[00:00:06] Speaker 01: The final case for argument is 181248, me versus outcome. [00:01:08] Speaker 00: First, I want to say it's an honor to be here and thank you so much for your consideration. [00:01:16] Speaker 00: I'm Elizabeth Merrill and I represent the petitioner and plaintiff here, Dr. Joseph Neve. [00:01:22] Speaker 00: And there are two main issues that I'd like to discuss and I was hoping to use my time equally between the two. [00:01:27] Speaker 00: The first is regarding the 199 patent and its whether limiting claims to a preferred embodiment [00:01:34] Speaker 00: where the specification shows the invention is broader, is appropriate. [00:01:39] Speaker 00: And the second is relating to the 926 patent, and it's whether admission by a defendant to the FDA regarding the safety of their product in order to seek approval to sell this product to the public should have been permitted to go to the jury. [00:01:55] Speaker 01: Can I just ask you a question? [00:01:57] Speaker 01: Logistical question about the 926, which is there's been a final, as I understand from the record, there's been a final action rejecting all the claims by the patent office. [00:02:09] Speaker 01: What's the status of that proceeding? [00:02:12] Speaker 00: There's been an appeal filed and that appeal is still pending. [00:02:15] Speaker 01: An appeal here or an appeal before the board? [00:02:17] Speaker 00: I'm not handling that case, but it's an appeal to the district court. [00:02:27] Speaker 00: To the patent board, I apologize. [00:02:31] Speaker 02: Okay, so it's maybe still somewhere in the middle of the briefing in front of the patent board? [00:02:37] Speaker 00: Yes. [00:02:37] Speaker 00: That's my understanding. [00:02:39] Speaker 00: So there is a possibility. [00:02:41] Speaker 00: I mean, we believe that there's a good chance it'll be overturned, that there are some good issues. [00:02:46] Speaker 00: Otherwise, we wouldn't be proceeding here and wasting the court's time in that regard. [00:02:51] Speaker 01: But here, there's no validity issue pending on the 926. [00:02:54] Speaker 01: It's just the infringement. [00:02:56] Speaker 00: before this court. [00:02:57] Speaker 00: No, there's none. [00:02:59] Speaker 00: It's just the issue, there's the issue about the inequitable estoppel that we raised and then the other issue that I wanted to mainly focus on which is whether in summary judgment the judge was appropriate [00:03:11] Speaker 00: and not allowing the issue of the FDA admission to go in front of the jury. [00:03:15] Speaker 00: And we believe that that should have been something that went in front of the jury and not decided on summary judgment. [00:03:21] Speaker 00: So defendants responded to the question by the FDA asking, well, let me back up just a moment. [00:03:29] Speaker 00: The limitation in the patent of the 926, the second issue that I wanted to talk about, requires no thermal damage further than five microns. [00:03:38] Speaker 00: Okay. [00:03:39] Speaker 00: And the defendants responded in a question directed to them by the FDA asking whether their laser causes thermal damage. [00:03:47] Speaker 00: And the response under oath was there's no thermal damage. [00:03:50] Speaker 00: So no thermal damage is less than five microns. [00:03:54] Speaker 00: And our position is that all arguments by defendants should have gone to the weight of the evidence rather than serve as a complete bar to plaintiff's right to present these facts to the jury. [00:04:04] Speaker 02: Did you submit any expert testimony or anything? [00:04:07] Speaker 02: My understanding is the [00:04:09] Speaker 02: The sole source of evidence you have is this FDA submission. [00:04:15] Speaker 02: And then the other side came forward with an expert testifying that [00:04:20] Speaker 02: Well, whatever the contents of the FDA submission, you can't understand what's going on here as being a true zero micron thermal damage, because that's a physical impossibility. [00:04:32] Speaker 02: And then explain that through an expert declaration. [00:04:36] Speaker 02: And so that, to me, then raises the question of why isn't this case similar to our central cut opinion, where we said, OK, [00:04:47] Speaker 02: There's evidence in the record that rebuts this allegation about how to interpret this FDA submission, and there isn't any expert testimony on the other side. [00:04:59] Speaker 00: Well, the problem I have with the expert testimony is, first of all, you have an admission under oath as the safety of the product. [00:05:07] Speaker 00: you know, to the FDA, okay, versus a highly paid expert who admit, who there's no evidence that they conducted any testing whatsoever on this. [00:05:18] Speaker 00: So these are just theoretical ideas that they're putting forth, and I think a reasonable jury should be given the opportunity to determine what has more weight. [00:05:26] Speaker 00: I mean, when we're, as a member of the public, we are entitled to rely upon what defendants tell the FDA. [00:05:32] Speaker 01: argument is that what they told the FDA says is that it lets thermal side effects and that is not the same as thermal damage. [00:05:45] Speaker 00: So if you look at [00:05:49] Speaker 00: The request from the FDA, so it's at appendix 3778, section 3 is where the issue was framed. [00:05:57] Speaker 00: It says, you've stated that the increase in the pulse rate from 15 kilohertz to 33 kilohertz does not adversely affect the safety or effectiveness of the cuts needed for the proposed indications. [00:06:09] Speaker 00: We've not provided adequate evidence. [00:06:12] Speaker 00: And then they ask that you provide adequate evidence on the following. [00:06:15] Speaker 00: And they have three sections, an A, B, and C. [00:06:17] Speaker 00: And if you go to appendix 3783, they have that section, the request. [00:06:24] Speaker 00: And the request was, temperature elevation data from tissue adjacent to cuts to confirm that the higher rate is not producing thermal damage. [00:06:34] Speaker 00: So it's the same thing we're talking about here in the patent claims, thermal damage. [00:06:38] Speaker 00: Is there thermal damage past where the laser is touching the tissue? [00:06:42] Speaker 00: And their response to the FDA is at appendix 3783. [00:06:46] Speaker 00: It says, as shown in figure 3B above, thermal side effects were not seen at any laser repetition rate tested. [00:06:55] Speaker 00: So their response and their statement of their thermal side effects was in response to the FDA request of whether there's thermal damage. [00:07:04] Speaker 00: And then they continue to state, therefore, there's insufficient time for thermal energy to diffuse into the surrounding tissue. [00:07:13] Speaker 00: The absence of thermal side effects is one of the advantages of plasma-mediated photo disruption for tissue cutting. [00:07:20] Speaker 00: So I understand that their statement says thermal side effects, but it was in direct response to the FDA request of whether there's thermal damage. [00:07:29] Speaker 00: I mean, and the FDA understood it to be that. [00:07:33] Speaker 00: So with respect to, and then if you look at the statement, there's evidence from the experts and from their testimony that the lower the femtosecond rate, so if you go from 800 to 600, you'll get even less damages and less thermal side effects. [00:07:55] Speaker 00: And then we show the wave light, there's evidence that their femtosecond is at 350 femtoseconds. [00:08:02] Speaker 00: So you're going to get, their own scientists have said that shorter wave pulse lengths result in less collateral damage to the surrounding tissues. [00:08:11] Speaker 02: It's interesting, you're the plaintiff and you're using all of these [00:08:17] Speaker 02: statements from the defendant's side to prove your case of infringement. [00:08:22] Speaker 02: I'm just curious, why didn't you run any tests on the accused lasers to figure out whether or not they meet the claim limitations? [00:08:34] Speaker 00: These lasers are used for eye surgery. [00:08:37] Speaker 00: These lasers are marketed, and the FDA has represented that they cause no damage. [00:08:43] Speaker 00: I mean, no one wants a laser to cut into your eye and cause damage to the surrounding tissue. [00:08:49] Speaker 00: And that's what these are touted to do. [00:08:51] Speaker 00: And when you have an FDA statement as to the safety of it, that there's no damage, whatever an expert says, I mean, that's the admission that's there. [00:09:02] Speaker 00: That should be sufficient. [00:09:06] Speaker 00: So turning to the preparation of the target region limitation, the 199 patent. [00:09:12] Speaker 00: teaches changing the scattering and the absorption characteristics of target material to affect how a laser interacts with the material. [00:09:20] Speaker 00: So claim one specifically says preparing the target region by spatially and temporally varying at least one absorption characteristic or scattering characteristic of the material. [00:09:31] Speaker 00: So basically you have light coming into the material and it's either going to be absorbed or scattered and you make changes to the material to change how that [00:09:40] Speaker 00: light, the lasers who are doing the modification of the tissue are going to be affecting the tissue. [00:09:47] Speaker 00: And so the court made a construction that applies, that referenced a preparation or an agent. [00:09:54] Speaker 00: And nothing in the claims talks about a preparation or agent. [00:09:57] Speaker 00: They say that they need, and interpreted it later in summary judgment to mean that you have to add a substance. [00:10:03] Speaker 00: And the requested construction was actually a construction that was decided and approved by a previous court as well in the district of Delaware. [00:10:14] Speaker 00: So our position is that claims, you know, just as CAR-TEC V-STAMP says, claims not the specification embodiments define the scope of the patent protection. [00:10:26] Speaker 00: Patney is entitled to the full scope of those claims and will not limit it to his preferred embodiment or import a limitation from the specification to the claims. [00:10:35] Speaker 00: And if you look at the plain meaning of preparing a target region by spatially or temporally varying at least one absorption characteristic of the material or scattering characteristic of the material, this is easily understood. [00:10:49] Speaker 00: Nothing in the plain meaning implies requirement of a component or a substance. [00:10:53] Speaker 00: Nothing in the plain meaning. [00:10:54] Speaker 02: We do have cases though, don't we, that say when a particular claim limitation, claim step is described repeatedly and consistently throughout the written description to be referring to something and that something is understood to be part of the claim limitation. [00:11:14] Speaker 02: Yes, so if if we were to read the specification here is consistently and repeatedly contemplating the addition of some kind of agent Application of some kind of agent to the preparation of the target region [00:11:32] Speaker 02: then wouldn't it be appropriate under that instance for the court to understand the preparation of a target region limitation to be all about adding an agent? [00:11:46] Speaker 00: I do understand that case. [00:11:48] Speaker 00: I think that GPNE was one of those that was cited. [00:11:51] Speaker 00: And the language that was used in the case is when a patent repeatedly and consistently characterizes a claim term in a particular way. [00:11:57] Speaker 00: Here, we're not dealing with a claim term that's being characterized a certain way. [00:12:02] Speaker 00: The claim terms themselves are the preparing the target region by varying [00:12:09] Speaker 00: absorption characteristics or scattering characteristics of the material. [00:12:13] Speaker 00: And then what the other side is doing is taking the word agent, which isn't even part of the claim term, and then trying to import it into the claim term using this law. [00:12:24] Speaker 00: But it's not even part of the claim term. [00:12:27] Speaker 00: It doesn't fall under this law. [00:12:28] Speaker 00: And second, you don't have a repeated and consistent characterization of a claim term. [00:12:33] Speaker 00: The work prepared in any form appears in the entire 90 page patent only three times. [00:12:40] Speaker 00: So how could you possibly have a consistent and repeated characterization in that regard? [00:12:47] Speaker 00: And then when you have other areas, like for example, [00:12:52] Speaker 00: In appendix, and I'm getting into my rebuttal time, but in appendix 171, you have a distinct fourth exemplary method that doesn't refer to agents at all. [00:13:04] Speaker 00: You also have language that talks about the selective location may be naturally inserted or induced artificially. [00:13:12] Speaker 00: And I think I'll reserve some of this for rebuttal if it continues to come up because my time is short. [00:13:17] Speaker 00: But I thank you so much. [00:13:31] Speaker 03: May it please the court, Brian Matsui on behalf of ALCON. [00:13:35] Speaker 03: The district court's judgment should be affirmed. [00:13:37] Speaker 03: I'd like to start with the 199 patent and then turn to the 926 patent. [00:13:42] Speaker 03: For the 199 patent, the district court construed a technical term in a technical field preparing the target region of the target material by spatially or temporally varying. [00:13:53] Speaker 03: And it gave that term the only meaning that's supported by the intrinsic record. [00:13:57] Speaker 03: Under this court's basic claim construction rules, when there is no single ordinary plain meaning to a term, when the patent repeatedly and uniformly describes a term one way and does so with language like key to the present invention, the patentee cannot evade that context in the specification and contort his claims to something else. [00:14:19] Speaker 04: Let me tell you what's troubling about this. [00:14:24] Speaker 04: What is your view [00:14:25] Speaker 04: of the court's action in striking the expert deposition and rebuttal. [00:14:34] Speaker 03: Of striking the expert testimony, Your Honor? [00:14:35] Speaker 04: Yes. [00:14:36] Speaker 03: Well, that was an enforcement of the local patent rules. [00:14:40] Speaker 03: It's under an abuse of discretion standard, Your Honor. [00:14:43] Speaker 04: Never mind the standard. [00:14:44] Speaker 04: What is your view of what is achieved or not achieved by that action? [00:14:50] Speaker 03: I think that that was entirely proper given the fact that the original infringement contentions in this case only discussed a patient interface for the preparing step. [00:15:01] Speaker 03: There was no discussion at all of anything like eye drops that could satisfy the preparing limitation. [00:15:09] Speaker 03: And given that fact, [00:15:11] Speaker 03: the district court was well within its discretion to strike the expert submission in that case. [00:15:18] Speaker 03: I think that under this court's precedent, the only way that it would overturn the enforcement of local rules would be if it's unreasonable, arbitrary, or fanciful. [00:15:29] Speaker 03: And I think when we're talking about [00:15:31] Speaker 03: the fact that in the original infringement contentions, this additional way to practice the limitation, alleged way to practice the limitation, was not at all disclosed. [00:15:41] Speaker 03: The judicial court certainly had it within its enforcement powers to set that aside and say that you could not rely upon that expert testimony. [00:15:49] Speaker 03: I think that if we take a step back and look at what [00:15:52] Speaker 03: Neve is arguing here, and that's very clear in his reply brief at pages 19 to 20, he's basically saying that all he needs to do is say that our accused device practices this element. [00:16:07] Speaker 03: And then once he's said that, he can come back [00:16:10] Speaker 03: at the end of the case, later in the case, before trial, and say, these are all the ways now in which I think that your device practices that element. [00:16:19] Speaker 03: But the rules here require much greater specificity. [00:16:22] Speaker 03: They require where and how each limitation in the certain claim is found in the device. [00:16:28] Speaker 03: And he didn't do that. [00:16:30] Speaker 03: And so given that fact, it is within the district court's power to enforce its local rules and strike the report. [00:16:38] Speaker 03: Again, and just one more point on this, [00:16:41] Speaker 03: Dr. Neve here, he never asked to amend his infringement contentions. [00:16:45] Speaker 03: So we're looking at a situation where he just unilaterally changed his infringement contentions. [00:16:51] Speaker 03: And this is a case that was involved at the time when this case began. [00:16:56] Speaker 03: Many multiple parties, a number of patents. [00:16:59] Speaker 03: It was very complex. [00:17:00] Speaker 03: There were a lot of deadlines that were missed. [00:17:03] Speaker 03: This is a case in which the district court had a lot of power under its case management rules to say that it was too late now for him to. [00:17:11] Speaker 04: So you're saying that if issues are raised in the defense, that the plaintiff has no opportunity to respond to them if the issues were not foreseen and responded to before they were raised? [00:17:27] Speaker 03: I think that in that situation, [00:17:30] Speaker 03: Neve could have filed a motion to amend his infringement contentions. [00:17:34] Speaker 03: And then the district court could have decided what to do, how that was going to affect the proceedings, and what steps should be taken. [00:17:43] Speaker 03: But here, in this situation, he didn't do that. [00:17:45] Speaker 03: He just unilaterally changed his infringement theory and submitted expert testimony about something entirely different. [00:17:53] Speaker 03: And that's not the way that the process is supposed to work under the local rules. [00:17:57] Speaker 04: The way the process is supposed to work is to provide a fair trial where each side has an opportunity to respond to what the other side raises. [00:18:09] Speaker 04: And the local rules that have been adopted in patent cases certainly serve an important purpose because they avoid sandbagging the other side with new issues. [00:18:25] Speaker 04: arguments raised that this plaintiff had no opportunity to respond to? [00:18:32] Speaker 03: I don't see how this plaintiff had no opportunities to respond to these arguments. [00:18:37] Speaker 03: From the very beginning, Neve is the one that gets to say, this is the way in which the accused devices practice the limitations. [00:18:46] Speaker 03: He set forth his reasons why he thought that our devices practice these limitations. [00:18:52] Speaker 03: And then after fact discovery closes, he changes his theory. [00:18:57] Speaker 03: The district court in that situation has the right to say that would not be fair after discovery is closed. [00:19:04] Speaker 04: We have to respond to the theory raised by the defense. [00:19:08] Speaker 04: Sounding of theory, let us say. [00:19:11] Speaker 04: But don't the principles of fair trial require such an opportunity? [00:19:20] Speaker 03: I think that the... [00:19:22] Speaker 03: Neve had the opportunity here in this case to set forth infringement contentions that would address this limitation. [00:19:31] Speaker 03: He did. [00:19:32] Speaker 03: It's a matter of a fair trial for the defendant to know the way in which that limitation was practiced. [00:19:40] Speaker 03: so it could conduct discovery on the issues, so it could look at its invalidity contentions based upon those infringement contentions. [00:19:47] Speaker 03: It's too late, after discovery has closed, after invalidity contentions have already been submitted, for him now to say, I have a new theory of infringement. [00:19:57] Speaker 03: But even setting that aside, as a matter of fair process, [00:20:01] Speaker 03: If the case had changed in a way that he then wanted to introduce new infringement contentions, the appropriate mechanism for him to do that would have been to ask the district court to amend them. [00:20:14] Speaker 03: The inappropriate way for him to do that is to unilaterally change his infringement theory and spring that upon Alcon. [00:20:24] Speaker 03: Now, I'd like to just turn back to the 199 patent briefly on the claim construction issue, just to say that this is the type of case in which it repeatedly and uniformly discusses adding an agent in this technical term. [00:20:41] Speaker 03: This case is like the GPNE case. [00:20:43] Speaker 03: In fact, it's a step further from that, where there might have been [00:20:47] Speaker 03: a plain and ordinary meaning of the term node, which then was held to be a pager. [00:20:53] Speaker 03: But here, you're talking about a claim which has, at Appendix 170, a section entitled Principles of Operation, Use of Doping Agents, and Selective Marking of Targeted Regions within the Material. [00:21:07] Speaker 03: And the patent uses language like key to the practice of the present invention, and then just discusses the use of an agent. [00:21:14] Speaker 03: So you have in here a situation where you don't have a term in which there is a plain and ordinary meaning that a person of ordinary skill would understand outside the context of the patent. [00:21:27] Speaker 03: And the only way that you can discern what that meaning is, is by looking to the specification. [00:21:32] Speaker 03: And when you look at the specification, the patent exclusively and consistently and uniformly describes using an agent in this claim. [00:21:43] Speaker 01: What about the other patent? [00:21:46] Speaker 01: Is it 926? [00:21:47] Speaker 01: Certainly, Your Honor. [00:21:48] Speaker 01: And your friend's argument with respect to why the FDA submission was sufficient to create a reasonable question of fact, given that it appeared that the response was about thermal damage and not really about side effects. [00:22:03] Speaker 03: So again, I think just to reiterate, Neve submitted no expert testimony about this document at all. [00:22:09] Speaker 03: It was about an issue that's entirely different than the 926 patent. [00:22:13] Speaker 03: What we have here is an FDA document in which Alcon already has an indication [00:22:18] Speaker 03: And it wants to get an additional indication. [00:22:21] Speaker 03: And so what it's doing is it's doubling the pulse repetition rate. [00:22:25] Speaker 03: And the FDA wants to know if this is going to affect safety and efficacy. [00:22:31] Speaker 03: And in that context, what ALKON is saying is there's no such thermal side effects. [00:22:37] Speaker 03: And what it means is that it's not causing additional harm to the already approved indication. [00:22:45] Speaker 03: And so in order for Neve to have an argument here based upon this FDA document, he would have to have some evidence that explained that when the FDA is talking about thermal damage and ALKON is talking about thermal side effects in the process of trying to get an additional indication, that means the same thing with respect to the 926 patent of the very precise microscopic limitation of no more than five microns below the disruptions. [00:23:15] Speaker 03: And there is no evidence in here. [00:23:17] Speaker 03: There is an absolute and complete failure of proof. [00:23:20] Speaker 03: And so one could not imagine if this case did proceed to trial that all Neve would have would be this FDA document and he would show that to the jury. [00:23:30] Speaker 03: That's not enough for a reasonable fact finder to determine that this very specific limitation in the 926 patent of no more than five microns is satisfied. [00:23:41] Speaker 03: I think that if you look at what... [00:23:44] Speaker 02: What if Alcon's submission to the FDA said there is zero thermal damage? [00:23:51] Speaker 03: I think that that still, Your Honor, would depend upon the context, because thermal damage for the FDA, when you're talking about... There is 0.00 micron damage. [00:24:00] Speaker 03: If I think that, yes, if it was talking about the specific limitation, there's zero microns of thermal damage from the cavity, [00:24:10] Speaker 03: then I think that that might be a different issue. [00:24:12] Speaker 03: But what we have here is no idea what thermal damage means in the context of FDA submission. [00:24:19] Speaker 03: And I think that's important when you look at what our engineer explained in his deposition. [00:24:23] Speaker 03: He said that [00:24:26] Speaker 03: Our engineer discussed, and this is at appendix 4880, that when you're talking about the precise thermal damage in the 926 patent, it's different. [00:24:34] Speaker 03: He said, it's a matter of measurement. [00:24:37] Speaker 03: It's not the thermal damage, as we discussed, perceived, observed by necessarily clinicians. [00:24:42] Speaker 03: But there is thermal damage, and I don't know if five microns is a good threshold. [00:24:46] Speaker 03: It's likely deeper than five microns. [00:24:48] Speaker 03: And so what he's talking about is that if you're talking about clinicians, people that are using the laser, people that the FDA would be talking about to see if there's safety issues, you're talking about these microscopic amounts, and so [00:25:01] Speaker 03: There's no thermal damage. [00:25:02] Speaker 03: But if you're talking about, in this very technical field, the no more than five microns, there's no evidence of that. [00:25:09] Speaker 03: And they don't know. [00:25:11] Speaker 03: And this, again, is Neve's burden to prove infringement, to offer evidence from which a reasonable jury could find infringement. [00:25:18] Speaker 03: And he did not do that here in this case. [00:25:24] Speaker 03: Unless your honors have any further questions, we would ask this court to affirm. [00:25:45] Speaker 00: So just quickly, in the 199 patent, places where we don't have an agent or a substance says at column 4256 through 65, it's an appendix 171, and I apologize that actually in our briefs it says appendix 172, but it's actually 171. [00:26:11] Speaker 00: And it says distinct fourth exemplary method agnostic to how the, so I'm saying this is a distinct exemplary method that's agnostic of how the material characteristics are modified. [00:26:24] Speaker 00: So actually, I apologize, this is appendix 160, column 20, 42 through 54. [00:26:30] Speaker 00: It talks about utilizing preferential time dependent and or space dependent marking of the target region. [00:26:37] Speaker 00: And this refers to temporally or spatially modifying the target material [00:26:42] Speaker 00: characteristics without any reference to an agent. [00:26:45] Speaker 00: And then at appendix, what I mentioned before, appendix 171, [00:26:49] Speaker 00: which is column 4256 through 65. [00:26:52] Speaker 00: It discusses selective locations within the target material surface may possess properties that enhance their scattering and or absorption. [00:27:02] Speaker 00: Such selective location may occur naturally or may be inserted or induced artificially by the operator. [00:27:10] Speaker 00: Additionally, we have other references, for example, appendix 154, which is column. [00:27:16] Speaker 02: You were at 8171, column 42. [00:27:19] Speaker 02: Which lines were you at? [00:27:21] Speaker 00: 56 through 65. [00:27:22] Speaker 02: 56 through 65. [00:27:27] Speaker 02: With column 42? [00:27:32] Speaker 00: Yeah, I believe that's correct. [00:27:35] Speaker 00: Let me see. [00:27:38] Speaker 02: I mean, line 55 talks about [00:27:41] Speaker 02: how figure 6b illustrates the deposition of absorbing agents of various shapes, which finish more time and space-dependent selective interactions within the three-dimensional material volume, and so at least that passage is contemplating depositing absorbing agents. [00:28:01] Speaker 00: Except, however, all those references at, if you look at Figure 6, 306, 310, and 312 are all below the surface. [00:28:10] Speaker 00: And so it talks about adding, it may be naturally done or inserted or induced artificially. [00:28:21] Speaker 00: So it's contemplating inducing changes in the target tissue below the surface. [00:28:27] Speaker 00: I mean, the only, I mean, [00:28:28] Speaker 00: The only way you could insert a substance would be through a needle or something. [00:28:35] Speaker 00: If you continue on to other references, it talks about doping agents are added to the material. [00:28:41] Speaker 00: Before it says optionally. [00:28:43] Speaker 00: Optionally doping agents are added to the material. [00:28:46] Speaker 00: That's at appendix 154, column 7, 34-38. [00:28:52] Speaker 00: And then another reference says the option to spatially and or temporally control the addition of doping agents, appendix 155, 156. [00:29:01] Speaker 00: This is column 10, 63 through 11, line 7. [00:29:08] Speaker 00: And then there's another reference. [00:29:10] Speaker 00: It says even, this is appendix 171, column 42, 3 through 5. [00:29:16] Speaker 00: Even often small residual modifications to the surface follow the interaction with the laser source. [00:29:23] Speaker 00: Act as a subsequent absorbing agent and perpetrate the process at any desired pulse repetition. [00:29:30] Speaker 00: So here we have a defect that acts as an absorbing agent and there was nothing added, no substance as required by the court's construction. [00:29:43] Speaker 00: So I think – oh, I still have a little bit more time. [00:29:59] Speaker 00: I thought it was – oh, no. [00:30:02] Speaker 00: Okay. [00:30:03] Speaker 00: Judge Newman was asking about on the substance that adding the drops from our perspective when you add drops you change the density and the same thing happens when you add compression the patent is about changing the density of the material and The timing didn't allow an opportunity to amend Council on the other side had tried to do that with the related case and wasn't allowed and [00:30:26] Speaker 00: The depositions, however, disclosed everything, and so did the reports. [00:30:31] Speaker 00: There was plenty of opportunity to take a look at this, to ask about it, and to discuss it. [00:30:37] Speaker 00: But the timetable was pretty compressed, and we'd even asked at one point for a stay because of the patent re-exam that was going on in the 926, and that was denied as well. [00:30:52] Speaker 00: That covers oh just generally with the final point with the [00:30:58] Speaker 00: with the limitation on the 199 is once, as you have in Phillips, once you begin to include elements not mentioned in the claim, in order to limit such claim, we never know where to stop. [00:31:14] Speaker 00: And here, there's no mention in claim one, and there's no basis of importing that claim, the limitation of applying a preparation. [00:31:21] Speaker 00: It's completely created. [00:31:23] Speaker 00: It's not in the language of claim one. [00:31:25] Speaker 00: And a limitation, the district court then interpreted a summary judgment to require the application of a substance. [00:31:31] Speaker 00: So it's these two points, steps that were taken that required it. [00:31:35] Speaker 00: So from my perspective, the original construction, if you didn't view agent as a substance, would have been fine. [00:31:42] Speaker 00: But when the court reviewed, interpreted that to mean a substance that had to be applied, then that's where the real problems began. [00:31:50] Speaker 00: Thank you. [00:31:52] Speaker 01: Thank you so much for your time.