[00:00:00] Speaker 03:
We have four arguments this morning, and the first is number 182073, slot speaker technologies against Apple.

[00:00:18] Speaker 01:
Thank you, Your Honor.

[00:00:18] Speaker 01:
It may please the court.

[00:00:20] Speaker 01:
There are two claimed terms at issue in this appeal.

[00:00:23] Speaker 01:
Sound reflecting surface is in both patents.

[00:00:26] Speaker 01:
Straight path, excuse me, is just in the 340 patent.

[00:00:31] Speaker 01:
Let me address sound reflecting surface first.

[00:00:36] Speaker 01:
The parties agreed on a construction.

[00:00:39] Speaker 01:
A non-resonant surface with low sound absorption, not made of sound damping material.

[00:00:45] Speaker 01:
The court, in further considering the construction, excised the word non-resonant from that construction and provided a definition that is inconsistent with claim language.

[00:00:57] Speaker 01:
The rest of the construction, the specification and expert testimony, nothing.

[00:01:03] Speaker 03:
to state, I think, what is the obvious, but consistent with the explanation you provided in your opening Markman brief about what non-resident meant.

[00:01:14] Speaker 03:
That might not be enough, but he did take that language from your explanation, right?

[00:01:18] Speaker 01:
That is what the Court said, but that is incorrect, Your Honor.

[00:01:21] Speaker 01:
When the Court said that SST defined

[00:01:26] Speaker 01:
non-resonant as avoiding materials that would resonate at audible frequencies, the court didn't consider the entirety of what SlotSpeaker said in the same sentence.

[00:01:39] Speaker 01:
What SST said in its claim construction brief is that it would avoid materials that would resonate at audible frequencies and thereby dissipate sound energy instead of reflecting it as a panel resonator.

[00:01:56] Speaker 01:
And what Slot Speaker was saying there was comparing the sound-reflecting material and the quality of the sound-reflecting material with a material that would absorb sound waves.

[00:02:10] Speaker 00:
I hear you for the second phrase of that sentence that you've just read to us.

[00:02:16] Speaker 00:
Well, what about the first phrase where it says, it would avoid materials?

[00:02:20] Speaker 00:
that would resonate at audible frequencies.

[00:02:23] Speaker 00:
You're saying that that has a different meaning when it has the thereby clause following it?

[00:02:28] Speaker 00:
Yes, when read in context.

[00:02:30] Speaker 01:
Because what that phrase is doing is comparing resonance with dissipation of sound energy.

[00:02:37] Speaker 01:
And that's entirely consistent with what the specification does.

[00:02:41] Speaker 01:
when it discusses sound-reflecting materials and contrasts them with sound-absorbing materials.

[00:02:47] Speaker 01:
The experts were clear, the specification is clear, there is a spectrum in materials, sound-reflecting materials and sound-absorbing materials, and they have qualities, they have properties.

[00:03:00] Speaker 01:
of sound reflection or sound absorption.

[00:03:03] Speaker 01:
But as the experts agreed, no material is perfect.

[00:03:07] Speaker 01:
No material has perfect sound reflection.

[00:03:10] Speaker 01:
No material has perfect sound absorption.

[00:03:13] Speaker 01:
So in explaining in its claim construction brief that it would avoid materials that would resonate and thereby dissipate sound energy.

[00:03:22] Speaker 02:
Is there any testimony or evidence that

[00:03:26] Speaker 02:
alleges that there's always got to be some amount of resonance at audible frequencies.

[00:03:33] Speaker 02:
No matter how you design the surface, no matter how thick it is, what materials you use, there's always, always, always, as a matter of science, going to be some amount of resonance at audible frequencies.

[00:03:49] Speaker 01:
Well, both Apple's expert and SST's expert agreed

[00:03:54] Speaker 01:
that no material is perfectly sound-reflecting, or it has perfect non-resonance.

[00:04:01] Speaker 02:
Right, but that leaves room for the possibility that whatever minor amount of resonance that could exist for any kind of surface, that could occur at inaudible frequencies rather than audible frequencies.

[00:04:16] Speaker 01:
If we go back to the claim language, the claims are directed to a narrow profile ground plane audio speaker system.

[00:04:24] Speaker 01:
So we have to look at the claims in that context.

[00:04:26] Speaker 01:
You have a sound reflecting surface in the context of an audio speaker system.

[00:04:31] Speaker 02:
Well, what I'm trying to figure out is you're trying to use some kind of principle.

[00:04:38] Speaker 02:
And you rely on power integrations for the idea that we have to understand how one of ordinary skill in the art would look at these words.

[00:04:45] Speaker 02:
And so even if it says,

[00:04:48] Speaker 02:
non-varying or even though it says non-resonant, well, engineers would understand that there's always going to be a tiny bit of resonance even if we refer to something as being non-resonant.

[00:05:01] Speaker 02:
And so now I'm trying to figure out, well, it appears to me that there's room in this record that there isn't an actual dispute between the experts as to whether

[00:05:18] Speaker 02:
any tiny amount of resonance has to occur in the audible frequency range.

[00:05:22] Speaker 02:
And that I didn't see in the record.

[00:05:26] Speaker 02:
What I saw from your expert were these broader notions that, well, what is going on with Apple's products isn't significant resonance, and so therefore it's non-resonant.

[00:05:40] Speaker 02:
And that's different to me than actually joining this very particular

[00:05:46] Speaker 02:
question that I'm concerned about, which is whether you have something in the record that says no matter how you design a particular reflecting surface, it's always got to have at least some amount of resonance within the audible frequency range.

[00:06:03] Speaker 02:
And so I don't see that in the record.

[00:06:06] Speaker 02:
If you point it to me, that would be helpful.

[00:06:08] Speaker 01:
Well, let me explain two particular points.

[00:06:11] Speaker 01:
One is let's go to the specification and how the specification describes these materials.

[00:06:16] Speaker 01:
The specification describes examples of the materials.

[00:06:19] Speaker 01:
And the specification also says that the sound reflecting surface is substantially non-resonant and that it's helpful in propagating acoustic waves generated by speakers while minimizing losses due to absorption.

[00:06:33] Speaker 01:
So the specification itself recognizes that there is

[00:06:38] Speaker 01:
There will not be perfect non-resonance in the context of the invention that's disclosed and claimed.

[00:06:43] Speaker 02:
I guess I was concerned about your reliance on the specifications description of a preferred embodiment being substantially non-resonant.

[00:06:53] Speaker 02:
And now you want us to convert the agreed upon claim construction of non-resonant to mean substantially non-resonant.

[00:07:01] Speaker 02:
And that's not what was agreed upon for being the actual construction of claims.

[00:07:07] Speaker 02:
It's like if the specification said, preferably the door is substantially closed, and then the claim says the door is closed, I don't think you get to rewrite the claim

[00:07:28] Speaker 02:
to read the doors closed to now be the doors merely substantially closed just because the specification says the term substantially closed.

[00:07:39] Speaker 01:
Well, Your Honor, here we're not even dealing with a claim term.

[00:07:42] Speaker 01:
The claim term is sound reflecting surface.

[00:07:44] Speaker 01:
What we're discussing is how to interpret a construction of that where the construction that was offered

[00:07:52] Speaker 01:
talked about non-resonance on the one hand and the properties of that.

[00:07:55] Speaker 02:
Well, that's the thing that's peculiar to me about this case is that you're forcing the district court to construe a construction that was agreed upon by the parties.

[00:08:08] Speaker 02:
If you were pressing an interpretation of the claim term into some kind of workable plain language that can be understood and applied potentially by a jury,

[00:08:22] Speaker 02:
And then you say, well, there's actually more technical interpreting that's got to go on beyond the actual words that you agreed upon.

[00:08:33] Speaker 02:
It feels like a shift in the argument.

[00:08:37] Speaker 02:
You're going from x to y to z, and it's a little bit confusing on whether you should be allowed to do that.

[00:08:45] Speaker 01:
Well, Your Honor, this issue came up during the summary judgment hearing, and the judge suggested that there might be confusion on non-resonant.

[00:08:53] Speaker 01:
In slot speaker's view, there is no further construction that was absolutely mandated.

[00:08:59] Speaker 01:
The construction was non-resonant surface with low sound absorption.

[00:09:03] Speaker 01:
Low sound absorption does not mean no sound absorption.

[00:09:07] Speaker 01:
And by taking out the word non-resonant and reconstruing it to say that it does not resonate at audible frequencies,

[00:09:15] Speaker 01:
The court has a new construction that is inconsistent with the old construction.

[00:09:21] Speaker 01:
The old construction, the original construction that we believe was clear and a jury could understand, the experts had no difficulty understanding it and applying it, said low sound absorption.

[00:09:33] Speaker 01:
Low doesn't mean no.

[00:09:35] Speaker 01:
And the new construction that the court- It doesn't non-mean no?

[00:09:38] Speaker 01:
not in the context of non-resonant with low sound absorption, not in the context of the experts agreeing that every material has some resonance, not in the context of a specification that says that the materials are substantially non-resonant in nature.

[00:09:55] Speaker 02:
Does every material, regardless of the materials used, the thickness of it, the design, always have to have a resonance that causes

[00:10:08] Speaker 02:
a two decibel level change that's audibly detectable?

[00:10:14] Speaker 01:
Not necessarily, but that isn't the question.

[00:10:16] Speaker 01:
In the context of this specification.

[00:10:18] Speaker 02:
Well, why wouldn't it be if, in this particular case, there's no dispute that Apple's phones with their metal plate is causing a two decibel level difference in the audible frequency range?

[00:10:35] Speaker 01:
Well, Your Honor, as to the facts, I believe that is disputed.

[00:10:39] Speaker 01:
And with respect to at least some of the products that were tested, there is less than a two decibel degree difference.

[00:10:45] Speaker 02:
With the point of the... Your expert didn't say that there's going to be a change of two decibels or a few decibels?

[00:10:54] Speaker 01:
He said a few decibels, considering them across the spectrum.

[00:10:57] Speaker 01:
As we show in our brief, there is an example of the comparison of

[00:11:01] Speaker 01:
the frequency responses where it is less than that.

[00:11:04] Speaker 03:
The point is... I think I know which figure you're talking about, and that might be true at the two peaks, but it's not true around 12 kilohertz down at the trough.

[00:11:21] Speaker 03:
Why is that not significant?

[00:11:22] Speaker 03:
There's quite a large gap there.

[00:11:24] Speaker 01:
Well, at 12 kilohertz, you're outside of the operative frequency band, which is up to 10 kilohertz.

[00:11:29] Speaker 03:
But within the audible range.

[00:11:31] Speaker 01:
You are within the audible range.

[00:11:33] Speaker 01:
But you are also looking at a preferential response to frequency, which the experts agreed happened at those peaks, and what the differences are at those peaks, and what addition, if any, the plate provides at those peak levels.

[00:11:50] Speaker 02:
Which graph are we talking about?

[00:11:51] Speaker 02:
Are we talking about something in your gray brief?

[00:12:00] Speaker 03:
I think it's in both places maybe at 23 of the blue brief.

[00:12:12] Speaker 03:
Is that the one?

[00:12:28] Speaker 03:
Yes, and 11 of your gray briefs, same figure.

[00:12:33] Speaker 01:
That's right.

[00:12:41] Speaker 03:
I guess it was not clear to me that Apple's argument was limited to the two peaks in the, I don't know, less than 10,000 range.

[00:12:59] Speaker 01:
Your Honor, across the variability and across the resonance response that was tested, there is clear expert testimony that the differences in frequency response between the duct and separating out the metal plate itself, that those were insignificant differences.

[00:13:18] Speaker 01:
There's substantial testimony from SST's expert that did this testing and separated out the resonance response of the metal plate

[00:13:28] Speaker 01:
versus the resonance response of the duct as a whole.

[00:13:32] Speaker 01:
This court's cases suggest that allowing variability in claim terms is acceptable when that is true in the context of the invention.

[00:13:42] Speaker 01:
The PPG case, the power integrations case, the ACUMED case, look at the context of the invention.

[00:13:48] Speaker 01:
The context here is sound waves and resonance when the evidence shows

[00:13:53] Speaker 01:
that testing the same speaker 10 times shows a variance in the frequency response.

[00:14:02] Speaker 01:
That variability is going to occur.

[00:14:05] Speaker 01:
That variability is consistent.

[00:14:08] Speaker 01:
And in some cases, more than the resonance that was tested and shown could be provided by the metal plate.

[00:14:19] Speaker 03:
trouble spot for me on this is that it seemed to me that a lot of the thematic force behind your suggestion that the district court, in modifying the claim construction, adopted a claim construction that cannot be met in the real world, would

[00:14:44] Speaker 03:
require no more than some amount of wiggle room, to use a highly non-technical term.

[00:14:54] Speaker 03:
But it's not clear to me why

[00:14:59] Speaker 03:
That is not fully satisfied by wiggle room that covers, that would exclude in non-resident, sound that the human ear can hear.

[00:15:12] Speaker 03:
So resonance causing a human perceptible sound.

[00:15:17] Speaker 03:
And if you put that together with what appears to be an undisputed facts that a two decibel change can be heard and that

[00:15:27] Speaker 03:
There are two decibel changes.

[00:15:29] Speaker 03:
Why does that not meet the broadest real world driven construction that's available?

[00:15:40] Speaker 03:
Whether or not Apple is satisfied with larger variances among its phones.

[00:15:49] Speaker 01:
The context of the specification, the context of this invention is an audio speaker.

[00:15:56] Speaker 01:
An audio speaker is going to produce sound in the audible sound range.

[00:16:01] Speaker 01:
It's going to have an acoustic sound range.

[00:16:04] Speaker 01:
So when this specification recognizes that in the context of audible signals, acoustic signals, that the sound-reflecting material is substantially non-resonant,

[00:16:16] Speaker 01:
and that there is a spectrum between completely reflecting and completely absorbing, and the sound reflecting surface falls closer to one side of that spectrum, but that there is no absolute, then the judge in construing or reconstruing the non-claim term non-resonant

[00:16:36] Speaker 01:
to be absolute in the context of this specification, in the context of this invention, where all you care about is what you can hear because it's a speaker, then that is an absolutist construction that's inconsistent with the claim language, and it's inconsistent with the specification.

[00:16:54] Speaker 01:
OK.

[00:16:55] Speaker 03:
Well, you have, at our behest, more than used your rebuttal time.

[00:17:00] Speaker 03:
We will restore it.

[00:17:01] Speaker 03:
Thank you.

[00:17:08] Speaker 04:
Mr. Fleming.

[00:17:09] Speaker 04:
Good morning, and may it please the court.

[00:17:11] Speaker 04:
Mark Fleming together with Jason Liss on behalf of Apple.

[00:17:14] Speaker 04:
I'd like to start by answering Judge Chen's first question, which I think really does, if anything, crystallize the issue here.

[00:17:20] Speaker 04:
And to summarize the question, if I may, I believe it was, is there any evidence that no matter how you make a surface, there's always going to be resonance at audible frequencies?

[00:17:29] Speaker 04:
And counsel very carefully did not say yes, because the answer is no.

[00:17:34] Speaker 04:
It is very clear from the record that you can make a surface that does not resonate at audible frequencies.

[00:17:40] Speaker 04:
Our engineer, Mr. Porter, says on 3179, it would not be a problem to design a plate that put those resonances outside of the audible band.

[00:17:48] Speaker 04:
On 3182, he says, I don't think there's any limitation in achieving the resonance being outside the audible band.

[00:17:54] Speaker 04:
Our expert, Dr. Kyriakakis, says the same thing on 3155 and 3696.

[00:17:59] Speaker 04:
And there is no controverting evidence on the other side, none whatsoever.

[00:18:03] Speaker 04:
This is an argument that they attempt to raise for the first time in the reply brief on pages five to seven.

[00:18:08] Speaker 04:
But if your honors look at the passages of the record that they actually cite, none of them addresses the supposed inoperability or impossibility of making a sound reflecting surface that resonates outside the audible range, not inside the audible range.

[00:18:22] Speaker 04:
That is what the claims cover.

[00:18:23] Speaker 04:
That is perfectly operable.

[00:18:24] Speaker 04:
It's just not what Apple does.

[00:18:26] Speaker 04:
Apple makes a conscious choice to have a thin stainless steel plate that does resonate at audible frequencies

[00:18:32] Speaker 04:
in order to make room for a more powerful speaker that will increase loudness.

[00:18:36] Speaker 02:
There was a point made briefly in counsel's argument that if the apple's metal plate was somehow thicker, I don't know, 20 times thicker, what would happen?

[00:18:47] Speaker 04:
I don't know whether 20 times is the amount, but I think that is going to be one of the factors that would move the resonances higher.

[00:18:54] Speaker 04:
So it would be not a dog might be able to hear it, but a human being could not.

[00:18:58] Speaker 04:
And that would move the resonance outside of the audible range,

[00:19:01] Speaker 04:
And that could be something that would be covered by this claim.

[00:19:05] Speaker 02:
So if, just so I understand, if the plate is extra thick, extra stiff, then it'll move the resonance frequency out of the audible range?

[00:19:21] Speaker 04:
Yes, that's exactly right, Your Honor.

[00:19:23] Speaker 04:
And that's what our experts said.

[00:19:24] Speaker 04:
That's what Mr. Porter, Apple's engineer, said.

[00:19:27] Speaker 04:
And there's nothing on the other side.

[00:19:28] Speaker 04:
Dr. Elliott never opined to this because the argument that SST was making both before the district court and in its blue brief before this court is that the construction somehow was inoperable because it precluded all residents, which is a strawman argument.

[00:19:41] Speaker 04:
We never argued that.

[00:19:42] Speaker 04:
The district court never held that.

[00:19:44] Speaker 04:
The construction has to do with whether it resonates inside the audible range.

[00:19:48] Speaker 04:
If it does, then it's not covered.

[00:19:50] Speaker 04:
If it doesn't and all residences are outside the audible range, then it can be covered, which is why the claims are fully operable.

[00:19:56] Speaker 04:
There was an assertion that SST somehow opposed the further construction.

[00:20:00] Speaker 04:
I just wanted to correct that.

[00:20:01] Speaker 04:
On page 42 of the blue brief, SST specifically says, quote, further construction was appropriate.

[00:20:07] Speaker 04:
The district court recognized there was a dispute among the parties as to the meaning of the construction.

[00:20:12] Speaker 04:
It asked both parties to present proposed further constructions, and the district court acted accordingly.

[00:20:18] Speaker 04:
There was nothing improper about that.

[00:20:20] Speaker 04:
As to the graph that counsel addressed with your honors,

[00:20:24] Speaker 04:
with respect to the delta between the two peaks.

[00:20:28] Speaker 04:
I'd point out that this is a brand new argument in the reply brief.

[00:20:32] Speaker 04:
It wasn't made to the district court.

[00:20:33] Speaker 04:
It certainly was not made in the blue brief.

[00:20:35] Speaker 04:
The blue brief was only making sense.

[00:20:36] Speaker 02:
The graph has always been part of the record.

[00:20:37] Speaker 04:
The graph has, Your Honor.

[00:20:39] Speaker 04:
The notion that the delta between the two peaks is somehow too small to be heard

[00:20:46] Speaker 04:
is something that comes up for the first time in the reply.

[00:20:50] Speaker 04:
The attorneys have blown up and annotated the chart on page 11 of the reply in a way that the expert never did.

[00:20:55] Speaker 04:
The argument that that could not be heard is both waived and unsupported.

[00:20:58] Speaker 04:
Are you saying all these red dotted lines is brand new?

[00:21:01] Speaker 04:
Correct, yes.

[00:21:03] Speaker 04:
Yes, it says annotations added just below it, I believe.

[00:21:06] Speaker 04:
And this is not an argument that was ever presented to the district judge and wasn't in the opening brief to this court.

[00:21:11] Speaker 04:
If it had been made.

[00:21:12] Speaker 02:
Well, the argument always was that

[00:21:14] Speaker 02:
What you see in this graph is evidence that the change is so de minimis that it's non-resonant.

[00:21:24] Speaker 02:
No.

[00:21:24] Speaker 04:
I think the argument was always there was never this distinction among the different types of iPhones.

[00:21:31] Speaker 04:
Dr. Elliott simply said, as across all of them, there is a resonance of a few decibels.

[00:21:35] Speaker 04:
He tried to downplay the importance of that, didn't deny that they were there, and that's what allowed the district court to find on page 12 of the opinion

[00:21:42] Speaker 04:
that the metal plate in the accused products resonates such that the audio output is affected and that that was undisputed.

[00:21:48] Speaker 04:
It's only now in the reply that they say, oh, wait a minute.

[00:21:50] Speaker 04:
This graph shows that, at least in one of these examples, maybe you can't hear it.

[00:21:54] Speaker 04:
That is not an argument ever made to the district court, and there's no expert testimony supporting it.

[00:21:59] Speaker 04:
Notably, had they made this argument in the district court or even in the opening brief, we would have pointed out that at higher frequencies, the human ear can hear differences of 0.25 decibels.

[00:22:08] Speaker 04:
That's from the very same

[00:22:09] Speaker 04:
master handbook of acoustics that the parties have been talking about.

[00:22:13] Speaker 04:
It's not in the record because they never made this argument until the reply brief in this court, which is why those kinds of arguments are typically not counted.

[00:22:19] Speaker 03:
And when you say higher frequencies, you're talking about numbers like what these two peaks are on that newly annotated graph.

[00:22:31] Speaker 04:
I mean, we are now well into the realm of attorney argument, Your Honor.

[00:22:34] Speaker 04:
There's no expert testimony on this.

[00:22:36] Speaker 04:
No, I think that is right.

[00:22:37] Speaker 04:
That when you get to the higher edge of the range the human ear can hear, which is up towards, I mean, I think the limit, depending on age, is something like 16 or 17 kilohertz.

[00:22:46] Speaker 04:
It's coming up to that range.

[00:22:49] Speaker 04:
Unless the Court has any further questions, we respectfully submit the judgment in this case should be affirmed.

[00:23:07] Speaker 01:
Thank you your honor.

[00:23:09] Speaker 01:
Apple's expert recognized when talking in the tutorial telling the district court judge what the patents were about that in the context of this invention a perfect reflector or a perfect resonator is quite unattainable.

[00:23:23] Speaker 01:
That's at appendix 1109 paragraph 67.

[00:23:26] Speaker 01:
Apple's expert recognized in the context of the invention that the specific materials in the patent

[00:23:34] Speaker 01:
Understood to be sound reflecting in the art its appendix 1095 at paragraph 35 Apples expert also said the patents recognize the practical realities of materials consistently distinguishing sound damping materials from sound reflecting surfaces and provide examples of materials that exhibit properties of

[00:23:58] Speaker 01:
associated with damping, and conversely, properties associated with reflecting.

[00:24:04] Speaker 01:
The original construction by the court recognized those differences, and the construction should recognize the practical realities of materials, that a perfect reflector or a perfect resonator is quite unattainable in the context of this invention.

[00:24:22] Speaker 02:
Do you agree that it's possible to make a material thick enough so that it becomes stiff enough so that the resonance frequency is above and beyond audible frequencies?

[00:24:34] Speaker 01:
That's consistent with additional testimony from Apple's witness Scott Porter, who counsel referred to.

[00:24:41] Speaker 02:
Well, I thought your expert also had the formula that shows that.

[00:24:46] Speaker 01:
I want to follow on what Mr. Porter said.

[00:24:49] Speaker 01:
He testified that moving the resonance outside the audible range would be catastrophic to the speaker performance.

[00:24:57] Speaker 01:
So at least Apple, in considering this resonance issue, said it would be impossible.

[00:25:03] Speaker 01:
It would be impossible to do it.

[00:25:05] Speaker 01:
So resonance as a practical reality of materials in the context of this invention is something that is expected and understood.

[00:25:14] Speaker 03:
Where is that Porter testimony?

[00:25:16] Speaker 03:
You were just with the word catastrophic or some equivalent.

[00:25:22] Speaker 01:
It is catastrophic, Your Honor.

[00:25:23] Speaker 01:
It's at appendix 3182, lines 5 through 14.

[00:25:49] Speaker 01:
Thank you.

[00:26:02] Speaker 01:
So while the witness does testify, you can achieve that ban.

[00:26:06] Speaker 01:
He also says it would be catastrophic.

[00:26:08] Speaker 01:
You cannot do it in the context of what is disclosed and claimed in this patent.

[00:26:13] Speaker 00:
Do you have a response to the argument that

[00:26:16] Speaker 01:
You didn't separately argue about the different apple accused products until the reply brief If I understand the question your honor with respect to pointing out the two decibel difference And not making that argument until our reply brief the reason that is is because apple in its brief is

[00:26:39] Speaker 01:
cited non-record evidence at page 16, footnote 3, where Apple said in order to be audible, there needed to be two decibels of sound.

[00:26:52] Speaker 01:
And we responded to the argument Apple made in its brief by pointing out that in the comparison that we show in our gray brief, that there is less than two decibels of difference.

[00:27:03] Speaker 01:
So to the extent that the judge's construction on audible means audible to the human ear,

[00:27:10] Speaker 01:
There is evidence showing that at least some of the products have less of a frequency difference than that.

[00:27:17] Speaker 02:
I guess the district court summary judgment order on the final page said there's no dispute among the parties that the amount of change of decibel level due to the apple plate is something that's audibly detectable.

[00:27:33] Speaker 02:
The district court said that, right?

[00:27:36] Speaker 01:
The district court did say that.

[00:27:38] Speaker 01:
Yes, the district court did.

[00:27:40] Speaker 01:
And we responded to Apple's argument made for the first time in appeal in its brief that there needs to be a two decibel difference in order for something to be audible to the human hear.

[00:27:51] Speaker 01:
So we responded to that hear by pointing out that that is not so.

[00:27:58] Speaker 01:
There are no further questions.

[00:27:59] Speaker 01:
Thank you, Your Honor.

[00:27:59] Speaker 00:
Thank you.