[00:00:04] Speaker 01: We have two argued cases this morning. [00:00:06] Speaker 01: The first is number 17-2423, Quest Integrity USA versus Koch Busters. [00:00:13] Speaker 01: Mr. Moore. [00:00:19] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:00:23] Speaker 01: The central issue in this appeal... I'm confused as to [00:00:27] Speaker 01: what the issue is. [00:00:28] Speaker 01: Maybe you can help me. [00:00:30] Speaker 01: I think both sides agree that the display limitation is the only issue, right? [00:00:37] Speaker 02: Your Honor, respectfully, the display limitation I would say is the central issue with respect to two of the claims, 30 and 40. [00:00:44] Speaker 01: Yes, I understand. [00:00:45] Speaker 01: With the exception of 30 and 40. [00:00:47] Speaker 01: That's correct. [00:00:48] Speaker 01: Put those aside. [00:00:50] Speaker 01: So what confuses me is what [00:00:55] Speaker 01: the display limitation covers. [00:00:57] Speaker 01: I guess there could be two things within the display limitation. [00:01:02] Speaker 01: One, being able to fix the location of the defect in relation to physical geometry of the tubing. [00:01:10] Speaker 01: And second, displaying that information in a way that it looks like the furnace coil. [00:01:19] Speaker 01: And we have this example one [00:01:23] Speaker 01: in the patent, which seems to not require the second of those. [00:01:30] Speaker 01: And you'd agree with that, right? [00:01:31] Speaker 02: It doesn't require the second of them, Your Honor. [00:01:34] Speaker 02: If I could be, try to help with the Court's viewpoint of it. [00:01:37] Speaker 02: And you can, of course, stop me when I run astray. [00:01:40] Speaker 02: I think you're right. [00:01:42] Speaker 02: The parties, my friends and us, referred to the display limitation as a shorthand of a display limitation. [00:01:48] Speaker 02: But in actuality, it requires two things. [00:01:51] Speaker 02: The data has to be arranged to represent the physical geometry of at least a plurality of the stacked tube segments in the furnace. [00:01:59] Speaker 02: So it has to be arranged that way. [00:02:01] Speaker 02: That was added during prosecution to overcome a prior art reference, which showed things like the attributes of the tubing in the sense of the wall thickness and the like. [00:02:11] Speaker 02: And they said, we're going to add a limitation beyond merely partitioning the data and require it to be arranged to represent the physical geometry [00:02:21] Speaker 02: of the furnace. [00:02:23] Speaker 00: Just to be clear, the term is that the data is or are arranged, which is a weird formulation. [00:02:30] Speaker 00: You mean that the visual representation of the data is arranged? [00:02:34] Speaker 02: That's how it's used throughout the specification of the file history as well, Your Honor. [00:02:39] Speaker 02: If you look at the specification, one of the strongest indications, and really while it's a claim construction issue, it comes down to [00:02:46] Speaker 02: relatively stark question. [00:02:48] Speaker 01: You're losing me again. [00:02:50] Speaker 01: You've got these two different requirements within the display limitation. [00:02:56] Speaker 01: One is it's arranged so that you can determine the location of the defect in relation to physical geometry. [00:03:03] Speaker 01: The other one is displaying it so it looks like the furnace coils. [00:03:08] Speaker 01: Do you agree that the NORCO [00:03:12] Speaker 01: charts would fit within claim one, within example one? [00:03:17] Speaker 02: Yes, I do actually, Your Honor. [00:03:19] Speaker 02: I agree the NORCO charts would fit within example one. [00:03:22] Speaker 02: I think what they'd be missing is that there is no displaying of the data so that it's arranged to represent the physical geometry of the stacked tube segments. [00:03:31] Speaker 02: And I think that flows from two things, Your Honor. [00:03:34] Speaker 02: The first is the specification at the bottom of column 11 discusses example one, which is the strip charts. [00:03:40] Speaker 02: And it says that's only an example. [00:03:42] Speaker 02: And then it says other ways you can do it would be to display the physical geometry. [00:03:46] Speaker 02: It draws a contrast between strip charts and displaying the physical geometry. [00:03:51] Speaker 01: So in the specification as originally written, in the patent as originally written before the prosecution, you would agree that NORCO is within example one. [00:04:03] Speaker 02: I would agree with that, Your Honor. [00:04:04] Speaker 01: I would acknowledge that. [00:04:06] Speaker 01: Then you have to rely on the prosecution history [00:04:09] Speaker 01: as a disclaimer of example one. [00:04:11] Speaker 02: No, I don't, your honor. [00:04:12] Speaker 02: With due respect, example one matches the strip charts. [00:04:16] Speaker 02: But at the end of example one, at column 11 around line 56, it says the strip charts, which is example one, it says is one way that you could utilize some aspect of the invention. [00:04:30] Speaker 02: And then it contrasts it to examples two through four, if you will, by saying another way you could do it is to show them in their proper orientation [00:04:39] Speaker 02: to show the physical geometry of the furnace. [00:04:41] Speaker 02: So I agree with you that example one is reflective of Norco, but these claims, you don't need to rely on the file history or any disclaimer or anything like that. [00:04:52] Speaker 02: The claim language, which says that it's arranged to represent the physical geometry, is quite different than the strip charts, which have no geometric component in the sense that they're time-based. [00:05:03] Speaker 01: So the claims, according to you, that you're relying on are excluding example one? [00:05:08] Speaker 02: Yes, absolutely, Your Honor. [00:05:09] Speaker 02: They excluded basically. [00:05:10] Speaker 01: Even before the prosecution history. [00:05:13] Speaker 02: Well, let me say it this way. [00:05:16] Speaker 02: They were amended during the prosecution history to add the requirement that they be arranged to represent the physical geometry. [00:05:23] Speaker 02: So as soon as that amendment came into place, it excluded the strip charts in example one. [00:05:29] Speaker 02: And holistically, if you look at the entirety of the intrinsic evidence, [00:05:32] Speaker 02: With due respect, I think there's no other conclusion you can reach. [00:05:36] Speaker 02: The first thing is, Your Honors, the claims before they were amended only required that you displayed partition data. [00:05:43] Speaker 02: And the data was partitioned, so you could show different tubes, for example. [00:05:46] Speaker 02: That would read on example one or on the strip charts, because they display partition data. [00:05:51] Speaker 02: But an addition was made that our friends essentially ignore. [00:05:55] Speaker 02: And it must have meant something additional to get over the prior art to add the language that is arranged to represent the physical geometry [00:06:02] Speaker 02: of the stacked tubes in the furnace. [00:06:04] Speaker 02: That was specifically added to the claims. [00:06:06] Speaker 02: And effectively, if you say it reads on the strip charts, which only partition, then you're ignoring the language that was added. [00:06:13] Speaker 02: You're ignoring the language in the claims. [00:06:14] Speaker 01: But the language that was added could have been directed to the first of the two things that we've been talking about, which is that the claims had to require that the defect be determinable in relation to a physical feature of the tubing. [00:06:31] Speaker 02: That was already in the claims, your honor. [00:06:33] Speaker 02: If I could direct your all's attention, please, your honor, the court's attention to the file history. [00:06:40] Speaker 02: And there's one page on which we can see that specifically. [00:06:43] Speaker 02: Your honor, it's in appendix one. [00:06:46] Speaker 02: And I direct you to page 14935. [00:06:49] Speaker 02: That's 14935. [00:06:52] Speaker 02: And I'll wait until your honors are all there. [00:06:56] Speaker 02: Please let me know when to proceed. [00:06:59] Speaker 02: It's volume one, your honor. [00:07:06] Speaker 01: Okay. [00:07:08] Speaker 02: If you look at, and the claims are all the same, so we can just look in this respect. [00:07:12] Speaker 02: You can look at claim one, for example. [00:07:14] Speaker 02: Before the amendment, the claims merely said, generate a display of sent partitioned inspection data. [00:07:21] Speaker 02: And that partitioned inspection data, if you look at the prior clause, was already done to show that inspection data relative and correlating it to the physical geometry. [00:07:33] Speaker 02: So what was already required by the claims before amendment [00:07:36] Speaker 02: was what you have in the strip charts, which is show a thin surface, for example, a thin wall on tube 11. [00:07:42] Speaker 02: That was already required. [00:07:44] Speaker 02: But the claims were amended to add the requirement that it be arranged to represent the physical geometry of the furnace. [00:07:51] Speaker 02: That took example one out of play. [00:07:53] Speaker 02: The specification tells you example one doesn't do that effectively at the bottom of column 11. [00:07:58] Speaker 02: And the explanation is clear. [00:08:00] Speaker 02: If I could direct the court a few pages later to 14950, [00:08:05] Speaker 02: That's 14950. [00:08:09] Speaker 02: Please let me know when to proceed, Your Honor. [00:08:15] Speaker 02: Is that me? [00:08:19] Speaker 02: At the bottom of the page, with the amendment, they explain four and a half lines up from the bottom. [00:08:26] Speaker 02: By contrast, in the furnace tube inspection system and method of the present invention, the claimed invention, [00:08:32] Speaker 02: The collected inspection data is displayed such that the data is arranged to represent the known physical geometry of the furnace. [00:08:38] Speaker 02: This is important, the next sentence. [00:08:40] Speaker 02: The collected inspection data has not merely correlated the particular tube sections of the furnace. [00:08:45] Speaker 02: So they're explaining what they added. [00:08:47] Speaker 02: No longer is a strip tube enough because all that does is correlate it. [00:08:53] Speaker 01: I think that hurts you because what Winslow did is [00:08:59] Speaker 01: it correlated to the tube segments, but not in a way that would enable you to determine the exact physical location. [00:09:07] Speaker 02: And that's why it helps us with due respect, Your Honor. [00:09:09] Speaker 02: The point is that the claims beforehand might have covered something like Winslow, because you could decide in tube 11 that there's a defect somewhere. [00:09:18] Speaker 02: But what Winslow didn't have and what this amendment overcame was the idea that you can do, which is very important in a refinery. [00:09:25] Speaker 02: These folks may not have the background [00:09:28] Speaker 02: to be able to look at a strip chart and know it, they can count up eight tubes by looking at this chart, and it shows them a quarter of the way in. [00:09:36] Speaker 01: But that's the first part of what we looked at as being the display limitation. [00:09:40] Speaker 01: In other words, that you have a chart, strip chart or actual furnace geometry chart, that enables you to find where in the section of tubing the defect exists. [00:09:54] Speaker 01: And that was the problem with Winslow, that it just [00:09:57] Speaker 01: gave you an approximation, right? [00:09:59] Speaker 02: Right. [00:10:00] Speaker 02: But I disagree with that premise. [00:10:02] Speaker 02: I think that what happened on the strip chart, Your Honor, what happened to the strip chart is, by the way, it kind of superficially, when you look at the examples, it looks like stacked tubes, but it's nothing like that. [00:10:12] Speaker 01: But strip chart, there's sort of an ambiguity here. [00:10:17] Speaker 01: There's Winslow's a strip chart, Norco is a strip chart. [00:10:21] Speaker 01: Which of those are you talking about? [00:10:23] Speaker 02: Well, now I'm talking about Norco, for example. [00:10:26] Speaker 02: And I just wanted to make sure we're on the right page on what the strip chart is. [00:10:29] Speaker 04: Is there any different data that's on the Norco strip chart than on the other ones that you think are an innovation? [00:10:37] Speaker 02: I would say the following. [00:10:38] Speaker 02: The same data could be contained in both charts, but represented and transformed very differently. [00:10:45] Speaker 02: And here's why. [00:10:47] Speaker 02: If you look at a strip chart, and it shows 226 above two [00:10:51] Speaker 02: 19. [00:10:52] Speaker 02: There's that many in between. [00:10:54] Speaker 04: It's a different graphical representation. [00:10:56] Speaker 04: I get that. [00:10:57] Speaker 02: Yes. [00:10:57] Speaker 02: But is there any different... There's not required by the claims to be different data. [00:11:01] Speaker 02: It could be the same data, but it's transformed. [00:11:03] Speaker 04: My understanding was that when you were doing these NORCO reports, your engineers or whoever's doing these, who I would assume you would consider the skilled artisans, can look at the strip charts and look at the data there and determine where the bins are. [00:11:17] Speaker 02: Yeah, they might be able to determine where the bends are, but here's the trick, Your Honor, which is because strip charts are time-based and what they're doing is just doing things by time, and because the pig is what they call the thing that moves through the inspection system, because it moves at a differential rate, just because you see something a quarter of the way into the strip chart, for example, doesn't mean that's where it actually is. [00:11:39] Speaker 02: It leads to all these false [00:11:41] Speaker 02: negatives, false positives, danger for people working at the plant. [00:11:44] Speaker 01: I thought that was the problem with Winslow and that in the NORCO chart, that was cured. [00:11:50] Speaker 01: That it might be more difficult to read than a display that looks like the tubing itself. [00:11:56] Speaker 01: But as Judge Hughes is suggesting, it had, the NORCO charts had the same information and the same ability to locate the defect. [00:12:05] Speaker 01: It might just be a little harder to do it. [00:12:08] Speaker 04: I would say it's not just harder to do it, but it's a very significant difference that in the strip chart, for example, you would look and... But you were starting to talk about the fact that the pig is just time-based and that there might be discrepancies between the actual location and where the data showed up in the chart. [00:12:28] Speaker 04: But you just said a minute ago that the data is the same, so that the data would be [00:12:35] Speaker 04: To the extent there were discrepancies, wouldn't the same potential errors be in the vertical bar display? [00:12:42] Speaker 02: No, when I met the data, and if I misspoke, I do apologize, Your Honor. [00:12:45] Speaker 02: When I met the data, I meant, for example, if it tells you the wall is super thin at a point, the strip chart might tell you the wall is super thin, and the invention might tell you the wall is thin. [00:12:55] Speaker 02: So that data would be the same. [00:12:57] Speaker 02: But the advantage of the patented feature, which displaying it pursuant to the actual geometry, is you could determine with more accuracy [00:13:05] Speaker 02: where that was occurring. [00:13:06] Speaker 01: The graphical representation. [00:13:07] Speaker 02: The graphical representation. [00:13:08] Speaker 02: And that's a huge, this is not an insignificant difference. [00:13:11] Speaker 01: How do we know that that's true? [00:13:13] Speaker 01: That the NORCO didn't allow that level of accuracy? [00:13:19] Speaker 01: How do we know that's true? [00:13:20] Speaker 02: Well, to begin with, the strip charts inherently are time-based. [00:13:24] Speaker 04: And because they are time-based and because... But the vertical charts are time-based too. [00:13:29] Speaker 04: I know you keep wanting to say that they're different, but you've said the data is gathered in the same way [00:13:35] Speaker 04: And the pig gathers data in a time-based thing. [00:13:38] Speaker 04: It's not any different than the claimed invention. [00:13:41] Speaker 02: Right. [00:13:42] Speaker 02: But then what's required is the computer executable program then transform that data and figure out where it would be in terms of the actual physical geometry of the actual furnace tube, which is much different. [00:13:55] Speaker 02: If I tell you we're leaving this courtroom, your honor. [00:13:57] Speaker 04: No, it's the same data, though. [00:13:59] Speaker 04: It's the same. [00:14:00] Speaker 04: It's giving you a different graphical representation. [00:14:03] Speaker 02: I would say, Your Honor, that it's being processed differently to determine the actual geometry, and then it's being represented differently. [00:14:11] Speaker 02: The thickness of the tube, for example, may be the same data. [00:14:14] Speaker 02: But the relative distance from one bend to another may be quite different, because the requirement in the claim now is to represent the physical geometry. [00:14:22] Speaker 02: Let me give you an example. [00:14:23] Speaker 01: How do we know that my understanding [00:14:27] Speaker 01: was that NORCO allowed that level of precision, even though it wasn't displayed to look like furnace tubing. [00:14:35] Speaker 01: How do I know that your characterization of the NORCO data as being less accurate is correct? [00:14:43] Speaker 02: The characterization of the NORCO data is maybe, Your Honor, best viewed as the problem that the invention set out to solve. [00:14:50] Speaker 01: What we know from the... Where in this record does it tell me that the NORCO data [00:14:56] Speaker 01: is less accurate than the graphical representation that you say is required? [00:15:05] Speaker 02: Well, I will say the following, Your Honor. [00:15:06] Speaker 02: This was resolved on summary judgment. [00:15:08] Speaker 02: I can point you to a number of expert reports and declarations, and I can give you those citations where the experts explained the problems and inaccuracies of dealing with something. [00:15:17] Speaker 01: Okay, so where does your expert say that the NORCO data is inaccurate? [00:15:21] Speaker 01: Only an approximation. [00:15:22] Speaker 02: The experts explain, I think, to directly answer your question, and I'll get you a citation on this. [00:15:31] Speaker 01: You're going to need to show me, not just tell me it's in there somewhere. [00:15:37] Speaker 02: More generally, I will say that I can give you at least a citation where the experts and the declarants explain that the strip charts being time-based were less accurate and reliable. [00:15:47] Speaker 02: I will have to look at whether I can give you a specific one on NORCO [00:15:50] Speaker 01: as an example of those strip charts, I will... It has to be NORCO, because that's what we're relying on here. [00:15:56] Speaker 02: But with due respect, Your Honor, I don't think it needs to be, because one thing that is clear is that NORCO, just like Winslow, does not represent the physical geometry of the statute. [00:16:07] Speaker 01: Okay, but you're suggesting that NORCO, like Winslow, doesn't give you completely accurate data, that it only gives you an approximation. [00:16:14] Speaker 01: You're going to need to show me [00:16:16] Speaker 01: where your expert said that NORCO suffers from that defect. [00:16:21] Speaker 01: Because I had understood before that the only difference between NORCO and what you say the claims require is that it looked like to be. [00:16:31] Speaker 01: It was easier to use, not that the data were different. [00:16:35] Speaker 02: And I would say that, and I will confer with my colleagues, and I apologize to the court for not having that citation handy, what I will say is where we are arresting ourselves is the idea that [00:16:46] Speaker 02: We all agree, and I think our friends agree, that NORCO is a strip chart of the type of example one. [00:16:51] Speaker 02: And the specification tells you, which is the single best reference for interpreting the claims, of course. [00:16:56] Speaker 04: But I still don't understand, and you seem to be wavering on this, is whether the data is the same or different. [00:17:05] Speaker 04: I would say that the data is the same. [00:17:07] Speaker 04: It's the same. [00:17:08] Speaker 04: It can be represented graphically in a bunch of different ways. [00:17:12] Speaker 04: You may have come up with the best one. [00:17:15] Speaker 04: To say that concentrate on the time-based notion of the NORCO one and suggest that the patented invention or the claimed invention is somehow better if it's the same exact data is confusing. [00:17:29] Speaker 02: It's not really the same exact data in the following sense, Your Honor. [00:17:31] Speaker 02: And this is where, and I apologize if you say wavering. [00:17:34] Speaker 04: So is the pig operating any differently, collecting any kind of different measurements, any kind of different time-based things? [00:17:41] Speaker 04: Is it doing anything different? [00:17:43] Speaker 02: I can't say that it is, Your Honor, but here's what I'm saying is the difference. [00:17:47] Speaker 02: And when we talk about the data, the reason that you characterize me as wavering is because we're [00:17:53] Speaker 02: not meeting in the middle on what we're talking about for data. [00:17:56] Speaker 04: When we're talking about data, I'm talking about what kind of information the pig is gathering. [00:18:01] Speaker 04: And I sense that you agree that the pig is not gathering any new data. [00:18:06] Speaker 04: I agree with that. [00:18:07] Speaker 04: It's gathering the same data. [00:18:08] Speaker 02: I agree with that. [00:18:09] Speaker 04: So the difference is in the way the data is presented in the charts. [00:18:13] Speaker 02: Not merely that, Your Honor. [00:18:14] Speaker 02: When we talk about data, and I see that I'm significantly over my time, so I apologize, Your Honor. [00:18:19] Speaker 02: But if I may address this issue at least, [00:18:22] Speaker 02: When we say the same data, what happens with the strip charts is you have a time-based pig gathering system. [00:18:27] Speaker 02: And at that point in time, if you have a weakness, if I could analogize it to our drive home, your honors, it may tell you that 11 minutes into your drive, you hit a pothole. [00:18:36] Speaker 02: It may tell you that information. [00:18:38] Speaker 02: But depending on traffic, depending on whether the president's caravan is out there, depending on the weather, 11 minutes in, just like these pigs operate at a different speed, 11 minutes in, you may either be still on [00:18:50] Speaker 02: Constitution Avenue, or you could be in different parts of I-66. [00:18:54] Speaker 02: You may know the road you're on, but you don't know where. [00:18:56] Speaker 02: The aspect of the invention that was amended and added to, the aspect of the invention that's in examples two through four and not one, goes to the idea of taking that, reorienting it, rescaling it, laying it out so that you know where that pothole is in the road, not just that it's 11 minutes into the drive. [00:19:15] Speaker 02: So it's collecting the same data, Your Honor. [00:19:17] Speaker 00: I want to interrupt you. [00:19:19] Speaker 00: Yeah, please. [00:19:20] Speaker 00: Thank you. [00:19:21] Speaker 00: If this is just about the content of the visual display of information, why is this not squarely a printed matter problem? [00:19:29] Speaker 02: Okay, and Your Honor, I assume you want me to keep going. [00:19:34] Speaker 01: We don't have the right to sit down when we're asking questions. [00:19:37] Speaker 02: I understand, Your Honor, and I'm happy to answer them. [00:19:40] Speaker 02: Your Honor, with respect to the printed matter issue, hopefully we address some of this in the simultaneous briefing that we did last Wednesday. [00:19:47] Speaker 00: Not satisfactorily to me, so try better. [00:19:50] Speaker 02: Okay. [00:19:50] Speaker 02: Well, I will tell you as a threshold matter, of course, with respect to the cases that we cite, for example, the Bernhardt case and the Lowry case say that when you have a computer that's processing the information and that's the one that's generating it. [00:20:04] Speaker 00: Right. [00:20:05] Speaker 00: If the only put aside the computer processing of the information to the extent that display limitation says [00:20:15] Speaker 00: Show me a better picture that gives me a better understanding. [00:20:21] Speaker 00: Visual display of quantitative information. [00:20:23] Speaker 00: There are lots of ways to do that. [00:20:24] Speaker 00: There are books written about it. [00:20:27] Speaker 00: Why is this not entirely about the better visual display, whether it's printed on a piece of paper or on a screen? [00:20:37] Speaker 02: Well, first of all, I think the better visual display is something that can be patentable. [00:20:41] Speaker 00: But I'm trying to avoid the obvious ambiguity of better visual display. [00:20:46] Speaker 00: More pixels, sure. [00:20:48] Speaker 00: Better processing to populate the pixels faster, sure. [00:20:54] Speaker 00: This is entirely, as I understand it, about the content of the picture. [00:21:00] Speaker 02: Yeah. [00:21:00] Speaker 02: And that's where I would respectfully disagree. [00:21:02] Speaker 02: So I'd answer it in two ways. [00:21:03] Speaker 02: The first aspect is, [00:21:05] Speaker 02: Inherent in the display limitation is additional processing of the data. [00:21:10] Speaker 02: I think even our friends don't disagree with that in the following sense. [00:21:13] Speaker 02: That inherent in there, what you're doing is you're reorienting tubes, you're rescaling tubes, you are transforming that information. [00:21:20] Speaker 00: You're not changing the tubes. [00:21:22] Speaker 00: You're changing the picture of tubes. [00:21:25] Speaker 00: You're not reorienting the tubes. [00:21:27] Speaker 00: You're changing the orientation of the picture of the tubes. [00:21:32] Speaker 00: The tubes are what they are. [00:21:34] Speaker 00: The physical things, right? [00:21:36] Speaker 00: The weight. [00:21:37] Speaker 02: No doubt that the tubes don't change, Your Honor. [00:21:39] Speaker 02: I agree with that. [00:21:40] Speaker 02: What I would say, Your Honor, is that there is processing going on and transformation going on when you take data that's merely correlated in partition relative to tube sections and then you have to arrange the data so as to represent the physical geometry. [00:21:57] Speaker 02: This is not necessarily a simple task because the fact that it moves at variable rates and it's time-based [00:22:02] Speaker 02: moving variable rates, the information in the data is being transformed before it's just being displayed. [00:22:08] Speaker 02: It might be a closer question on printed matter if you put aside the computer aspect of things, if all you did is you had the original claims that we had correlated and partitioned data and merely displayed what you already had, but here you're transforming the data. [00:22:22] Speaker 02: You are arranging the data so as to represent the physical geometry of the furnace, and that requires transformation. [00:22:29] Speaker 02: It requires reorientation of the tubes. [00:22:31] Speaker 02: It requires rescaling. [00:22:32] Speaker 02: That data is being manipulated. [00:22:34] Speaker 02: So it is not merely a matter of just printing something out differently. [00:22:38] Speaker 02: It's a matter of taking the data that you might have collected from the tubes, perhaps assembling additional data with regard to the physical geometry of the tubes. [00:22:45] Speaker 01: But that's part of the confusion here. [00:22:48] Speaker 01: I think what Judge Toronto is asking you is assume that you're wrong about the first aspect of the display limitation and that NORCO gives you the same data [00:22:59] Speaker 01: that the graphic display of the tubes would give you, that you can find the data. [00:23:06] Speaker 01: It's just more convenient to have it displayed in the graphical way so that it looks like furnace tubing. [00:23:14] Speaker 01: Assuming that that's all the display limitation does is give you this different kind of graphical display. [00:23:21] Speaker 01: Why isn't that barred under the printed meta? [00:23:28] Speaker 02: Yeah, and I would say if you first, and you've asked me to accept that we're not going to rely on the computer distinction drawn in Lowry and in Bernhardt, the fact that it's doing the processing, I would say beyond that, that you're not claiming the content of the information per se. [00:23:42] Speaker 02: The printed matter cases I'm familiar with, if you look at Praxair, if you look at King Pharmaceuticals, you look at the variety of, they're talking about merely claiming the content, what's on the sheet of paper. [00:23:53] Speaker 02: And if you look and you distinguish that, for example, from DiStefano, for example, [00:23:58] Speaker 02: where you have categories of things. [00:23:59] Speaker 02: Here, you're not displaying x, y, z's per se. [00:24:04] Speaker 02: It's not claiming the content of the information. [00:24:07] Speaker 02: And I would say beyond that, there's a functional relationship that is distinct from the situations, for example, in the Engai case and in the King Pharmaceuticals case, where the rest of the claim can be carried out without any of it. [00:24:20] Speaker 02: It doesn't affect anything, just the mere provision of an instruction chart. [00:24:24] Speaker 02: Here, our contention, I understand that the court may or may not accept it. [00:24:27] Speaker 02: Our contention and our belief is part and parcel of this invention and really what distinguishes it from the prior art and makes it a great invention is that display step, which requires that you manipulate the data. [00:24:38] Speaker 02: You have to arrange it so as to represent the physical geometry of the furnace tubes and then display it. [00:24:45] Speaker 00: Before you sit down, can I just ask one? [00:24:46] Speaker 00: Please, Your Honor. [00:24:47] Speaker 00: This is a completely different topic. [00:24:48] Speaker 02: Of course, Your Honor. [00:24:49] Speaker 00: In your supplemental brief, you refer to the anticipation ground here as public use. [00:24:56] Speaker 00: Most, if not all, of the prior discussion, at least that I remember, refers to it as an on-sale bar. [00:25:05] Speaker 00: And if it's an on-sale bar, which of the methods, systems, computer-readable media were sold? [00:25:13] Speaker 02: I see it as more, and we got involved at the appellate stage, Your Honor, I see it as more of a public use issue more than an on-sale bar issue in the following sense. [00:25:23] Speaker 02: Just so everyone has context of what happens here, [00:25:26] Speaker 02: Some of the claims are system claims for a computer system. [00:25:28] Speaker 00: I think the three things I just mentioned of the ones here, you wrote a couple of method claims. [00:25:33] Speaker 02: And the idea is there's no contention that we, let's say, sold to NORCO the software itself, or that NORCO practiced the software itself. [00:25:40] Speaker 02: So I'm not trying to get out of the idea of 102B by the fact that our folks may have utilized, the argument goes, may have utilized a claim system to deliver a result. [00:25:52] Speaker 02: I think under this court's precedent, [00:25:53] Speaker 02: If it met the other factors of 102B, you could end up in a situation where that's a bar, even though we didn't give the public and didn't give the customer that software. [00:26:03] Speaker 02: Point is, that's not our argument, but it is not a public sale in the sense that we didn't sell the software system. [00:26:08] Speaker 01: We didn't sell the method. [00:26:10] Speaker 01: This may not make any difference, but I think it still would fall within the sale category. [00:26:15] Speaker 01: Look at Scaltech, for example. [00:26:17] Speaker 01: If you perform a method [00:26:19] Speaker 01: for compensation. [00:26:21] Speaker 01: That's a sale of the method. [00:26:23] Speaker 01: It doesn't fall under public use. [00:26:25] Speaker 01: I don't think it makes any difference. [00:26:26] Speaker 02: I don't think it makes a difference in the end of the day, Your Honor. [00:26:28] Speaker 02: I will agree with Your Honor that you could view the system, use of the system claims and then the sale of the end product as that situation. [00:26:37] Speaker 02: The method claims a little murkier. [00:26:39] Speaker 02: I think in the end of the day, we would concede [00:26:43] Speaker 02: which we strongly disagree that you get there, but that if you carried out all of the steps, if it had all of the elements, that we view it as a use in the sense that we used it, but we sold the product, and whether you wanted to do it under Scalatec and say that that was a public sale, that was an on-sale bar, I think you get to the same place. [00:27:02] Speaker 02: I wanted to make it clear that in our appeal we're not contending that there is a difference in the sense that [00:27:08] Speaker 02: because we kept it to ourselves that it couldn't generate a 102B. [00:27:12] Speaker 02: That is not our contention. [00:27:13] Speaker 00: I asked the question in part because it seemed to me it might have some bearing in a way helpful to you on claim either 30 or 40 or both. [00:27:23] Speaker 00: That is, what is on the disk might be one thing. [00:27:26] Speaker 00: What was used might be another. [00:27:28] Speaker 02: There I agree with you. [00:27:29] Speaker 02: On claims 30 and 40, hopefully we've made that aspect clear, which is [00:27:33] Speaker 02: Those both rely on something called the bend-detect feature, where there was an automatic detection of bends. [00:27:39] Speaker 02: And there's one thing that's very clear from the record that we emphasize is, if we were to use that feature on those NORCO reports, there would be Xs. [00:27:47] Speaker 02: And there are no Xs, which is part of the reason we think it's neither on sale. [00:27:52] Speaker 01: With respect to claims 30 and 40, that the capability isn't enough to make it anticipated that [00:28:00] Speaker 01: You would have to find that it was actually used in the performance of the service. [00:28:05] Speaker 02: Right. [00:28:05] Speaker 02: We don't believe that they've proven by clear and convincing evidence that there was capability in the actual code that was used to generate NORCO. [00:28:11] Speaker 02: But in addition to that, Your Honor is correct. [00:28:14] Speaker 02: If they didn't use that feature in terms of generating it, then we don't think in that circumstance it would generate a FinJAN type of an issue. [00:28:22] Speaker 02: Think, for example, making widgets in a factory, Your Honor. [00:28:25] Speaker 02: Just because you have the capability in the factory of doing something else, it doesn't put it on sale with that machine. [00:28:30] Speaker 02: Here, if they didn't utilize the function, which again, we disagree it was even available, that it was even the executable code that was used could have done it, but here it's very clear it didn't do it, to hold us to an on-sale bar for some capability that I guess theoretically could have been on our computers, capable on our computers and never used, I think that would push the law further than either finjan or fantasy sports would. [00:28:54] Speaker 02: allow, and it would be unjust, the fact that we have some capability in our computer that wasn't used. [00:28:59] Speaker 01: Yeah, but maybe there's a difference between a feature that's commented out and couldn't be used and a feature which is in the program which could be used but just didn't happen to be used as part of the performance of the system. [00:29:15] Speaker 02: Your Honor, the case law, I've reviewed the case law on this and respectfully I think [00:29:20] Speaker 02: It's a little bit in some gray holes, if you will, whether the capability aspect of FinGen would somehow apply to something we didn't use in carrying out the product. [00:29:32] Speaker 02: I would submit that it would be wrong to hold us responsible for not using some aspect of feature, even if it did have the capability in our computers of doing it. [00:29:41] Speaker 02: But I don't think you also need to get there. [00:29:43] Speaker 02: I suppose it wasn't commented out. [00:29:45] Speaker 01: But the feature was in the program, and the program was used. [00:29:49] Speaker 01: isn't that sufficient, even if because of the factual circumstances, one feature of the program wasn't used? [00:29:59] Speaker 02: I would disagree in this circumstance, and here's why. [00:30:02] Speaker 02: It is not like we sold the product to a customer who then could use or not use a feature, as in FinJan, as in Fantasy Sports. [00:30:09] Speaker 02: The mere idea that in our computer system, we could have done something that we didn't do, even if true, that that would create some kind of a bar, [00:30:16] Speaker 02: I would look at, for example, the electric battery case from the Supreme Court, which talked about the actual use when manufacturing something, putting that into a 102B kind of a category. [00:30:27] Speaker 02: So the electric battery case would be one example. [00:30:29] Speaker 02: But I really think that you would stretch the Finjan. [00:30:33] Speaker 02: Look, I understand in Finjan, if you sold a computer product, if I sold a computer product. [00:30:37] Speaker 01: But you've got a pretty good argument if it's commented out. [00:30:40] Speaker 01: Yes, I agree. [00:30:40] Speaker 01: It has to be activated. [00:30:42] Speaker 01: But if it's just part of the program, [00:30:44] Speaker 01: and could be used and it just happens that in running the program you didn't use that particular feature. [00:30:52] Speaker 01: I'm not sure that's the same thing as when it's commented out. [00:30:55] Speaker 02: I think that's an important question and I actually respectfully disagree with your honor, respectfully, which is here's why. [00:31:01] Speaker 02: I get the idea of you having put a program, let's say, that I sell to Judge Toronto that has a capability in it to do something, that I've commercialized and put that on sale. [00:31:12] Speaker 02: I think I'd look at electric battery also, but I think if I [00:31:15] Speaker 02: don't use that at all in manufacturing what I then sell? [00:31:18] Speaker 02: Have I commercialized that unused technology? [00:31:21] Speaker 02: I don't think so. [00:31:23] Speaker 01: OK. [00:31:24] Speaker 01: Unless there are other questions, I think we're done for the moment. [00:31:26] Speaker 01: We'll give you two minutes for rebuttal. [00:31:28] Speaker 01: Thank you very much, Your Honors. [00:31:34] Speaker 01: Mr. Fulkerson? [00:31:36] Speaker 05: May I please record? [00:31:38] Speaker 05: Let's envision the data for a moment. [00:31:41] Speaker 01: Could we just, since we were on [00:31:44] Speaker 01: claims 30 and 40. [00:31:45] Speaker 01: Could we just stick with that for a moment? [00:31:47] Speaker 01: Absolutely. [00:31:48] Speaker 01: And it strikes me in reading these declarations that it's a bit of a stretch to say that we're in the area of a sham affidavit because there are detailed explanations as to why mistakes were made the first time around here. [00:32:09] Speaker 05: All of which are incorrect and inconsistent with the record. [00:32:12] Speaker 05: And the court below went straight through that, every single aspect of it. [00:32:16] Speaker 01: While I don't think the court did go through every single aspect of it actually, it seemed to be sort of summary. [00:32:23] Speaker 01: Let's take the question of whether the witness when it's named D. Lorenzo was [00:32:33] Speaker 01: looking at 2004, a 2004 program and wasn't aware of it. [00:32:41] Speaker 01: And the 2004 program couldn't have been used in creating the Dorco strip charts, right? [00:32:47] Speaker 01: So he says, I didn't realize that I was not looking [00:32:50] Speaker 01: at the earlier version of this that could have been used with NORCO. [00:32:55] Speaker 01: And in fact, if I looked a few pages earlier, I would have seen that this was a 2004 program, which of course could not have been used for NORCO. [00:33:02] Speaker 05: Let me give you the exact references to that. [00:33:04] Speaker 05: There were two programs, BendDetect.m, which their experts say was used in the NORCO report, and which contains composite bend indicators. [00:33:14] Speaker 05: That's in paragraph number 36 of their expert declaration. [00:33:18] Speaker 05: Then there's bendetect.a or revision A, which is the one I mistakenly asked him about instead of bendirect.m. [00:33:28] Speaker 05: Bendirect or bendetect.m also has the composite data marker information in it. [00:33:34] Speaker 05: That may be, but he didn't testify about that, right? [00:33:37] Speaker 05: He did. [00:33:38] Speaker 05: Not just with respect to those lines, which were repeated in bendetect.m, which was dated August 28, 2002. [00:33:46] Speaker 05: But he said it in about five, six different ways. [00:33:49] Speaker 05: He said that the only automated system that was in effect was Mr. Bondurant's six algorithm averaging system. [00:33:59] Speaker 05: That's the composite data marker. [00:34:01] Speaker 05: Calling it the automatic system, he volunteered and referred to it that way himself without any leading from me on eight different occasions. [00:34:09] Speaker 05: And the reason that it doesn't show X is because when it popped up, there were false positives, he testifies. [00:34:16] Speaker 05: and he went in and manually marked each and every one of them. [00:34:20] Speaker 05: That's why they have black tick marks instead of Xs. [00:34:24] Speaker 05: The way that that testimony, that supposedly exonerating testimony was given was this composite data marker couldn't exist until July 8, 2004 when this bin-detect.m revision A was drafted. [00:34:39] Speaker 05: Well, that's a month and a half after it was claimed in the provisional patent application. [00:34:46] Speaker 05: an impossible proposition. [00:34:47] Speaker 01: Okay, but where is it that he testifies that the earlier version, I don't know which one you want, the M version, which is like 2002, where does he testify that the M version was used for Narcos? [00:35:07] Speaker 05: only by referring to it as the automatic six-part algorithm that Mr. Bondurant created. [00:35:13] Speaker 01: Okay, so there's an inference that you're making that he was... Not really. [00:35:17] Speaker 01: That the 2004 and the M version are the same in this respect, right? [00:35:22] Speaker 05: Not really. [00:35:23] Speaker 05: And if the court will take a look at the appendix, if I can take a moment just to find it, the appendix at 18765, the Calgary... Which volume is this? [00:35:33] Speaker 05: That's appendix 18... What volume? [00:35:37] Speaker 05: I do this is the expert report This page is all yellow is this confidential hi, it may be Well, then you shouldn't be reading in an open court [00:36:04] Speaker 05: Well, I will simply make reference to it. [00:36:07] Speaker 05: I'll respond as required by you, of course, but not otherwise. [00:36:11] Speaker 01: I mean, this stuff should not be more confidential. [00:36:14] Speaker 01: I don't understand why it's more confidential. [00:36:17] Speaker 05: I did not. [00:36:18] Speaker 05: But I can tell you more globally, Your Honor, exactly. [00:36:22] Speaker 04: I'm not sure it's going to really help, because it's a bunch of code and language about what the code means. [00:36:27] Speaker 04: And I'm certainly not a computer science guy, so this code doesn't have to be. [00:36:31] Speaker 04: You don't have to be. [00:36:33] Speaker 05: You honestly don't have to be. [00:36:35] Speaker 05: that when their experts say that this particular code was used, it's not the revision A which they're complaining about and say was commented out. [00:36:44] Speaker 05: It is the earlier version in response to our argument that they anticipated claim number 40, which required the use of- This is your expert's testimony. [00:36:55] Speaker 01: No, it's theirs. [00:36:56] Speaker 01: Or their expert's testimony, but this is not the deposition testimony. [00:37:03] Speaker 01: that the district court relied on. [00:37:08] Speaker 05: You're correct. [00:37:09] Speaker 05: The deposition testimony that the district court relied upon was not just the statement that the court is focused on here, relating to the composite data marker, but to the eight different times that the witness said, we used an automatic bend indicator. [00:37:25] Speaker 05: And the only automatic bend indicator identified ever in the record was the composite data marker. [00:37:31] Speaker 05: So he didn't testify to it once. [00:37:34] Speaker 05: He testified to it eight times, and he described how it didn't work, how he had to override it, how it made the processing quicker. [00:37:44] Speaker 05: It is impossible for it to be an accident when he repeated it eight different times. [00:37:49] Speaker 05: The argument that X marks the spot and there was no X. But he made a mistake. [00:37:53] Speaker 01: People make mistakes. [00:37:55] Speaker 01: And I don't think the sham affidavit doctrine is designed to say that every time you make a mistake, you can't correct it. [00:38:03] Speaker 01: for some re-judgment purposes. [00:38:06] Speaker 01: What the cases say is you can only correct it if it's a blatant effort to take back something without a good reason. [00:38:13] Speaker 01: And D. Lorenzo went on at length explaining how he made the mistake and why he made the mistake. [00:38:20] Speaker 01: And it may not be credible. [00:38:21] Speaker 01: If you were in front of a jury, it may not be credible. [00:38:25] Speaker 01: But it doesn't seem to me [00:38:27] Speaker 01: that a court can just say, oh, well, forget about it. [00:38:31] Speaker 01: I don't believe it. [00:38:32] Speaker 01: As the district court said here, it's not credible. [00:38:36] Speaker 01: That's not what the district court is supposed to be doing. [00:38:39] Speaker 05: Actually, it is under the Third Circuit principle. [00:38:41] Speaker 05: If your court takes a look at the Delbert v. NRA case, the Third Circuit law at page 392 says the question about whether or not you have created an explanation of confusion [00:38:53] Speaker 05: or if you have confirming information, is reviewed on an abuse or discretion standard. [00:38:58] Speaker 05: And so the question of whether or not that information is satisfactory, that's the word used in the Third Circuit, is a determination made under the abuse or discretion standard. [00:39:08] Speaker 01: But maybe, but it's not, the district was not supposed to be making a credibility determination on summary judgment. [00:39:13] Speaker 01: That's not a right of... And that's not what she did. [00:39:16] Speaker 01: That's what she said she did. [00:39:18] Speaker 01: She said... I know she used that word. [00:39:20] Speaker 05: Just as in Jimmy, this court used the word credibility. [00:39:24] Speaker 05: It's another word of using the word plausible or satisfactory that are also used in the sham declaration doctrines. [00:39:32] Speaker 05: The court has to be, just like in a Dalbert challenge, that has to be the determiner of whether or not evidence that contradicts sworn testimony is admissible. [00:39:43] Speaker 05: And in this case, it's an admissibility determination under the law, just like Dalbert [00:39:48] Speaker 05: just like whether or not state of mind is relevant or any other admissibility determination and the trial court has to have discretion in that connection and it is entitled to substantial deference. [00:39:59] Speaker 05: If the court has any question whatsoever about whether or not the information in the exonerating claims is correct, I would ask the court to take a look at the [00:40:11] Speaker 05: Supplemental declaration of Mr. Schaeffer and Mr. Rao in the record at 1984 through 1995. [00:40:22] Speaker 05: And I do not know what volume that is in. [00:40:28] Speaker 05: We literally go line and verse through every single claim that is made in the exonerating argument. [00:40:37] Speaker 05: And if the court has any doubt about whether or not the district court discharged its discretion properly, then I think that that resolves it. [00:40:45] Speaker 05: Because it's not a question of opinion. [00:40:47] Speaker 05: We're looking at the physical documents and what they do. [00:40:52] Speaker 05: It is not a question of whether or not the expert's interpretation is or is not in a particular manner. [00:40:57] Speaker 05: It's straight off the documentation. [00:40:59] Speaker 01: What you're looking at is you're saying the documents contradict the testimony, the corrective testimony that the expert [00:41:07] Speaker 01: shows the testimony. [00:41:09] Speaker 01: That's not what the sham affidavit doctrine is about. [00:41:12] Speaker 01: That's what a trial is for. [00:41:15] Speaker 05: I would also say that the courts, I will respectfully disagree, but also say that the court would have been justified in excluding a number 30E or rule 16 because it constitutes expert testimony as to whether or not a composite data marker was a part of the software. [00:41:31] Speaker 05: Both were violated. [00:41:32] Speaker 05: Rule 30B6 was violated where a 30B6 witnesses was testimony. [00:41:37] Speaker 05: was contradicted by other parties. [00:41:39] Speaker 05: And the court could have justified her decision on any one of the three. [00:41:42] Speaker 00: Can I ask you one specific thing? [00:41:44] Speaker 00: Mr. Morin, both in his brief and this morning, emphasized the absence of the Xs. [00:41:50] Speaker 00: And I'm having a little hard time understanding. [00:41:53] Speaker 00: I know your response had something to do with the idea that the program at that stage created false positives. [00:42:03] Speaker 00: Yes. [00:42:04] Speaker 00: And therefore, you wouldn't expect to see Xs? [00:42:07] Speaker 00: It's that therefore that I'm missing. [00:42:10] Speaker 05: No. [00:42:10] Speaker 05: Okay. [00:42:10] Speaker 05: Let me explain. [00:42:11] Speaker 05: In the August 28, 2002 invention disclosure by Mr. Bondurant, which is part of the lunum declaration, he shows Xs as of August 28, 2002. [00:42:23] Speaker 05: And in his description of figures one and two, which become figures three and four of the patent, the Xs are there as of that time. [00:42:34] Speaker 05: Mr. DiLorenzo testifies that he used the automated program and it produced these prompts, but because it produced false positives, he went through and manually marked each one of the bins. [00:42:47] Speaker 00: Where are the Xs? [00:42:48] Speaker 00: Are the Xs your prompts? [00:42:53] Speaker 00: Why are the Xs not being produced? [00:42:55] Speaker 00: I don't know. [00:42:56] Speaker 00: I do not know. [00:42:58] Speaker 05: He testified that whether it was an X or it was a mark or it was a white stripe was irrelevant. [00:43:05] Speaker 05: That was his testimony. [00:43:07] Speaker 01: The specification says an X. I thought in his corrected testimony he said I can tell this wasn't used because it didn't produce X's in the NORCO charts, right? [00:43:17] Speaker 05: Yes, an additional contradiction to his original testimony. [00:43:20] Speaker 01: Okay, but there's an explanation there as to why [00:43:24] Speaker 01: his original testimony about the use of these things was inaccurate. [00:43:29] Speaker 01: And he may be wrong. [00:43:30] Speaker 01: He may not be believable. [00:43:32] Speaker 01: But I just don't see how you can say that that testimony has to be dismissed as a sham affidavit. [00:43:40] Speaker 05: Because his testimony is not inconsistent with any other fact he's pointing to. [00:43:47] Speaker 05: The revision A writes it out. [00:43:50] Speaker 05: It writes composite data markers out as of July 2004. [00:43:54] Speaker 05: that's on the face of the software. [00:43:57] Speaker 05: I don't have to reconcile that. [00:44:00] Speaker 05: When he's saying I used the automatic version and it was the six part process, he says it eight times, I don't have to reconcile that. [00:44:11] Speaker 05: And when the X disappears, it apparently disappears because he's manually marking each bend. [00:44:18] Speaker 05: If he had just left the automatic system on, apparently it would have produced an X. [00:44:22] Speaker 05: But he does testify, and it reconciles away the conflict that he manually marked each bend. [00:44:30] Speaker 05: Now, with my time remaining. [00:44:32] Speaker 01: I think you should turn to the display limitation. [00:44:36] Speaker 05: Let me explain that as simply as I can. [00:44:40] Speaker 05: Partitioning has been conceded throughout this case, that the data was partitioned. [00:44:45] Speaker 05: What that means is that the data is reconciled to some physical object in the furnace. [00:44:51] Speaker 05: imagine that it is creation of a data tinker toy. [00:44:54] Speaker 05: It could be blue, it could be green, it could be red. [00:44:58] Speaker 01: And when that two-dimensional strip... Well, you seem to be differing about whether the partition limitation or the display limitation requires that you be able to locate the defect in relation to the physical feature of the tubing. [00:45:09] Speaker 05: Correct. [00:45:10] Speaker 05: And they're interconnected, if I may explain. [00:45:13] Speaker 05: Once you partition, then the error term that comes from just using an axial encoder through a mile of furnace [00:45:21] Speaker 05: goes away, because now you're reconciling the data to the beginning and the end of a known length of a tube segment. [00:45:28] Speaker 05: Now whether or not that data tinker toy appears as a quarter inch... How do they do that? [00:45:34] Speaker 03: How do you do that with the pigs? [00:45:36] Speaker 03: Is it because you can tell where they're going through a bend? [00:45:41] Speaker 05: Yes. [00:45:41] Speaker 05: What happens is in an ultrasound system, you need the system to be perpendicular for the wave to return with enough power to get a reading. [00:45:49] Speaker 05: When you go into the curve, [00:45:51] Speaker 05: what happens is the wave gets distended. [00:45:53] Speaker 05: So instead of returning to the transducer, it hits the pig at a different part, not back to the transducer. [00:46:00] Speaker 05: So the data looks different somehow when it's going through a bend? [00:46:03] Speaker 04: Correct. [00:46:03] Speaker 04: And you can tell that based upon the readings? [00:46:05] Speaker 05: Correct. [00:46:05] Speaker 05: When you go through a bend... Is that kind of reading in the strip display? [00:46:11] Speaker 05: Yes. [00:46:11] Speaker 05: It appears as a white stripe in the original NORCO report. [00:46:15] Speaker 05: It appears as a black tick in the second NORCO report. [00:46:18] Speaker 05: But here's my overall point. [00:46:20] Speaker 05: The difference between [00:46:21] Speaker 05: our different images and our arguments about the different images is that the two-dimensional strip chart is not merely time-based. [00:46:29] Speaker 05: Once you partition it, you cut it up into known slices, say a 50-foot tube, and now you have reconciled down the error term. [00:46:40] Speaker 05: Look at figure four, for example, in the Norco report, and it shows in the upper right-hand corner positional location within two-tenths of a foot. [00:46:50] Speaker 05: And it's very clear in the record that that's what is being given. [00:46:54] Speaker 05: The only thing that happens in the difference of the making of a two-dimensional strip chart and the other figures, five and six, is that those Tinker Toys are all replaced with one color, and they're flipped back and forth. [00:47:07] Speaker 01: But is there some place in the record that tells us that NORCO is giving the same level of accuracy as the graphical display? [00:47:18] Speaker 01: Where do we find that? [00:47:21] Speaker 05: Let me see if I can find the pin sites very quickly. [00:47:27] Speaker 05: The NORCO report, it appears in about half a dozen places and I just need to find it for you. [00:47:42] Speaker 05: Yes, the NORCO report, it's 1654. [00:47:49] Speaker 05: page 16, 541 through 605, in the... Can you say those numbers again? [00:47:55] Speaker 05: Yes, please. [00:47:57] Speaker 05: In page 16, 541 through 605, if the court will turn to the section referring to the position module, there are a picture of the different modules. [00:48:15] Speaker 05: I don't have a pin site to that page. [00:48:17] Speaker 01: You should bring your appendix with you. [00:48:19] Speaker 01: This happens all the time. [00:48:20] Speaker 01: I don't understand. [00:48:22] Speaker 01: You really need to have your appendix. [00:48:23] Speaker 01: We're going to ask you about it. [00:48:25] Speaker 01: We need to be on the same page. [00:48:27] Speaker 05: Yes, Your Honor. [00:48:30] Speaker 05: In the section of the report referring to the position module. [00:48:37] Speaker 00: One problem I'm having is that those words, position module, I'm not finding on the table of contents, so I'm having a hard time [00:48:45] Speaker 00: figuring out how to find it. [00:48:49] Speaker 05: I apologize. [00:48:50] Speaker 05: It's right after the picture in the report that shows the various modules. [00:48:55] Speaker 05: It refers to the module that determines position. [00:48:59] Speaker 05: It refers to the fact that it has an axial encoder, roll encoder, three accelerometers. [00:49:05] Speaker 05: Why don't you borrow our opposing counsel? [00:49:07] Speaker 02: I was just getting ready to hand it out, actually. [00:49:08] Speaker 02: Here you go. [00:49:09] Speaker 02: Thanks. [00:49:09] Speaker 02: Of course. [00:49:11] Speaker 02: There may be my markings on those. [00:49:12] Speaker 02: No, that's not important. [00:49:14] Speaker 05: They won't be important. [00:49:19] Speaker 05: Here we are. [00:49:22] Speaker 05: If your court will look at page 16, 547, just below the photograph of the FTIS tool, it says the position module below that includes actual pitch and roll sensors that continuously monitor the telemetry and orientation of the tool during an inspection. [00:49:45] Speaker 05: This information is essential to properly identify the positioning of the collected data. [00:49:50] Speaker 05: The module houses two axial encoders that record the tool's axial location within the furnace coil, a roll quarter that tracks spiral rotation or roll, and two accelerometers that record the vertical orientation and unit acceleration. [00:50:07] Speaker 01: This seems to be dealing with the collection of data. [00:50:10] Speaker 01: I don't think there's any question that the data is being collected. [00:50:14] Speaker 01: My understanding is that they contend that it's not being shown [00:50:19] Speaker 01: in the Norco strip charts, but somehow the Norco strip charts are showing different data than you would get in the graphical display. [00:50:33] Speaker 05: No, it's the same data. [00:50:35] Speaker 01: Well, that may be, but I'm just looking for a site that tells me that. [00:50:41] Speaker 04: So maybe I'm completely misunderstanding this, and it's very likely that [00:50:46] Speaker 04: My sense is that the strict chart is based upon time. [00:50:50] Speaker 04: And so it doesn't show the tubes in an exact graphical representation. [00:50:57] Speaker 04: And the segment links may not even be the same for each tube on the chart in terms of time. [00:51:03] Speaker 04: You may have one that's this big, and then one is bigger or one smaller, even though they're the same actual physical length at the same time. [00:51:11] Speaker 04: And what the vertical bar display is somehow [00:51:15] Speaker 04: transfer that time-based data based on knowing where the bins are to an actual, you know, it either has to stretch it out or shrink it to make them all the same physical length. [00:51:27] Speaker 05: That's correct. [00:51:27] Speaker 05: When you move from, if I understand the question, when you move from figure three to figure five, you just stretch the data to a common length, you flip bar two over number one, flip bar three over number two, flip bar four over number three, and so on. [00:51:43] Speaker 05: That's the only difference. [00:51:45] Speaker 05: That's the only processing involved, and that comes straight out of a MATLAB program. [00:51:50] Speaker 01: OK, that may be, but you can't testify here. [00:51:53] Speaker 01: And we're struggling with finding something in the record that answers the question. [00:51:58] Speaker 01: I'm happy to provide you the slides, if I may. [00:52:05] Speaker 05: Exhibit number 222 and the deposition [00:52:12] Speaker 05: Mr. Bondurant, which is attached as exhibit C and is at... What page? [00:52:19] Speaker 05: That is at 16, 255 through 56. [00:52:21] Speaker 05: I believe that's in volume two. [00:52:24] Speaker 04: 16 what? [00:52:41] Speaker 05: I'm not sure where it has gone to, because at any rate, I will find it and I'll provide you the pen sight to it, Your Honors. [00:52:56] Speaker 05: He testifies that the only difference between Figure 3 and Figure 5 is what I've described, taking the data, attaching it to a standard length, and flipping it back and forth. [00:53:08] Speaker 00: Let me just see what my understanding is. [00:53:11] Speaker 00: So if I'm looking at three or four, I don't think it makes any difference. [00:53:15] Speaker 00: The horizontal axis is a time interval, but that's really quite irrelevant. [00:53:20] Speaker 00: What's important is where each of the 1x, 2x, 3x, 4x, and those are marked where if you look at it, there's either a little white line or in the other one more like a black line. [00:53:33] Speaker 00: Exactly. [00:53:34] Speaker 00: That is the information that identifies the bends from, among other things, the tilting of the censoring device. [00:53:41] Speaker 00: Correct. [00:53:41] Speaker 00: Right. [00:53:42] Speaker 00: So even though the horizontal axis is time, the chart is in fact showing at each of the x's where the tubes begin and end. [00:53:50] Speaker 00: Correct. [00:53:50] Speaker 00: And then when you go to five, all you do is making all the tubes the same length and flipping them over. [00:53:56] Speaker 05: Correct. [00:53:56] Speaker 05: OK. [00:53:57] Speaker 05: That's exactly right. [00:53:58] Speaker 05: In other words, you start with time as you've asked. [00:54:01] Speaker 05: Then once you have time, [00:54:03] Speaker 05: You mark it, the bend, you have a known length, and then you can do whatever you want with the name. [00:54:08] Speaker 01: And now there is the same accuracy, regardless of how the data is displayed. [00:54:12] Speaker 01: Exactly. [00:54:13] Speaker 00: And is something in the spec? [00:54:15] Speaker 00: We have two slightly different things, right? [00:54:18] Speaker 00: We have the question of Nucor, which is not a claim construction matter, and then we have a claim construction matter. [00:54:25] Speaker 00: So just focusing on the claim construction, is there something in the specification that tells us [00:54:32] Speaker 00: that all these little X's under the white lines or the black lines are the bends? [00:54:37] Speaker 05: Yes. [00:54:38] Speaker 00: What's that? [00:54:39] Speaker 05: If the court will take a look at, under example number one... This is in column 11? [00:54:49] Speaker 05: It's in column 11, column 10 and column 11. [00:54:52] Speaker 05: I believe it is in column 11. [00:54:54] Speaker 05: It refers to, it may be expressed as either an X or it may be expressed as a black tick or a white stripe. [00:55:01] Speaker 05: Right, the bottom of column 10. [00:55:03] Speaker 05: Yes, I believe that's in the bottom of the 10, roughly in line 50 in that range. [00:55:08] Speaker 05: But we'll be happy to provide that specific reference to you. [00:55:11] Speaker 05: The other part that it appears is when you transverse over to column 11, and they're discussing the efficacy of the Norco type report, they say you can determine problem areas with a single glance, which is the same language that is used to describe figures five, six, and nine [00:55:31] Speaker 05: after the data is stretched and then flipped. [00:55:34] Speaker 05: And so, insofar as its capability to tell an operator or a person of ordinary skill what's going wrong with the furnace, the same word formula is used by the inventors in the specification to describe that. [00:55:49] Speaker 05: I am way beyond my time. [00:55:51] Speaker 01: Okay. [00:55:52] Speaker 01: Thank you, Mr. Faulkerson. [00:55:55] Speaker 01: You're finished? [00:55:57] Speaker 01: We're done. [00:55:57] Speaker 01: Thank you. [00:56:07] Speaker 02: And please, the Court, briefly, Your Honor, starting with the questions that you asked about the sham affidavit rule, there is more than adequate explanation. [00:56:19] Speaker 02: And both the Daubert case that he cites and the Chase case make clear that if there are explanations or corroborating evidence, you shouldn't ignore the affidavits. [00:56:26] Speaker 02: But one thing answers it that I haven't heard any response to, which is there are two expert reports that were submitted explaining why there was no anticipation. [00:56:35] Speaker 02: Those can be found in the record. [00:56:37] Speaker 02: your honor, at A18691 through 726 and A18731 through 67. [00:56:48] Speaker 02: And so those weren't thrown out, so you at the very least have material factual issues. [00:56:52] Speaker 02: The record also makes clear that there would be Xs, not might be Xs, but would be Xs. [00:56:57] Speaker 02: Even the MATLAB M, or Bend Direct M program that my friend referred Judge Torano to on page A16988, [00:57:05] Speaker 02: indicates that there would be in the code black x's placed if those routines had been run. [00:57:10] Speaker 02: So irrespective of what you find, Your Honors, irrespective of what you find with respect to the display limitation, at least claims 30 and 40, there are disputed factual issues. [00:57:22] Speaker 02: Even respectfully in my friend's exchange with Your Honors, you saw the factual issues. [00:57:26] Speaker 02: Where in the code is this? [00:57:28] Speaker 02: What code was used? [00:57:29] Speaker 02: The record below is far from clear. [00:57:31] Speaker 02: This is not an issue that should have been resolved with respect to claims 30 and 40. [00:57:35] Speaker 02: on summary judgment. [00:57:36] Speaker 02: So at the very least, there should be a remand of those, irrespective of where you end up on the display limitation. [00:57:42] Speaker 02: With respect to the display limitation, I think it boils down respectfully to my friends to this, which is the claims, and I pointed you to this earlier, Your Honors, were amended. [00:57:52] Speaker 02: Whereas before, they only required a display of partition information. [00:57:56] Speaker 01: But you were going to give us a site to show that, in fact, NORCO is [00:58:04] Speaker 01: has the same accuracy problems as the prior are. [00:58:07] Speaker 02: Yes. [00:58:08] Speaker 02: Yes, Your Honor. [00:58:08] Speaker 02: And apologies. [00:58:09] Speaker 02: I have a footnote posted that my colleagues have referred me to, and I've checked a couple of them. [00:58:15] Speaker 02: But I want to be fair and be accurate. [00:58:19] Speaker 02: The NORCO reports are strip charts. [00:58:22] Speaker 02: They're the type of strip chart in example one. [00:58:24] Speaker 02: There's no dispute. [00:58:25] Speaker 02: I have a number of citations to tell you about the inaccuracy of strip charts, of which NORCO is the type. [00:58:31] Speaker 02: I can't tell, Your Honor. [00:58:32] Speaker 02: standing here today from the record, specific citations on NORCO. [00:58:36] Speaker 02: So I will give you the citations. [00:58:39] Speaker 02: They will tell you how strip charts are inaccurate, give you false positives, give you false negatives. [00:58:42] Speaker 01: It was no question that the prior art strip charts had some accuracy problems, but that's not the issue. [00:58:48] Speaker 02: Respectfully, I think if you say this category, this way of displaying, this way of processing and displaying information [00:58:56] Speaker 02: has problems and NORCO is one example of those. [00:58:59] Speaker 04: The problem is those issues could be coming from two different things. [00:59:03] Speaker 04: They could be coming from the fact that the prior ARP systems detection sensors are not good enough and you're getting problems because the data is bad and your data sensors and your programs and whatever you do are better at getting accurate data and where the bins are or what you've done is [00:59:25] Speaker 04: take that data somehow and transform it in a way in the non-strip chart parts that make it a better representation. [00:59:33] Speaker 04: And I think in fairness, you're, I think, relying on the second argument, not the first. [00:59:38] Speaker 04: Because if the data is the same in both instances, in NORCO and the patent invention, [00:59:45] Speaker 04: then it either has the same problems or it doesn't have the same problems. [00:59:48] Speaker 02: I think, Your Honor, respectfully, Your Honor, I think it comes down to this, and I think this is kind of... I think there's three possibilities here. [00:59:54] Speaker 01: One, it's the same data. [00:59:55] Speaker 01: And I don't think you dispute that it's the same data, as I understand it. [01:00:00] Speaker 01: Second of all, is all the data used so that it achieves the same level of accuracy? [01:00:06] Speaker 01: And the third one, is it easy to use? [01:00:09] Speaker 01: And I think we keep stumbling about the second one here. [01:00:14] Speaker 01: I'm not seeing anything that says that the NORCO charts don't give you the same level of accuracy as the charts displayed graphically. [01:00:27] Speaker 02: Let me read something into the record and then answer your question in connection with it. [01:00:31] Speaker 02: And I'll give you the following citations, Your Honors. [01:00:33] Speaker 02: A14230 through 32. [01:00:36] Speaker 02: And that would be the primary one we would rely on. [01:00:39] Speaker 02: That is by one of the inventors. [01:00:41] Speaker 02: A 18756 through 58, that's by the experts. [01:00:46] Speaker 02: A 18745 by the experts. [01:00:48] Speaker 02: 19075 through 80 by a Chevron employee who said how much better this new system was for them. [01:00:56] Speaker 01: That's true, but what you need to show us is something where somebody says Norco suffers from the same problems as prior art because it's not completely accurate. [01:01:05] Speaker 02: And where I end up with that is twofold, Your Honor. [01:01:08] Speaker 02: And I have been handed a note that says there's some NORCO analysis of that at A18756 through 58. [01:01:20] Speaker 02: But here's where I come back to. [01:01:21] Speaker 02: There's two answers to your question, Judge Dyck, respectfully, and this is the best I can do. [01:01:25] Speaker 02: The first one is NORCO is just the use of the strip charts that these citations say were inaccurate and unreliable and hard to use. [01:01:34] Speaker 02: So do they say NORCO in those citations? [01:01:36] Speaker 02: I'm told that one of them does. [01:01:38] Speaker 02: But in any event, when you say these systems are no good and NORCO is just running that system, then I think you end up in the same place. [01:01:45] Speaker 02: But here's where the rubber hits the road on the whole thing. [01:01:49] Speaker 02: The claims before they were amended required displaying partition data. [01:01:53] Speaker 02: So the claims before they were amended said, show us which tube the defect is in. [01:01:59] Speaker 02: They already said that. [01:02:01] Speaker 02: And then they were amended afterwards to add an additional requirement that they were arranged to display the physical geometry [01:02:08] Speaker 02: of the stacked tube segments. [01:02:10] Speaker 02: That was a change that masked the bottom of column 11, which makes clear that whatever they are, strip charts are not arranged to represent the physical geometry of the furnace, no matter what. [01:02:20] Speaker 01: I think we're out of time. [01:02:21] Speaker 02: OK, thank you, Your Honor. [01:02:22] Speaker 01: Appreciate your time, Your Honor. [01:02:24] Speaker 02: Thank you very much, Your Honor.