis, not the construction. [00:47:47] Speaker 00: The basic concept that there has to be meaningful service, I think, is appropriate for the construction. [00:47:52] Speaker 00: determining whether or not that limitation is met is a fact-dependent issue. [00:47:56] Speaker 00: And you looked at things like service manuals, the orientation of the equipment, whether it could be serviced from above typically. [00:48:02] Speaker 00: Those would all go into the factual infringement analysis. [00:48:05] Speaker 00: The basic construction, though, that the commission adopted has to be wrong, because it's far broader than it needs to be, and it reads service out of service opening. [00:48:14] Speaker 03: Second position limitation are they correct that you didn't argue that? [00:48:17] Speaker 00: No, I mean our argument the housing comes from the claim. [00:48:22] Speaker 00: I mean we're simply saying you have to read it. [00:48:24] Speaker 00: We did challenge the claim construction. [00:48:27] Speaker 00: We certainly argued that housing is different than chest. [00:48:30] Speaker 01: But did you argue that as part of a claim construction or did you argue that's just simply in an infringement analysis? [00:48:36] Speaker 00: Our challenge on second position is on infringement. [00:48:39] Speaker 00: not on construction. [00:48:41] Speaker 00: We agreed with the construction. [00:48:42] Speaker 01: Which means that we have a whole different kind of review that's going on here. [00:48:46] Speaker 00: Yes, but the problem with the commission's infringement analysis on second position is it read, didn't apply the right construction, it substituted chest for housing. [00:48:56] Speaker 03: In other words, the commission's ruling itself was not a claim construction ruling, but an infringement ruling. [00:49:01] Speaker 00: Yes. [00:49:03] Speaker 03: All right. [00:49:04] Speaker 00: Thank you. [00:49:04] Speaker 03: Thank you, Your Honor. [00:49:05] Speaker 03: Thank you, Councilor Kasich.