[00:01:05] Speaker 01:
Okay, the next argued case is number 182363, NeuroGraphics Against Brain Lab.

[00:01:13] Speaker 01:
Mr. Phillips.

[00:01:20] Speaker 02:
Good morning, Your Honor.

[00:01:22] Speaker 02:
I'm pleased to be here and honored and close with my good friend, Jay Campbell.

[00:01:27] Speaker 03:
I've watched him many times over the years, including wrote up a section of my book I wrote about patents some time ago about his arguments and attorney's fees and Medtronics versus BrainLab and the opposite, Serif versus BrainLab.

[00:01:39] Speaker 03:
So what I want to do is to make three points here.

[00:01:44] Speaker 03:
Firstly, I'd like to show that absolutely,

[00:01:48] Speaker 03:
this patent was infringed by BrainLab and induced.

[00:01:52] Speaker 03:
Direct infringement by at Memorial Sloan Kettering and inducement to that.

[00:02:00] Speaker 03:
I'd like to show that the way that the court disposed of the motion of summary judgment by finding that the patent did not apply to unknown tracts is a complete misunderstanding of the patent.

[00:02:17] Speaker 03:
And because of this,

[00:02:18] Speaker 03:
There is no non-infringing, substantial non-infringing use.

[00:02:24] Speaker 04:
Can I just hope that you will focus on what's in my mind, tell you a little bit about what's in my mind, and maybe it will fit with what you're trying to say or not.

[00:02:35] Speaker 04:
I was focused on kind of two arguments that I take you to be making.

[00:02:41] Speaker 04:
One of them is the claim construction argument about selected structure, and that all that means is that it is a brain structure that the user of this method chooses to subject to the process of scanning, et cetera.

[00:03:02] Speaker 04:
and that it plainly does not require that one knows either the specific location or the orientation of the selected structure.

[00:03:13] Speaker 04:
It just means identifying the structure that you are subjecting this diffusion tensor imaging process to.

[00:03:22] Speaker 04:
Because after all, the whole point of this process is to produce an accurate map of the orientation and location.

[00:03:30] Speaker 04:
You don't have to know it in advance.

[00:03:32] Speaker 04:
And that the district court was simply wrong about the claim construction to the extent it went beyond that.

[00:03:40] Speaker 04:
And the second is a procedural point, which is that you could not be faulted for not putting on, in response to the summary judgment motion,

[00:03:51] Speaker 04:
a whole lot of evidence about what users of the, what's the software that you call?

[00:03:57] Speaker 04:
Fiber tracking.

[00:04:01] Speaker 04:
Because that was not actually the argument that they made a summary judgment motion on.

[00:04:07] Speaker 04:
They never said if all you need is identifying the structure that you are going to subject, you know, put through this process, that nobody does that.

[00:04:20] Speaker 04:
And therefore, it completely doesn't matter whether you didn't submit a whole lot of evidence.

[00:04:27] Speaker 03:
Yes, those are two arguments at the core of what I have to say.

[00:04:31] Speaker 03:
So to fill that in, this court in Intelligent Biosystems v. Illumina, 2016, and before that, in Abbott Laboratories v. Sandoz, 2009, addressed this conundrum that, well, we certainly couldn't have claimed something unknown

[00:04:47] Speaker 03:
in the claims would then make it a claim indefinite.

[00:04:49] Speaker 03:
But what's happening in Abbott is you have a product by process, and the product's unknown, but you say, well, OK, we have a process.

[00:04:56] Speaker 03:
And if you look at this intelligent biosystem, it's very similar.

[00:05:01] Speaker 03:
We're sequencing DNA.

[00:05:02] Speaker 03:
The DNA sequence is unknown.

[00:05:04] Speaker 03:
It's not that we don't know that it's DNA.

[00:05:09] Speaker 03:
So yes, the court finds that since there are some areas that are unknown,

[00:05:16] Speaker 03:
that must be a substantial non-infringed acute.

[00:05:18] Speaker 03:
So this is completely wrong, because the whole purpose of the patent, as you just stated, is to map, find the direction of unknown tissues.

[00:05:25] Speaker 03:
In fact, claim 36.

[00:05:27] Speaker 03:
That's what it says in the preamble, in fact.

[00:05:29] Speaker 04:
This is a process for the purpose of determining the shape and position of a structure.

[00:05:35] Speaker 04:
It would be very odd to interpret claim language in here that says you have to know that in advance before you run the process.

[00:05:42] Speaker 03:
Absolutely, because the, and in fact, even

[00:05:46] Speaker 03:
CLAIM-36 is generally, we have a picture of celery it's used on.

[00:05:51] Speaker 03:
CLAIM-37 attaches to mammals and neural tissues.

[00:05:54] Speaker 03:
But 36 is very broad, because this is the solution, is that we had a way with MRI when the direction was known, so there's a peripheral nerve in the arm, because we could see the direction of diffusion, which is anisotropic, primarily down a nerve, and not isotropic diffusion in all directions.

[00:06:14] Speaker 03:
So the consequence of that is if you

[00:06:16] Speaker 03:
have an anisotropic flow in a nerve.

[00:06:19] Speaker 03:
If you turn the gradient, so first it's parallel and then it's perpendicular, in one image the nerve will be bright, the other will be dark.

[00:06:27] Speaker 03:
But if you have isotropic or uniformly diffusing water, then it's the same image intensity no matter how you point the gradient.

[00:06:34] Speaker 03:
when we have complex curving nerve structures, how do we know which way to point our gradient?

[00:06:39] Speaker 03:
And my solution was, the solution in this invention, is take the image from multiple directions and carry out mathematics, that's the tensor bit, to determine the vector orientation on a voxel by voxel basis.

[00:06:52] Speaker 03:
So it's a single voxel, which is the unit at which we measure the direction to a calculation.

[00:06:58] Speaker 03:
You fill each little voxel with a vector, and that is discovering

[00:07:02] Speaker 03:
the direction of the tissue or structure.

[00:07:05] Speaker 03:
And after claim 37, neural tissue in a mammal.

[00:07:08] Speaker 03:
And then we go on in the subsequent claims, 39, to it over multiple sections and run an arrow between them, follow onto the next.

[00:07:15] Speaker 03:
We have these tracts.

[00:07:17] Speaker 03:
And the appendix 06050, figure 9, there

[00:07:30] Speaker 03:
They tell us, Morison Kettering, you're using brain lab fiber tracking.

[00:07:36] Speaker 03:
It's a great, great image because it sweeps across all of neuroscience and right into this patent.

[00:07:40] Speaker 03:
Because they tell us that they have used functional MRI, fMRI, a different method.

[00:07:46] Speaker 04:
And these are materials that were in fact attached to your opposition to summary judgment or no?

[00:07:52] Speaker 04:
You have a real problem if you are relying on the proposition.

[00:07:56] Speaker 04:
as much of your brief does, but not all of it, that the district court, the MDL district court, erred in declining to consider a lot of articles, a lot of evidence that you attached to your proposed amended complaint, but did not cite in the summary judgment.

[00:08:16] Speaker 03:
That's a tough thing to fight.

[00:08:18] Speaker 03:
But I think that in order for the court to think about reaching across that and listening to argument, you have to know that if you did reach across it, there is solid evidence of direct resistance.

[00:08:28] Speaker 03:
Let's assume that.

[00:08:28] Speaker 04:
But you've got to make legal arguments about why Judge Stearns was wrong and what he did.

[00:08:34] Speaker 04:
And one is he agreed with you on two and a half of the claim constructions.

[00:08:41] Speaker 04:
You don't have to have zero anisotropic.

[00:08:43] Speaker 04:
It doesn't have to be zero anisotropic.

[00:08:46] Speaker 04:
The second one about only peripheral nerves were covered.

[00:08:50] Speaker 04:
He agreed with you about that.

[00:08:52] Speaker 04:
And then what it then came down to was some notion of what exactly a selected structure is.

[00:08:59] Speaker 04:
And it seems to me the opinion is not all that clear about that.

[00:09:03] Speaker 04:
But the argument that they made on that point was that you actually needed to know in one of their declarations the location and in the other was I think the orient.

[00:09:13] Speaker 04:
There were three declarations

[00:09:15] Speaker 04:
I forget what the names, what Mosley sang and somebody else.

[00:09:20] Speaker 04:
Um, and they all talked about assuming that you knew the location, the position, um, and or orientation.

[00:09:28] Speaker 04:
And if you're fighting the claim construction saying, no, no, you don't need to know that.

[00:09:31] Speaker 04:
That's a legal argument that's available to you at which.

[00:09:35] Speaker 03:
Yeah.

[00:09:35] Speaker 03:
And that is very key because in the, in the patent, um, this is at, uh,

[00:09:40] Speaker 03:
There's a series of paragraphs to discuss.

[00:09:43] Speaker 03:
We're measuring unknown orientation.

[00:09:45] Speaker 03:
The word unknown again and again.

[00:09:47] Speaker 03:
We're measuring unknown orientations.

[00:09:52] Speaker 04:
But the spec repeatedly says this is a lot easier if you actually know the orientation because then you know what's perpendicular, what's orthogonal, et cetera.

[00:09:59] Speaker 04:
But if you don't know it, pick a random one and start and you'll find it.

[00:10:05] Speaker 03:
Exactly, so it's completely wrong.

[00:10:07] Speaker 03:
He's just erred completely because he goes through it all, and then Stearns comes through and says, ah, but there must be something unknown here.

[00:10:16] Speaker 03:
And this is very much like saying, well, we don't know the exact margins of someone's femur, but therefore we can't measure it because it's unknown.

[00:10:24] Speaker 03:
No, we know exactly where the femur is.

[00:10:26] Speaker 03:
We know exactly how to take a picture of it.

[00:10:27] Speaker 03:
We just don't know the exact shape.

[00:10:28] Speaker 03:
And this is what this does is it solves exact shape.

[00:10:31] Speaker 03:
It's like sequencing DNA.

[00:10:32] Speaker 03:
It's finding the orientation of tissue.

[00:10:35] Speaker 03:
Because the court finds that there is a substantial non-infringing use incorrectly, they say, well, since there's something unknown, and they look at unknown, you look at known.

[00:10:47] Speaker 03:
Therefore, there's a substantial non-infringing use.

[00:10:51] Speaker 03:
You look to Toshiba case, which says that, well, if there is a substantial non-infringing use.

[00:10:58] Speaker 03:
And that was one where they were making

[00:11:01] Speaker 04:
I'm sorry, why are we talking about substantial non-infringing use?

[00:11:04] Speaker 04:
There was an inducement claim and a direct infringement claim.

[00:11:08] Speaker 04:
There was no contributory infringement claim for which substantial non-infringing use is relevant.

[00:11:12] Speaker 03:
Well, it's because he uses that argument to say that you need to pull direct evidence into the opposition.

[00:11:25] Speaker 04:
Right, but I thought you're, I guess, you say a bunch of different things in your brief in response to that.

[00:11:32] Speaker 04:
The one that I guess I'm focusing on, which doesn't depend on that, right, that doesn't depend, is simply when you look at the arguments that the other side made in its summary judgment argument, you had no argument to answer that

[00:11:52] Speaker 04:
required you to show the downstream users, the technicians or the neurosurgeons or the interventional radiologists or whoever had to be actually doing this.

[00:12:07] Speaker 04:
Their argument was it is impossible to use the brain tracking.

[00:12:13] Speaker 04:
brain tracking, fiber tracking, the fiber tracking software to do this, not that you don't have evidence that anybody does.

[00:12:20] Speaker 04:
Exactly.

[00:12:20] Speaker 04:
So you didn't have to answer that because there wasn't a that to answer.

[00:12:24] Speaker 03:
Yeah, because he would have had to attack the evidence that we had to require us.

[00:12:30] Speaker 03:
That's why I argue it's a deficient, most disturbing judgment, because he doesn't attack the substantive evidence.

[00:12:36] Speaker 03:
He tries to do the attack by knocking the whole thing out by saying, it's impossible to infringe because we only select

[00:12:43] Speaker 03:
unknown tissue, and the patent calls for known tissue.

[00:12:46] Speaker 03:
And if you accept that the court got this completely wrong, because this is about identifying unknown tissue, then we are only obligated to answer the issues raised in the emotional summary judgment by the movement.

[00:13:04] Speaker 03:
And we did that.

[00:13:08] Speaker 04:
You know, there's kind of a finding the signal in the noise here problem in the briefing that's presented some challenges.

[00:13:16] Speaker 03:
I appreciate that.

[00:13:19] Speaker 03:
But that's certainly the key piece of it is, because then I would then go on to say an argument that if the court found, no, there is a, either because the court's right on that or because there is a substantial honor for misuse that we were required

[00:13:34] Speaker 03:
He argues that therefore we were required to bring in these specific events, specific bits of evidence, even though the move in hadn't raised them.

[00:13:46] Speaker 03:
And that's where we objected in the motion's reconsideration.

[00:13:48] Speaker 03:
This was like a sua sponte.

[00:13:50] Speaker 03:
after the fact decision, he's telling us only at the time of issuing order that we're going to have to respond to something that the moving party hasn't asserted.

[00:14:00] Speaker 04:
Do you happen to remember, does the joint appendix contain the actual motion for reconsideration?

[00:14:06] Speaker 04:
If you don't remember, don't.

[00:14:08] Speaker 03:
Yes, it does.

[00:14:11] Speaker 03:
OK, I'll look at it.

[00:14:14] Speaker 04:
I see it.

[00:14:15] Speaker 03:
Thanks.

[00:14:21] Speaker 03:
And I appreciate that you've saved a lot of time focusing on these key issues.

[00:14:26] Speaker 03:
But I identified where to look in the patent for this fact that we're addressing unknown orientations.

[00:14:34] Speaker 03:
That's why you have to take the multiple directions to do the calculation, is to find the directions, which is just like sequencing a DNA.

[00:14:43] Speaker 03:
Find what the actual sequence is.

[00:14:45] Speaker 03:
Find what the actual orientations are.

[00:14:46] Speaker 03:
Because once we figure out the orientations of each little voxel in the brain, we can then march from point to point

[00:14:51] Speaker 03:
and map out these connections, transform neuroscience, and save thousands of lives, which is what this has done.

[00:14:59] Speaker 03:
So I'll hold over, if I may, additional time to my rebuttal and allow BrainLab to proceed.

[00:15:12] Speaker 01:
Good.

[00:15:12] Speaker 01:
Yes.

[00:15:13] Speaker 01:
Thank you, Mr. Phil.

[00:15:21] Speaker 01:
Mr. Campbell?

[00:15:23] Speaker 00:
May it please the Court, Your Honor.

[00:15:26] Speaker 00:
I want to address a couple questions from Judge Tronto first.

[00:15:30] Speaker 00:
He asked about claim construction and the Court's claim construction.

[00:15:33] Speaker 00:
The Court adopted completely

[00:15:36] Speaker 00:
Neurographics claim construction there was an issue as to what selected structure meant But it wasn't really a claim construction issue on selected structure.

[00:15:44] Speaker 00:
It was whether according to Neurographics you could interpret the word roi region of interest or region to be the same thing as a selected structure the specification does talk about selecting a structure there are many indications as to how you can select the structure those structures can be known advanced peripheral nerves are known advanced and

[00:16:04] Speaker 00:
The optic nerve position is known in advance.

[00:16:07] Speaker 00:
Other peripheral nerves around the brain are known in advance.

[00:16:11] Speaker 00:
They selected that language to use.

[00:16:14] Speaker 00:
The specification may be broader and may talk about choosing regions, but that's not what they claimed.

[00:16:19] Speaker 04:
But put aside that.

[00:16:21] Speaker 04:
So a selected structure is just a brain structure that somebody choosing to implement this method chooses to subject to the method.

[00:16:32] Speaker 00:
An anisotropic structure first.

[00:16:34] Speaker 00:
Yeah.

[00:16:34] Speaker 00:
Yeah.

[00:16:34] Speaker 00:
The other, right.

[00:16:36] Speaker 04:
But you lost on, on, on peripheral, right.

[00:16:39] Speaker 04:
You lost on peripheral.

[00:16:40] Speaker 04:
You've lost on zero anisotropic.

[00:16:44] Speaker 04:
Um, right.

[00:16:45] Speaker 04:
So, and, and then you said, um, our software cannot do what this says because it actually maps everything and not just one thing.

[00:16:57] Speaker 04:
And the claim is not a,

[00:17:00] Speaker 04:
They pick out one and do only one.

[00:17:02] Speaker 04:
As long as you've got one, you can be mapping everything under the sun as long as you've got one.

[00:17:06] Speaker 00:
Well, that's not true.

[00:17:08] Speaker 00:
And in our motion for summary judgment, specifically Appendix 7322,

[00:17:15] Speaker 00:
And on, we talk about the fact that none of our customers use it the way they claim.

[00:17:21] Speaker 00:
None of our customers use it to select a structure, whether it be in advance, no matter what kind of structure it is, whether it be a peripheral nerve or a nerve in the brain or a white matter that you don't see in advance.

[00:17:33] Speaker 00:
Because the way Brain Lab uses it is we've got a neurosurgeon, and he wants to perform some kind of surgery around gray matter.

[00:17:42] Speaker 00:
typically matter that doesn't have anisotropy.

[00:17:47] Speaker 00:
And he wants to see, or she, if there is a fiber, a white matter fiber, near that.

[00:17:54] Speaker 00:
So he doesn't know, or she doesn't know in advance, the whole purpose of doing fiber tracking is brain landmark.

[00:18:01] Speaker 04:
Everybody knows that there's this pyramidal structure in the brain, right?

[00:18:06] Speaker 04:
What more do you need?

[00:18:07] Speaker 04:
Say, I want to do this to find the damn thing.

[00:18:10] Speaker 00:
Well, if you wanted to define the pyramidal structure, you could.

[00:18:15] Speaker 04:
Or maybe you want to find something else.

[00:18:16] Speaker 04:
You want to find it.

[00:18:17] Speaker 00:
Right.

[00:18:17] Speaker 00:
You may want to find something else.

[00:18:18] Speaker 00:
But the key to BrainLab's use of it is we don't select anything in advance.

[00:18:23] Speaker 00:
We just run it.

[00:18:25] Speaker 00:
And in fact, as NeuroGraphics argues in section three of the brief, BrainLab runs fiber tracking in advance of anything before a user selects any structure, whether or any region of interest.

[00:18:39] Speaker 00:
It's only after the region of interest that you see these fibers.

[00:18:43] Speaker 04:
And as we showed... The neurologist or the neurosurgeon says, I'm about to do some surgery in the following area of the brain.

[00:18:56] Speaker 04:
I really want a precise map of a bunch of things that I would like to stay away from.

[00:19:02] Speaker 04:
Why isn't that selecting a structure?

[00:19:05] Speaker 04:
And so we're going to use fiber tracking tomorrow.

[00:19:08] Speaker 00:
I'm going to use fiber tracking and I'm going to use fiber tracking to select a region around- No, no, no, no.

[00:19:14] Speaker 04:
You're not using it to select it.

[00:19:15] Speaker 04:
You selected it.

[00:19:16] Speaker 04:
I want to know where the pyramidal track is, tracked is.

[00:19:22] Speaker 04:
And so now I'm going to run fiber tracking.

[00:19:24] Speaker 04:
Selected is just, this is one of the things I am looking for when I do this process.

[00:19:30] Speaker 00:
That's not as the parties interpreted it.

[00:19:32] Speaker 00:
The parties interpreted it looking for a structure that you know is there.

[00:19:37] Speaker 00:
Looking for a nerve that maybe... Why is that different from what I'm at least... Because we're looking for some known structure.

[00:19:45] Speaker 04:
You know that there's a pyramidal track in there.

[00:19:47] Speaker 04:
You know that there's a pyramidal, but... Pyramidal, is that how you say it?

[00:19:50] Speaker 04:
Sorry about that.

[00:19:50] Speaker 00:
I'm sorry?

[00:19:51] Speaker 04:
Pyramidal, I'm sorry.

[00:19:52] Speaker 04:
I'm not familiar with the... Dr. Filler... Okay, we'll say pyramidal.

[00:19:57] Speaker 00:
Good.

[00:19:57] Speaker 00:
I corrected me several times, and now I think I say it at least the way he says it.

[00:20:00] Speaker 00:
But you're getting back to the point.

[00:20:04] Speaker 00:
Never did

[00:20:05] Speaker 00:
NeuroGraphics introduced any evidence that BrainLab's customers use it to find the pyramidal structure.

[00:20:12] Speaker 00:
It didn't introduce any evidence that they use it in any fashion.

[00:20:16] Speaker 00:
There was no evidence that BrainLab customers even use it.

[00:20:19] Speaker 04:
Your advertisements and manual were in their opposition to summary judgment.

[00:20:22] Speaker 00:
That you could use it to find the pyramidal structure.

[00:20:26] Speaker 04:
And really, it's a contestable proposition that

[00:20:30] Speaker 04:
people were using this without having in their mind any idea of a structure that they were hoping to map?

[00:20:39] Speaker 04:
Really?

[00:20:39] Speaker 00:
Yes.

[00:20:40] Speaker 00:
Yes.

[00:20:41] Speaker 00:
We had testimony from... But how can that be?

[00:20:44] Speaker 01:
We have testimony.

[00:20:45] Speaker 01:
These are very serious procedures.

[00:20:48] Speaker 01:
It certainly has to be the supposition for the entire structure.

[00:20:55] Speaker 01:
is that these are administered by experts.

[00:20:58] Speaker 01:
Claims are very broad.

[00:21:00] Speaker 01:
Claims don't include the limitations you're telling us about.

[00:21:05] Speaker 01:
Well, the claim doesn't require you to select.

[00:21:08] Speaker 01:
It says we're looking for the shape and position of structure.

[00:21:15] Speaker 01:
And of course, there are the suspicions, based on all of the peripheral evidence, that there may very well be structure in the brain.

[00:21:25] Speaker 00:
We are looking for the position of a selected anisotropic structure, a selected nerve.

[00:21:32] Speaker 01:
It's not in the claim.

[00:21:33] Speaker 00:
I'm sorry?

[00:21:34] Speaker 01:
It's not in the claim.

[00:21:35] Speaker 00:
Yes, it is.

[00:21:38] Speaker 00:
The selected structure isn't any structure.

[00:21:41] Speaker 00:
It's a selected structure that exhibits diffusional anisotropy.

[00:21:45] Speaker 00:
In other words, it's a white matter structure.

[00:21:47] Speaker 01:
Now, much of this white... The diffusion gradients?

[00:21:51] Speaker 01:
Where... I'm trying to put it together.

[00:21:54] Speaker 01:
The claims are quite broad.

[00:21:59] Speaker 00:
In some fashions, in some fashion it is, but it's not.

[00:22:04] Speaker 00:
Because it does say selected structure, and it says that throughout.

[00:22:08] Speaker 00:
As neurographics would do, they just eliminate that completely.

[00:22:11] Speaker 00:
They say you can select any area of the brain, in any areas of structure.

[00:22:15] Speaker 00:
But that's not true.

[00:22:16] Speaker 00:
You have to have a selected anisotropic structure, which basically is a white matter.

[00:22:22] Speaker 04:
Did you say in your summary judgment motion, and if so where, no user

[00:22:29] Speaker 04:
There is no evidence that any user of fiber tracking undertakes to use fiber tracking with the idea in mind of trying to map an isotropic structure.

[00:22:46] Speaker 00:
No, we say that we don't do it trying to find any known isotropic structure.

[00:22:52] Speaker 00:
And that was the testimony of the experts and the users.

[00:22:55] Speaker 04:
But I'm sorry, but known, and it seemed to me

[00:22:59] Speaker 04:
that are most interest, you had Sone, Leach and Mosley, right?

[00:23:04] Speaker 04:
And Mosley expressly has a paragraph that says, I interpret the claim language of selected to require, I forget whether his is orientation or location.

[00:23:14] Speaker 04:
There's orientation, location and position between Sone, Leach and, and they all assume something that the term selected structure does not properly construed assume.

[00:23:25] Speaker 00:
Well, no, they all assume that that means you're selecting something and you're going to try then to track it.

[00:23:32] Speaker 04:
But Mosley, for example, does not say no user of this system has in mind a structure that any neurologist would know is anisotropic and is using this software to get a precise map of it.

[00:23:50] Speaker 04:
On its face, it sounds preposterous to me.

[00:23:52] Speaker 04:
I'm not an expert, but what else are they using this for?

[00:23:56] Speaker 00:
They use it to see if there is a structure.

[00:23:59] Speaker 00:
It doesn't have to be a perimeter structure.

[00:24:01] Speaker 00:
It can be any structure, any white matter, anisotropic structure that is passing through.

[00:24:06] Speaker 04:
And that there's no user of the fiber tracking system that has in mind such a structure that they're looking to map precisely.

[00:24:16] Speaker 00:
In advance?

[00:24:17] Speaker 04:
In advance.

[00:24:19] Speaker 00:
There's no testimony from anybody, no evidence from anybody.

[00:24:22] Speaker 04:
Where did you say in the summary judgment motion that if you assume that selected structure simply means a structure that a user wants to subject to this process and get a precise map of, that there is no evidence that any user of the system does that?

[00:24:40] Speaker 00:
Yes, in 7322 and a couple of pages that follow, they incorporate statements from Dr. Leach and Dr. Sung, both of which say they do not look to... Right, but all of those three statements, Leach, Sung, and Mosley, they all come in that very paragraph at the bottom of 22 and 23, all build in the assumption that you already know the location.

[00:25:09] Speaker 00:
They are building on the assumption that the way they use BrainLabs system is you don't look for anything in specific.

[00:25:18] Speaker 00:
You're not looking for, for example, a pyramidal structure.

[00:25:21] Speaker 00:
You're not looking for any known structure, any pre-selected structure.

[00:25:26] Speaker 00:
You just want to find out what is around that tumor.

[00:25:30] Speaker 00:
That's what they're concerned about.

[00:25:31] Speaker 00:
because there may be fibers that go from that tumor to another part in the brain, and they don't want to intersect them.

[00:25:38] Speaker 01:
The standard diagnostic procedures that you're talking about, I can't find such a distinction being drawn as to whether you know or don't know in advance what you're going to find.

[00:25:52] Speaker 00:
Well, isn't that the whole use of the word selected?

[00:25:56] Speaker 00:
And in fact... But you just said,

[00:25:59] Speaker 04:
Right?

[00:26:00] Speaker 04:
You're scanning this area because there are structures you know you don't want to... I forget what your verb is.

[00:26:06] Speaker 00:
Well, you don't know.

[00:26:07] Speaker 00:
No, you don't know.

[00:26:08] Speaker 00:
You don't know what's there.

[00:26:09] Speaker 04:
That's why... That's the difference between... Really, the people who are running this don't know that there's a pyramidal structure in the brain?

[00:26:16] Speaker 00:
No, they know there's a pyramidal structure, but they don't know the pyramidal structures anywhere near the tumor.

[00:26:23] Speaker 00:
And in many cases, it's not.

[00:26:24] Speaker 00:
It's nowhere near it.

[00:26:26] Speaker 00:
They have a tumor

[00:26:27] Speaker 00:
And they want to know what's around it.

[00:26:30] Speaker 00:
And that's why they run it.

[00:26:32] Speaker 00:
They don't know there's a pyramidal structure right next to it, and they're trying to see how close.

[00:26:36] Speaker 00:
They don't know that there's any white matter structures, significant ones, next to it.

[00:26:41] Speaker 00:
All they do is, and this is what the experts said, there was no testimony from any expert whatsoever or any testimony that NeuroGraphics admitted saying as to how anybody uses this.

[00:26:55] Speaker 00:
The only testimony was from Leach and Sun.

[00:26:57] Speaker 04:
No testimony.

[00:26:57] Speaker 04:
I'm sorry.

[00:26:58] Speaker 04:
No testimony.

[00:26:59] Speaker 04:
But there were, what, two pages from advertisements, your advertisements.

[00:27:04] Speaker 00:
You could select a pyramidal.

[00:27:06] Speaker 00:
You could do that.

[00:27:07] Speaker 04:
No, no.

[00:27:07] Speaker 04:
I'd like to ask you to let me finish my question.

[00:27:09] Speaker 00:
I'm sorry.

[00:27:10] Speaker 00:
I apologize, Your Honor.

[00:27:11] Speaker 04:
There were, I think, two advertising pictures and one in the manual, which referred to a terrific benefit of this is you can identify the location of the pyramidal tract.

[00:27:23] Speaker 04:
Why is that not sufficient evidence that if you were advertising it and telling people you could use it that way, I bet there were doctors out there that were using it for that purpose, saying, I'd like to know where this tract is so that I don't do harm when I intervene.

[00:27:41] Speaker 00:
Well, there may be doctors who do that, but that's not sufficient to prove infringement.

[00:27:47] Speaker 00:
They have to do that.

[00:27:49] Speaker 00:
Now, it's just the claim wasn't as capable.

[00:27:51] Speaker 04:
I'm sorry, why is that not sufficient to prove

[00:27:53] Speaker 04:
And we're getting beyond what I think is probably- I think we're getting to inducement maybe?

[00:27:57] Speaker 04:
No, no.

[00:27:58] Speaker 04:
You said that the principal ground of the district court's decision, the inducement is just in a footnote, right?

[00:28:04] Speaker 04:
I mean, the principal ground of the district court's decision is there was no proof that anybody was directly infringing.

[00:28:11] Speaker 00:
True.

[00:28:12] Speaker 04:
Right.

[00:28:12] Speaker 00:
There is no proof that anybody was directly infringing.

[00:28:17] Speaker 00:
And that's where it ends.

[00:28:18] Speaker 00:
There was no proof.

[00:28:19] Speaker 00:
And in fact, NeuroGraphics admits that there was no proof.

[00:28:22] Speaker 00:
They admit that they introduced absolutely no proof and no argument of direct infringement.

[00:28:28] Speaker 00:
That should end it there.

[00:28:29] Speaker 00:
And in fact, there is no evidence.

[00:28:31] Speaker 00:
There are two advertisements which mention pyramidal structure, but it doesn't say that you have to do that.

[00:28:38] Speaker 00:
You could do fiber tracking to find any of the other structures that aren't the pyramidal structure.

[00:28:43] Speaker 00:
And in fact, the testimony of our experts is that's how they do it.

[00:28:47] Speaker 00:
They're not looking specifically for the pyramidal structure.

[00:28:50] Speaker 04:
But why if?

[00:28:54] Speaker 04:
Some of your summary judgment brief, and I guess some of your brief here, suggests that for there to be a selected structure, the result of the process has to be limited to mapping that one and not mapping anything else.

[00:29:09] Speaker 00:
Yes.

[00:29:10] Speaker 00:
We argue that as well.

[00:29:12] Speaker 04:
Because you're not... There's nothing in the claim about that, right?

[00:29:14] Speaker 04:
This is all... The fact that you select a structure doesn't mean that you're not interested in or even

[00:29:23] Speaker 04:
getting the information about everything else surrounding it.

[00:29:27] Speaker 04:
All this says is that you have to scan, I'm using scan as the right word, expose, yes, exposing a region that contains a selected structure.

[00:29:35] Speaker 04:
It doesn't say that you are exposing a region that contains, which supposed to be silly, but contains that structure and no other structure.

[00:29:44] Speaker 00:
Well, it doesn't say that structure and no other structure.

[00:29:46] Speaker 00:
I agree with you.

[00:29:47] Speaker 00:
It says a selected structure.

[00:29:49] Speaker 00:
So you're scanning.

[00:29:49] Speaker 01:
It says selected structure and other structure.

[00:29:52] Speaker 00:
Right, the region you scan is supposed to include the selected structures and other structures.

[00:30:00] Speaker 00:
But still it says, it doesn't say the region includes anisotropic structures and isotropic structures.

[00:30:09] Speaker 00:
It says a selected anisotropic structure.

[00:30:12] Speaker 01:
That's step A. It says selected that exhibits diffusion anisotropy and other structures that do not exhibit diffusion anisotropy.

[00:30:22] Speaker 00:
True.

[00:30:23] Speaker 00:
But it says a selected structure that does.

[00:30:26] Speaker 00:
So what does selected mean?

[00:30:28] Speaker 00:
Selected must mean that you're looking for something in specific.

[00:30:34] Speaker 00:
Right?

[00:30:34] Speaker 01:
So you run your first scan and you select the structure.

[00:30:38] Speaker 01:
And then you run another one for precision and so on.

[00:30:42] Speaker 01:
And there it is.

[00:30:45] Speaker 00:
You only run it once.

[00:30:48] Speaker 00:
You don't run it first to look for a structure and then run it again.

[00:30:52] Speaker 01:
That is the whole issue, that you run it.

[00:30:57] Speaker 01:
You don't run it just for fun, just to see what different colors are going to turn up in your brain scan.

[00:31:05] Speaker 01:
You have significant information to start with before you do all of this, I would think or hope.

[00:31:15] Speaker 00:
Well, no, and that's the key between, I think, the patent and what BrainLab does.

[00:31:20] Speaker 00:
BrainLab doesn't care what's there in advance.

[00:31:23] Speaker 01:
They're not looking for something.

[00:31:28] Speaker 01:
would not meet any kind of definition of diagnostic procedure because you're looking for something whose presence you then verify when you conduct the procedure.

[00:31:40] Speaker 01:
And why doesn't that apply to the way this brain, this claim is written as a selected structure?

[00:31:47] Speaker 00:
Well, because it requires, I guess, selected structure.

[00:31:50] Speaker 00:
It doesn't say any structure that exhibits diffusional anisotropy and

[00:31:57] Speaker 00:
isotropic structures.

[00:31:58] Speaker 00:
It says a selected structure.

[00:32:01] Speaker 00:
So you have to have some structure that you know something of in advance.

[00:32:05] Speaker 00:
You believe it's there, maybe the pyramidal track.

[00:32:07] Speaker 00:
You believe that there's a structure here and that's what you're selecting and that's what you're looking for in advance.

[00:32:12] Speaker 00:
When BrainLab uses its device, it just draws a region of interest around a tumor.

[00:32:19] Speaker 01:
Was the summary judgment based on that or was it based on absence of evidence?

[00:32:24] Speaker 01:
of actual, as opposed to contributory infringement.

[00:32:30] Speaker 00:
Well, it was based on the fact that plaintiffs produced no evidence of anybody using fiber tracking in any manner, in any manner whatsoever, and especially not in the manner which they argue their hypothetical use, which is essentially to always find the pyramidal structure.

[00:32:50] Speaker 01:
So you're brochure with instructions.

[00:32:54] Speaker 01:
You're saying that the instructions in the brochure as to what this system can do are insufficient.

[00:33:04] Speaker 00:
Yes.

[00:33:05] Speaker 00:
It doesn't say you must select a pyramidal structure.

[00:33:08] Speaker 00:
It doesn't say you must select anything.

[00:33:11] Speaker 00:
In fact, the manual for fabric tracking doesn't use the word pyramidal.

[00:33:15] Speaker 00:
It doesn't say you have to use it in a certain way.

[00:33:18] Speaker 00:
The patent doesn't even.

[00:33:19] Speaker 04:
The manual doesn't.

[00:33:19] Speaker 04:
That's just the advertisement.

[00:33:21] Speaker 04:
Is that right?

[00:33:21] Speaker 04:
I thought there was one reference in the manual.

[00:33:23] Speaker 04:
Am I misremembering that?

[00:33:25] Speaker 00:
The manual never talks about it.

[00:33:29] Speaker 01:
Mr. Filler is pointing out that we're running over time.

[00:33:33] Speaker 00:
I understand we've run over time.

[00:33:34] Speaker 00:
I'm just trying to finish the answers to the questions.

[00:33:38] Speaker 01:
Is there anything else you need to tell us?

[00:33:41] Speaker 00:
I think I just want to conclude by saying that never did NeuroGraphics introduce any evidence that anybody uses brain-lapse device in any way, in any fashion, whether it be some infringing method that finds a pyramidal structure or does anything else, all the non-infringing methods.

[00:34:01] Speaker 00:
And the court found they were both infringing, possibly, methods and non-infringing methods.

[00:34:06] Speaker 00:
And mentioned just briefly, Suis Ponte never did.

[00:34:11] Speaker 00:
NeuroGraphics, Archie Susponte, and any of the briefs, and it was not in the motion for reconsideration.

[00:34:17] Speaker 00:
So we believe the judge's opinion blow should be affirmed.

[00:34:20] Speaker 00:
Thank you very much.

[00:34:22] Speaker 01:
Thank you, Mr. Campbell.

[00:34:24] Speaker 00:
And Your Honor, I appreciate if I talked over you a couple of times.

[00:34:27] Speaker 00:
I was just getting excited.

[00:34:29] Speaker 01:
Will you add to Mr. Filler's time the amount we've run over with Mr. Campbell?

[00:34:38] Speaker 03:
Thanks very much.

[00:34:42] Speaker 03:
I did want to address this issue that you should know that in the event that you reverse and remand, that the record does contain exactly what Mr. Campbell says it does not.

[00:34:58] Speaker 03:
And that's why I was pointing to that particular page, beginning 06050.

[00:35:04] Speaker 03:
Because neurosurgeons know there's areas of the brain you could take out a large amount and have not much trouble for the patient, and other parts where you have a devastating injury from a tiny amount.

[00:35:12] Speaker 03:
And the pyramidal tract is one of these.

[00:35:14] Speaker 03:
And yes, pyramidal tract is named specifically in the manual.

[00:35:17] Speaker 03:
That is correct.

[00:35:18] Speaker 03:
So what happens in Figure 9 is they tell us that they use this fMRI to locate

[00:35:27] Speaker 03:
Broca's and Wernicke's area.

[00:35:28] Speaker 03:
What are these?

[00:35:29] Speaker 03:
These are, I talk about that there is, there are no unknown structures.

[00:35:33] Speaker 03:
It's the unknown detail.

[00:35:34] Speaker 03:
Broca's is speech generation discovered in 1861.

[00:35:38] Speaker 03:
People had a series of, he had a series of patients who lost speech and then he, they died and he sectioned the brain and found the injury.

[00:35:45] Speaker 03:
That was motor speech and Wernicke's around the same year, 1861, Wernicke in Germany found receptive speech area.

[00:35:53] Speaker 03:
If it was injured, people can no longer understand speech.

[00:35:56] Speaker 03:
Now, 10 years later, they found that connecting the two, motor speech and receptive speech, was a tract, which they called the arcuate fasciculus.

[00:36:04] Speaker 03:
And that's what this image is about.

[00:36:07] Speaker 03:
Because this patient has a tumor between the motor speech area and the receptive speech area, pushing the arcuate fasciculus out of place.

[00:36:15] Speaker 03:
And they want to know, can we get the tumor out without injuring the arcuate fasciculus?

[00:36:21] Speaker 03:
And they use BrainLab to find out exactly where

[00:36:25] Speaker 03:
the archaeophysicologist has been pushed to by the tumor and where the edges are.

[00:36:30] Speaker 03:
This is exactly, exactly laid out.

[00:36:32] Speaker 03:
They're doing something that appears in the patent, specifically talks about exactly this issue of the parts of the brain, the tracts that emerge from the speech areas.

[00:36:50] Speaker 03:
And the use of fMRI, which is for something called BOLD or bold imaging,

[00:36:55] Speaker 03:
to identify a functional area that also appears in the manual, which I'm sure Mr. Campbell will have to agree to.

[00:37:05] Speaker 03:
So on remand, yes, absolutely, evidence before the jury will include this user of BrainLab wanting to avoid injury to this tract exactly as you've just been disputing.

[00:37:20] Speaker 03:
They've set out to do this.

[00:37:21] Speaker 03:
They know the tumor is near the arc of the fasciculus.

[00:37:23] Speaker 03:
And if they hit the fasciculus, they're going to severely impair the patient's speech.

[00:37:27] Speaker 03:
They're going to know exactly where it is.

[00:37:29] Speaker 03:
They picked the two structures using brain lab that's totally capable of this with this intention.

[00:37:33] Speaker 03:
And in fact, the manual tells them to use bold imaging for this and for a pyramidal tract.

[00:37:40] Speaker 03:
And they advertise for it.

[00:37:40] Speaker 03:
And that's what neurosurgeons want.

[00:37:42] Speaker 03:
And so Mr. Campbell, what you may have noticed about all of his experts is they all say just about the same thing.

[00:37:47] Speaker 03:
And that didn't happen by chance.

[00:37:50] Speaker 03:
So I think that you're looking at a legal argument and not a true medical opinion.

[00:37:56] Speaker 03:
The other issue that he raises about selecting a structure is to suggest that somehow it means that you have to select the entire structure.

[00:38:09] Speaker 03:
But the method in the patent, the claim 36, is really at a single voxel.

[00:38:14] Speaker 03:
You just have to select a structure because that's the level at which it determines the orientation.

[00:38:18] Speaker 03:
It does it voxel by voxel.

[00:38:20] Speaker 03:
Um, so again, I won't use up all my time.

[00:38:23] Speaker 03:
Um, but, um, I believe that the, the judge, honorable Judge Stearns was wrong when he found there was a, um, substantial non-infringing use.

[00:38:38] Speaker 03:
He uses that, he points it to Tshiba to say, therefore, you did have to bring

[00:38:43] Speaker 03:
extra specific evidence in even though they didn't cite, even though they didn't attack the other evidence.

[00:38:50] Speaker 03:
We don't say there's no evidence infringement.

[00:38:52] Speaker 03:
We don't admit that.

[00:38:53] Speaker 03:
We just say, you always infringe.

[00:38:56] Speaker 03:
Whenever you do these things, you're infringing because there's no non-infringing use.

[00:39:00] Speaker 03:
That's our response.

[00:39:01] Speaker 03:
They're saying, we don't have to attack the evidence because we never infringe.

[00:39:06] Speaker 03:
We come back and say, you always infringe.

[00:39:08] Speaker 03:
The court decides it by saying, ah,

[00:39:11] Speaker 03:
There's unknown tissue, and I don't think the patent covers unknown tissue.

[00:39:16] Speaker 03:
100% wrong.

[00:39:17] Speaker 03:
That needs to change.

[00:39:19] Speaker 03:
It reverses the whole thing.

[00:39:21] Speaker 03:
It's deficient motion in that.

[00:39:24] Speaker 03:
It didn't cite individual infringement, but if we take it as a valid motion, it is sufficient.

[00:39:30] Speaker 03:
It argues one thing.

[00:39:31] Speaker 03:
You can't infringe.

[00:39:33] Speaker 03:
The answer is the judge got it wrong.

[00:39:35] Speaker 03:
They always infringe.

[00:39:36] Speaker 03:
And that's why the most repressive judgment must fail, because there is substantial evidence of infringement, which a jury could readily find.

[00:39:43] Speaker 03:
This is not a position of a judge to prevent this from getting in front of a jury.

[00:39:47] Speaker 03:
Thank you very much.

[00:39:49] Speaker 01:
Thank you.

[00:39:50] Speaker 01:
Thank you both.

[00:39:51] Speaker 01:
The case is taken under submission.

[00:39:53] Speaker 01:
That concludes our argued cases for this morning.

[00:40:02] Speaker 02:
The Honorable Court is adjourned until tomorrow morning.

[00:40:05] Speaker 02:
It's an o'clock a.m.