[00:00:00] Speaker 04:
Intelligent automation design for similar biomechanics.

[00:01:10] Speaker 04:
when you are, I'll just say that as I mentioned earlier, this is our second means plus function case of the day.

[00:01:17] Speaker 04:
And just for people who haven't read the briefs, that notably the last case came out of district court in Colorado.

[00:01:26] Speaker 04:
And this case comes out of the district court in Florida.

[00:01:29] Speaker 04:
So a lot of district court judges have been educated recently on means plus function.

[00:01:35] Speaker 04:
Please proceed.

[00:01:42] Speaker 02:
that Dallas were pulling the oral arguments here.

[00:01:45] Speaker 02:
It was so much easier for it from Houston for me than it would be to go to D.C.

[00:01:50] Speaker 02:
So I appreciate that.

[00:01:52] Speaker 02:
It was purely accidental.

[00:01:57] Speaker 02:
My name is John Pohlman.

[00:01:58] Speaker 02:
I'm here representing Appellate Intelligence Automation and Design on an appeal from the middle district of Florida where a district court found all claims of the 683 patent invalid

[00:02:11] Speaker 02:
for failing to disclose adequate structure in a specification to means plus function.

[00:02:17] Speaker 02:
Claim terms.

[00:02:18] Speaker 04:
Can I just ask you something about the way this whole case went down?

[00:02:21] Speaker 04:
You've got two different claims.

[00:02:23] Speaker 04:
One's a method claim and one's an apparatus claim.

[00:02:26] Speaker 04:
And there's some distinctions, perhaps, to be drawn between those two.

[00:02:30] Speaker 04:
Now I know below, I recall that you were arguing that at least claim one was not a means plus function claim at all.

[00:02:38] Speaker 04:
and then making a sort of different argument for six.

[00:02:42] Speaker 04:
And here, on appeal, I just want to confirm, you seem to have abandoned the argument that claim ones not means plus function at all, and just, for maybe reasons that make a lot of sense, putting all your eggs in the not sufficient structure, the sufficient structure issue.

[00:02:59] Speaker 04:
Am I right about the way I'm seeing this case?

[00:03:01] Speaker 02:
Yeah, I believe you're correct with that.

[00:03:03] Speaker 02:
The arguments presented up here on the appeal with respect to Claim 1 is not that the claim itself is not subject to means plus function requirements.

[00:03:14] Speaker 02:
However, Claim 6, as you noted, does incorporate a control circuit in front of the term, determining a time when the torque reaches maximum.

[00:03:23] Speaker 02:
The lower district court, all but

[00:03:27] Speaker 02:
glossed over that term being added to the element itself, which we would submit that would avoid the application of the means plus function requirements.

[00:03:39] Speaker 02:
At the very least, we weren't given the presumption that the term, a control circuit for determining the time when torque reaches a maximum.

[00:03:50] Speaker 02:
We weren't allowed to have a presumption that that term itself is not subject to means plus function.

[00:03:55] Speaker 04:
Is the control circuit a not-sword?

[00:03:58] Speaker 04:
Have we said that that triggers the invocation of means plus function?

[00:04:02] Speaker 02:
Circuit.

[00:04:04] Speaker 02:
Circuit, there is a case of Leonchek versus Apollo linear that has held, this court has held that the term circuit when associated with an identifier that gives some connotation of structure is sufficient to avoid means plus function.

[00:04:21] Speaker 01:
when it's a control circuit that is followed by purely functional language that doesn't seem to identify much more than a generic knot's work.

[00:04:33] Speaker 01:
It doesn't say what kind of circuit it says.

[00:04:37] Speaker 01:
It's almost substituting circuit for the word means, but doesn't do anything more.

[00:04:43] Speaker 02:
Well, you're right.

[00:04:46] Speaker 01:
I just agree on that point in that.

[00:04:49] Speaker 01:
We can come back to this if you want, but because our time isn't very long, let's just

[00:04:56] Speaker 01:
Assume the district court is right, but you have, I think, some substantial arguments about why, even if it is means plus function, there's sufficient structure here to show how all that's performed.

[00:05:09] Speaker 01:
There's sufficient algorithms.

[00:05:11] Speaker 01:
Can you agree?

[00:05:12] Speaker 01:
The problem I have in this case is this control circuit clause is one of the worst written patent clauses I've ever seen.

[00:05:22] Speaker 01:
it has at least follow on phrases and clauses, it's almost incomprehensible.

[00:05:27] Speaker 01:
But can you explain to me why this has sufficient structure and sufficient algorithms and specification that even if it is 112 app, it's still definite?

[00:05:37] Speaker 01:
Yes.

[00:05:38] Speaker 03:
Let me follow on to that because this is a companion question.

[00:05:46] Speaker 03:
At the red brief at 56 and 57 bottom, it says that even if we determine that

[00:05:52] Speaker 03:
steps in the specification amount to an algorithm, there are additional factual questions that needed to be addressed.

[00:06:01] Speaker 03:
But we're not, and those questions were first, whether the disclosed algorithm can perform a function, and two, whether a person's skill would determine the algorithm is sufficient to define the structure.

[00:06:17] Speaker 03:
When you're answering Judge Hughes, tell me if you agree that those questions need to be addressed,

[00:06:22] Speaker 03:
And if so, where in the record they are addressed, and whether you refuted it in a biomass expert testimony matter.

[00:06:30] Speaker 03:
OK.

[00:06:30] Speaker 02:
To begin, the question of whether or not the business structure and the form of an algorithm in the specification can be answered on the appendix page 29.

[00:06:54] Speaker 02:
beginning our line is column three, line five, six, excuse me.

[00:07:02] Speaker 04:
We were just talking about the patents, so we'll call them which of them.

[00:07:05] Speaker 02:
Column three, excuse me, line six, it's appendix page 29.

[00:07:09] Speaker 02:
This paragraph goes at a step-by-step approach to lay out the

[00:07:19] Speaker 02:
the structures that would be performed in the microprocessor to determine the time when the torque reaches the maximum.

[00:07:31] Speaker 02:
And I think there's some context to be put in there.

[00:07:33] Speaker 02:
In order to determine the maximum, you have this torque that you're detecting along the way as you're drilling the screw into a structure.

[00:07:42] Speaker 02:
That torque, there's highs and lows, peaks and valleys.

[00:07:46] Speaker 02:
You've got to average all of that.

[00:07:49] Speaker 02:
And as you're detecting a new value, comparing it to an old value, the only time you can tell that you've reached the maximum torque is when you have a negative turn down.

[00:07:59] Speaker 02:
And that tells you you've hit the peak.

[00:08:00] Speaker 02:
So in order to determine when the torque has reached the maximum, you have to incorporate each of these steps.

[00:08:06] Speaker 02:
And these steps are the algorithms that are microprocessor performance and determining the time when the torque reaches the maximum.

[00:08:15] Speaker 02:
Now, as far as the,

[00:08:19] Speaker 02:
Underlying factual evidence supporting that whether or not this algorithm is adequate to satisfy the 112, I guess, requirements.

[00:08:28] Speaker 02:
I think that's a good question because the court did not do that analysis.

[00:08:32] Speaker 02:
It did not cite to any underlying factual issues.

[00:08:36] Speaker 02:
merely took a step further acknowledging this algorithm, the steps in the specification, and went on to say that it does not understand how this algorithm can be translated into a formula.

[00:08:50] Speaker 02:
Essentially adding a step in an analysis that doesn't exist.

[00:08:52] Speaker 04:
Was yours a legal argument that the wrong test was applied by the District Court Clause on an additional feature not required by our case law, which is that it be translated into a formula?

[00:09:03] Speaker 02:
Yes, Your Honor.

[00:09:04] Speaker 02:
The district court required, at least in their opinion, that they did not state, they did not understand how this could be translated into a formula.

[00:09:13] Speaker 02:
Which is not, and by research, I have not found any cases that require an algorithm to be translated into a formula.

[00:09:20] Speaker 02:
It can be in words.

[00:09:22] Speaker 02:
It doesn't have to be a mathematical object.

[00:09:25] Speaker 02:
It can be in workflow charts.

[00:09:26] Speaker 02:
It can be in mathematical formulas, as we have one in this particular day.

[00:09:30] Speaker 01:
Well, can you, maybe this isn't too much detail, but yeah, I find the words in this finding difficult.

[00:09:37] Speaker 01:
Can you just go through them and tell me where your specific structure in terms of each phrase?

[00:09:42] Speaker 01:
and whether that's disputed or not.

[00:09:46] Speaker 01:
The first one is detecting the torque of the motor.

[00:09:49] Speaker 02:
I assume that that's not disputed, that there's structure there, because it's a measurement of... Right, so detecting the torque is a measurement of the current as a voltage across the resistor.

[00:10:03] Speaker 02:
And the reason why I use the voltage is the voltage is corresponding to the torque.

[00:10:10] Speaker 02:
And so we use that as a torque value.

[00:10:14] Speaker 01:
Do you think that's disputed, that that's a sufficient algorithm to describe detecting the torque of the motor?

[00:10:22] Speaker 01:
Detecting the torque of the motor was not, I don't recall the disputed term.

[00:10:30] Speaker 01:
Can you go into the next one, that average means for determining the average value versus a function of the current value of the neutral?

[00:10:38] Speaker 01:
Yes, Your Honor.

[00:10:39] Speaker 01:
That's probably good to me, but is there an algorithm for that?

[00:10:43] Speaker 01:
Yes, Your Honor, there is an agreed applicable algorithm in the specification.

[00:10:47] Speaker 01:
So that's not disputed either, that there's an algorithm or structure for that?

[00:10:51] Speaker 01:
That's correct, Your Honor.

[00:10:53] Speaker 01:
And then the next one, is the next one the key determining a time when the torque reaches a maximum, thereby determining the optimum point of grip?

[00:11:04] Speaker 02:
So that is the disputed term.

[00:11:06] Speaker 02:
Here on the table, that's the term.

[00:11:09] Speaker 02:
It's the one where I identified column three being aligned to five that describes how you determine the maximum or the time when the torque reaches a maximum.

[00:11:19] Speaker 02:
But it also has to incorporate using the five-word here in the claim.

[00:11:24] Speaker 02:
The average means formula, it requires more than just one set of instructions or one set of algorithm steps.

[00:11:34] Speaker 02:
It incorporates local steps, as is shown in the specification and in the... I'll finish, I'm sorry.

[00:11:42] Speaker 02:
As I said, and in our brief throughout both of Pellis' briefs.

[00:11:47] Speaker 03:
Where in Judge Davis' opinion did he say that he was unable to locate... The appendix, page 22, Your Honor.

[00:12:02] Speaker 02:
Beginning in the top line, comparing claims to claim the algorithm and probe with the 683 patent language appears to lead at most to, at most, the conclusion that the steps, claims, lists are supportive of the patent language.

[00:12:14] Speaker 02:
However, it remains unclear how this language can be translated into a formula from which the optimum point of view can be detected.

[00:12:23] Speaker 04:
So even if we agree with you on the leave, that the district court applied the wrong standard, do we need to remand, or can we decide on this record as to the sufficiency of the structure?

[00:12:34] Speaker 02:
I believe that if this, this being a truly legal question, and this is a review of legal analysis performed by the lower court, this court can itself determine whether or not this algorithm is sufficient to add to the structure, or determine the time when the tort breaches a maximum.

[00:12:53] Speaker 04:
You're into your rebuttals, so why don't we have you sit down here and do the other side.

[00:13:03] Speaker 00:
Please, the court.

[00:13:05] Speaker 00:
Ken Wainer, on behalf of the Annapolis Violent Microfixation.

[00:13:08] Speaker 00:
The district court's judgment in this case should be affirmed because the asserted claims of the 683 patent all contain computer-implemented means plus function terms that are unsupported by a disposed algorithm.

[00:13:22] Speaker 03:
In the blue brief at 17, IAD argues that the district court inherited combining two distinct means plus function limitations into one.

[00:13:35] Speaker 00:
Do you disagree with that?

[00:13:37] Speaker 00:
Yes, we disagree.

[00:13:38] Speaker 00:
We think the means plus function term stated here is an average means.

[00:13:42] Speaker 00:
It's expressed to use as means.

[00:13:44] Speaker 00:
And the function that we're fighting about is this function of determining a time report which is a maximum.

[00:13:49] Speaker 00:
which is expressing links to the average means with the linking term by.

[00:13:53] Speaker 00:
That linkage is so clear that IED is now not disputing it with respect to claim one and the exact same phrase appears in claim two, excuse me, in claim six.

[00:14:04] Speaker 00:
So we think for the same reasons that is all a means plus function term and you need to have a supporting algorithm for that function.

[00:14:15] Speaker 00:
The,

[00:14:16] Speaker 00:
Evidence also supports that if you look at the specification, there's simply no disclosure of any surgery components for performing that function.

[00:14:24] Speaker 03:
The specification indicates that the optimum point of grip is detected with a decrease in current corresponding to a drop in torque.

[00:14:38] Speaker 03:
And the specification explains that the current is measured by the microprocessor.

[00:14:45] Speaker 03:
Isn't it?

[00:14:45] Speaker 03:
it clear how the claim infection works and when a person's skilled readily.

[00:14:51] Speaker 00:
I appreciate that.

[00:14:52] Speaker 00:
The evidence does not support that, Your Honor.

[00:14:54] Speaker 00:
The evidence on that question of how a person of ordinary skill in the art would view this is really only our evidence.

[00:15:00] Speaker 00:
There's two big pieces of evidence.

[00:15:02] Speaker 00:
Our expert, Brian Gore, submitted an unrebutted expert report on these questions.

[00:15:07] Speaker 00:
I'd elect him not to depose Mr. Gore or submit any contrary expert testimony of his own.

[00:15:12] Speaker 00:
So in terms of the factual questions here of whether a person of ordinary skill in the art would understand there to be sufficient structure or sufficient algorithm,

[00:15:20] Speaker 00:
The evidence is only his evidence that there's not sufficient structure, either in the claim or in the specification.

[00:15:26] Speaker 00:
In addition, we deposed their vendor, Mr. Smith.

[00:15:29] Speaker 00:
And he corroborated much of Brian Gore's testimony.

[00:15:32] Speaker 00:
We specifically asked him whether he had any circuitry components that could determine the time when torque reaches the maximum.

[00:15:38] Speaker 00:
And he said, no, he did that with an algorithm.

[00:15:40] Speaker 00:
He was trying to build the device.

[00:15:42] Speaker 00:
And then we asked him about his algorithm and said, well, walk us through these steps that he actually used when he tried to accomplish this.

[00:15:49] Speaker 00:
Those steps are not anymore in the patent.

[00:15:51] Speaker 00:
He acknowledged, I asked him specifically, whether those steps are in the patent in any form, whether source code or prose or anything, and they were not.

[00:16:01] Speaker 00:
And we talked through why those steps were used, and the reason is because if you're just looking for a decrease in torque, that doesn't tell you anything necessarily about the maximum.

[00:16:14] Speaker 00:
Right.

[00:16:14] Speaker 00:
Those can go up and down, as I understand it.

[00:16:16] Speaker 00:
Yeah, so to illustrate this, Your Honor, that point to appendix, it's in the GORE report appendix 1029 and 1030.

[00:16:32] Speaker 00:
And what we have here is a couple of examples of more realistic torque curves that our expert provided in his undergraduate report.

[00:16:42] Speaker 00:
And you can see that there's big changes in the torque.

[00:16:44] Speaker 00:
You see peaks all along the way.

[00:16:46] Speaker 00:
And if you're just looking for a decrease, you're going to stop at any one of those points that has nothing to do with the algorithm.

[00:16:53] Speaker 00:
And towards applying that, citing technical journals, that you're always going to get these fluctuations, regardless of any averaging or anything else.

[00:17:01] Speaker 00:
You're always going to see these points decrease along the torque curve.

[00:17:04] Speaker 00:
Therefore, you need more specific algorithm steps to allow you to accomplish that function.

[00:17:09] Speaker 00:
Those are the steps that Mr. Smith built into his undisclosed algorithm, the source code that wasn't provided in the patent.

[00:17:16] Speaker 00:
And those are the steps that are acknowledged to not be in the patent.

[00:17:20] Speaker 00:
So the evidence is uniform that there is no algorithm to support this function, that there's sort of a key piece.

[00:17:27] Speaker 00:
Critically, this is the key piece of this invention.

[00:17:30] Speaker 00:
So this isn't an add-on feature, a well-known function.

[00:17:34] Speaker 00:
This is what they're claiming as their point of novelty.

[00:17:36] Speaker 00:
The one thing in this patent that they're saying is new.

[00:17:39] Speaker 00:
And they haven't simply taught any algorithm to carry out that function.

[00:17:44] Speaker 00:
The district court found that, we believe, as a factual matter.

[00:17:48] Speaker 03:
Is it fair to summarize it as it's designed to get the screw as tight as it possibly can be before it reaches the stripping point?

[00:17:58] Speaker 00:
That's one reading of the intent of the invention.

[00:18:01] Speaker 00:
I think the claims here actually talk about determining the maximum.

[00:18:04] Speaker 00:
That's one of the points I wanted to emphasize today, is that this revised function that ID's trying to argue about determining a decrease,

[00:18:12] Speaker 00:
doesn't really align with the claim function as it's written in the independent claims.

[00:18:16] Speaker 01:
And ID themselves acknowledge this as part of the intrinsic record in the IPR proceeding in this case, where they said... But isn't that what they're using to describe as the algorithm, that you know it's the maximum because you determine, you use this averaging formulas to smooth out the...

[00:18:38] Speaker 01:
the send downs and it knows the maximum points that the optimum point is as close to that as you can get.

[00:18:45] Speaker 01:
That's what they're saying now.

[00:18:48] Speaker 01:
And our answer to that in the specification, it says, you know, you determine the time, or at least you're pointing to

[00:18:55] Speaker 01:
The part of the specification that the determining a time when the torque reaches the maximum is when there's a decreasing current corresponding to a drop in the torque.

[00:19:06] Speaker 01:
Torque is detected at the optimum point.

[00:19:09] Speaker 01:
There are references in the specification to that, Ron.

[00:19:12] Speaker 01:
You're correct.

[00:19:12] Speaker 01:
Why isn't that last phrase that I read an algorithm?

[00:19:15] Speaker 01:
It's a pretty simple one.

[00:19:17] Speaker 00:
Looking for an increase in torque?

[00:19:19] Speaker 01:
Yeah.

[00:19:20] Speaker 01:
It's detected at the optimum point.

[00:19:22] Speaker 01:
Right.

[00:19:24] Speaker 01:
I understand this is done retrospectively, so it's never going to be, you know, you absolutely get to the maximum and it shuts off instantly, because you can't determine it.

[00:19:36] Speaker 01:
But it's going to do, as soon as it drops off, it's going to shut it off.

[00:19:40] Speaker 00:
Right, so two points in response to that question.

[00:19:42] Speaker 00:
The first is that in the IPR, ID had a different interpretation of this function, saying it was actually about determining a point before you see any decrease.

[00:19:52] Speaker 00:
That's very clearly stated in index 1666.

[00:19:55] Speaker 00:
But moving on to the other part of your question, whether that's an algorithm or not, that's what our expert Brian Gore addressed.

[00:20:01] Speaker 00:
He said determining slope is not necessarily a simple calculation.

[00:20:05] Speaker 00:
There are multiple ways that a person of ordinary skill could attempt to do that.

[00:20:09] Speaker 00:
Many of which would lead to a different result.

[00:20:11] Speaker 00:
So for example, in the Dow Chemical case, that's not a means plus function case, but it's talking about slope.

[00:20:17] Speaker 00:
And it's specifically since there's multiple different ways some of you try to determine slope, and you need to have more specific steps to do that.

[00:20:22] Speaker 01:
This all relies on your expert opinion.

[00:20:27] Speaker 01:
What if we just look at the intrinsic record and don't go to your expert?

[00:20:30] Speaker 01:
Right, I still don't believe there's an option.

[00:20:32] Speaker 01:
It's not clear to me that this district court actually relied on your expert or whether your expert was actually operating under department claim instructions.

[00:20:42] Speaker 00:
We do think it's clear that the district court relied on your expert.

[00:20:44] Speaker 00:
I know.

[00:20:46] Speaker 01:
Let's assume I disagree with you.

[00:20:49] Speaker 01:
You're suggesting that detecting a decrease in current corresponding to the drop is not a sufficient algorithm.

[00:20:57] Speaker 01:
The only thing that when you tell me why it's not is that your expert said it's not.

[00:21:02] Speaker 00:
Right.

[00:21:03] Speaker 00:
And under the NOAA case, this court's held that in order to determine whether an algorithm is sufficient, it's necessary to look to extrinsic algorithms to look expert at.

[00:21:12] Speaker 01:
Well, it's not always necessary.

[00:21:14] Speaker 01:
If the specification has an algorithm that shows steps to how to do it, then isn't that sufficient?

[00:21:20] Speaker 00:
Under the NOAA case, it held that if there's no algorithm in the specification, that's an issue that can be decided without forensic evidence.

[00:21:27] Speaker 00:
If there is alleged to be an algorithm, then the question becomes whether that algorithm is sufficient.

[00:21:32] Speaker 00:
And that question is judged from the perspective of personal learning skill.

[00:21:35] Speaker 00:
The argument is when an expert testimony becomes required part of that analysis.

[00:21:40] Speaker 00:
And here we have both the testimony of Gore supporting that, as well as the testimony of Smith.

[00:21:47] Speaker 00:
supporting that he needed more detailed steps that weren't disclosed as well.

[00:21:51] Speaker 00:
So both of those pieces of evidence support that.

[00:21:53] Speaker 00:
I also believe that just looking at the specification, it's an incredibly brief specification with no description of any detailed steps to carry out the function.

[00:22:02] Speaker 01:
So I think- There's not a particularly complicated convention either.

[00:22:05] Speaker 01:
There's a screwdriver that has the steps to make sure it doesn't strip out because it, you know, reduces or shuts the motor off after it reaches the optimum maximum value.

[00:22:19] Speaker 00:
Respectively, I think there is some complication there.

[00:22:21] Speaker 00:
This is a software-based patent.

[00:22:24] Speaker 00:
This is trying to accomplish finding something that's a very particular point in time.

[00:22:27] Speaker 00:
In fact, during the prosecution of these claims, the patentee argued with respect to the Thompson argument.

[00:22:34] Speaker 00:
It was the Thompson hierarchy.

[00:22:35] Speaker 01:
So for a software patent, how much do you have to do in terms of disclosing function?

[00:22:40] Speaker 01:
Can't you just describe blow charts or words?

[00:22:44] Speaker 01:
These are the steps it's going to take.

[00:22:45] Speaker 01:
They don't have to provide code, do they?

[00:22:48] Speaker 00:
They don't have to provide code.

[00:22:49] Speaker 00:
They could have done that with prose.

[00:22:51] Speaker 00:
And the amount of detail that's required is context-specific.

[00:22:54] Speaker 00:
So it depends on what the invention is.

[00:22:55] Speaker 01:
And it doesn't have to be translated into a mathematical formula.

[00:22:59] Speaker 00:
To be clear with regard to that question, in particular, on what the order said, I think that's a mischaracterization of the order, saying it was requiring some sort of translation.

[00:23:10] Speaker 00:
The quote is,

[00:23:13] Speaker 00:
It remains unclear how this language can be translated into a formula from which the optimum grip can be detected.

[00:23:20] Speaker 00:
So if they're setting forth these steps... Are we talking about A22?

[00:23:23] Speaker 04:
Is that what you're reading from?

[00:23:25] Speaker 00:
Yes, exactly.

[00:23:26] Speaker 00:
Appendix 22.

[00:23:28] Speaker 00:
If you're looking at these steps that they set forth and that ID sets forth in their brief, those steps don't correspond to this function.

[00:23:35] Speaker 00:
And the one step that arguably relates to it at all is step five, where they say, determine a decrease in torque.

[00:23:41] Speaker 00:
The other steps are repeating other claim limitations that are unrelated to this function.

[00:23:46] Speaker 00:
And that step doesn't give you- Isn't there a decrease in torque just enough?

[00:23:51] Speaker 01:
Isn't that all it's required to determine what the optimal value is?

[00:23:55] Speaker 03:
We've made it clear for everyone into what these screws are being driven.

[00:24:03] Speaker 00:
It depends if you're talking about the invention of IE or our accused product.

[00:24:09] Speaker 00:
I think the invention generally applies to screwdrivers of any type.

[00:24:13] Speaker 00:
A particular accused product is a surgical screwdriver that drives screws into the cranium to seat surgical plates.

[00:24:21] Speaker 00:
But to come back to your question... They don't want to redo it.

[00:24:24] Speaker 00:
Excuse me?

[00:24:26] Speaker 00:
Right?

[00:24:27] Speaker 00:
You don't want to have a view.

[00:24:28] Speaker 00:
The way I do it, I want to do it.

[00:24:31] Speaker 00:
Yes.

[00:24:31] Speaker 00:
So to come back to your question, that's what I was trying to address at the beginning with those figures from the Gore report, where they show that you've got these multiple decreases throughout the torque curve.

[00:24:43] Speaker 00:
And in order to perform the function, this plan here of determining maximum or even anything close to maximum, you need to distinguish between what decreases in torque do I care about, which decreases get me close to the maximum,

[00:24:56] Speaker 00:
and which don't.

[00:24:57] Speaker 00:
And there's nothing in their alleged algorithm that does that.

[00:25:00] Speaker 00:
If you look at their steps, the word maximum doesn't even appear in those steps.

[00:25:04] Speaker 00:
And our experts specifically explain why, if you try to implement those steps, you'd stop way before you get anywhere close to the point of maximum toward.

[00:25:13] Speaker 00:
So we think the evidence here, regardless of the standard of review, we do think there should be deference provided in this report's fact-finding.

[00:25:20] Speaker 00:
But regardless, the evidence is the evidence

[00:25:22] Speaker 00:
And the record here is unrebutted evidence that this algorithm that they're pointing to is not a sufficient algorithm to perform this function.

[00:25:32] Speaker 00:
Therefore, we would ask that this judgment be affirmed.

[00:25:35] Speaker 00:
And unless there are any other questions, I'll be at the rest of the time.

[00:25:39] Speaker 00:
Thank you.

[00:25:52] Speaker 01:
Can you respond to his last point that we just don't know how even if we agree that the formula is you shut this off right after it reaches the maximum and it's okay to do it retrospectively, it still doesn't tell you how to calculate the maximum.

[00:26:11] Speaker 02:
Well, we're determining the maximum, not calculating the maximum.

[00:26:15] Speaker 02:
We're determining that we've gone past the maximum.

[00:26:17] Speaker 01:
Well, how do you determine whether it's a maximum?

[00:26:19] Speaker 01:
I mean, I think he's right that there's, you know, when you're doing it, and I think you agree that there are lots of ups and downs.

[00:26:25] Speaker 01:
So when do you know that you've actually reached the maximum after a down, rather than there's a down midway through to the maximum?

[00:26:35] Speaker 02:
I think your point is that we solve the problem with the peaks and valleys, the ups and downs, by averaging

[00:26:41] Speaker 02:
those values.

[00:26:42] Speaker 01:
So you think it's the averaging portion that does all that and from that

[00:26:47] Speaker 01:
you can retrospectively determine which was the maximum, and right after that is the optimum.

[00:26:55] Speaker 02:
Yes, that's the invention here.

[00:26:56] Speaker 02:
We wanted to be able to automatically stop the screwdriver before we stripped, in the medical advice case, any bone and happen to re-tap a hole.

[00:27:05] Speaker 02:
It's very critical to get the optimum grip.

[00:27:08] Speaker 02:
You don't want to be too early, because if you are, then you don't have the proper grip between the material you're trying to screw.

[00:27:15] Speaker 02:
ID solved that with this invention and therefore we don't have these peaks and valleys that we normally have to account for.

[00:27:25] Speaker 01:
So that averaging thing gives you a line that actually does give you a maximum value and you know it's maximum value although maybe only right after it's reached by that averaging formula.

[00:27:37] Speaker 03:
That's correct.

[00:27:38] Speaker 03:
Do you agree that

[00:27:41] Speaker 03:
the district court did rely on the Gore declaration.

[00:27:46] Speaker 02:
Your Honor, that's an interesting point to make.

[00:27:47] Speaker 02:
The only two paragraphs the district court cited in one of the final sentences in its order is not on the appellate record.

[00:27:55] Speaker 02:
So the only references to the paragraph 76 or 77 of the Gore report isn't here.

[00:28:01] Speaker 02:
We don't even know what those paragraphs say at this point.

[00:28:04] Speaker 02:
There is no other mention to the Gore report.

[00:28:08] Speaker 03:
Wait a minute.

[00:28:09] Speaker 03:
Wait a minute.

[00:28:10] Speaker 03:
Do you want to read it or should I?

[00:28:13] Speaker 03:
Plan's proposed construction is further undercut by the undisputed expert testimony of Brian Gore, who, among other things, testified that the microprocessor and so on.

[00:28:28] Speaker 03:
And he cites those two paragraphs.

[00:28:30] Speaker 03:
So he's not limiting himself to those two paragraphs, is he?

[00:28:36] Speaker 02:
Well, I would say the district court has loaned themselves to citation to those two paragraphs, but they're not in the appellate record.

[00:28:41] Speaker 02:
That being said, if the district court is here relying upon that expert report, we don't know what, among other things, means.

[00:28:48] Speaker 02:
It doesn't underrule the rules.

[00:28:50] Speaker 03:
The judge doesn't need to lay it all out.

[00:28:53] Speaker 02:
No, but in critical facts underlying a specific opinion, those facts must be laid out under Rule 52.

[00:28:58] Speaker 03:
He says it's supported by unrebutted facts in the declaration.

[00:29:06] Speaker 03:
You don't think that's enough?

[00:29:08] Speaker 03:
What if he hadn't said anything about anything else?

[00:29:10] Speaker 03:
He just said, it's supported by unrespected fact.

[00:29:13] Speaker 02:
Can you do that?

[00:29:15] Speaker 02:
I would submit that that would be insufficient under Rule 52 to establish a fashion finding.

[00:29:23] Speaker 03:
You said to me that when I asked you about, you made a statement, and my recollection could be wrong,

[00:29:36] Speaker 03:
But I took the statement you made as saying the judge said he simply didn't understand the allegory.

[00:29:54] Speaker 03:
And you referred me to page 20 at the top, where he said it's unclear, which is a different phrase.

[00:30:03] Speaker 03:
And I thought you were going somewhere else.

[00:30:05] Speaker 03:
I thought you were sort of misreading, in the sense that the judge refers around 17 at the bottom, where he talks about the PTAB review, and then saying they were unable to locate any disclosure and so on.

[00:30:25] Speaker 03:
And I thought that that's where you were going when you said that.

[00:30:28] Speaker 03:
You had just misspoken about who did what.

[00:30:31] Speaker 03:
But I don't take somebody saying something as unclear as saying I don't get it.

[00:30:40] Speaker 03:
And that was worth it.

[00:30:41] Speaker 03:
I'm giving you a chance to respond, because that was the question I was trying to ask you.

[00:30:45] Speaker 03:
And you said, well, 20.

[00:30:49] Speaker 02:
Yes, Your Honor, and that's what we have there.

[00:30:52] Speaker 02:
It's just the report stating that it remains unclear how this language can be translated into a formula from which the optimal point of view can be detected.

[00:31:00] Speaker 02:
To me, that tells me that they're looking for a specific description and specification to allow for translation of a series of steps or algorithms into a formula to perform the claim function.

[00:31:18] Speaker 03:
I think I would find your saying in effect, the judge didn't get it, didn't understand it.

[00:31:26] Speaker 03:
And that's why I was asking you about that, because I thought you had gone off on what Pete had said.

[00:31:32] Speaker 03:
But to me, that was amazing.

[00:31:34] Speaker 03:
I wanted to give a chance to clarify that further.

[00:31:39] Speaker 03:
Sure.

[00:31:40] Speaker 04:
Well, unfortunately and fortunately for you, the time is up.

[00:31:44] Speaker 04:
So thank you.

[00:31:44] Speaker 04:
We thank both sides.

[00:31:46] Speaker 04:
The case is submitted.