[00:00:00] Speaker 01:
Mr. Grochoczynski.

[00:00:03] Speaker 01:
Yes, Your Honor.

[00:00:06] Speaker 01:
And proceed.

[00:00:07] Speaker 01:
Thank you.

[00:00:08] Speaker 00:
Thank you, Your Honor.

[00:00:10] Speaker 00:
May it please the court.

[00:00:12] Speaker 00:
Your Honor, the district court's claim construction ruling in this case consistently used a dictionary-first approach that focused on the extrinsic evidence rather than the extrinsic evidence.

[00:00:24] Speaker 06:
Mr. Grochoczynski?

[00:00:25] Speaker 06:
Mr. Grochoczynski, this is Judge Shen.

[00:00:27] Speaker 06:
Just a couple quick questions.

[00:00:29] Speaker 06:
housekeeping questions.

[00:00:30] Speaker 06:
First of all, is it true that if this court affirms the district court's construction of either emulsion or oxygen-dissolving substance, then we affirm the final judgment?

[00:00:50] Speaker 01:
That is correct, Your Honor.

[00:00:52] Speaker 06:
Okay.

[00:00:53] Speaker 06:
And I just also wanted to confirm

[00:00:56] Speaker 06:
The patent here, the 225 patent, did it expire already?

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

[00:01:03] Speaker 06:
Okay.

[00:01:03] Speaker 06:
Are there any other litigations involved with the 225?

[00:01:08] Speaker 00:
There are not, Your Honor.

[00:01:10] Speaker 06:
Okay.

[00:01:11] Speaker 06:
Thank you.

[00:01:11] Speaker 06:
Please go ahead with your argument.

[00:01:14] Speaker 00:
Thank you, Your Honor.

[00:01:17] Speaker 00:
So the district court's claim construction ruling focused on the extrinsic rather than intrinsic evidence.

[00:01:22] Speaker 00:
And this is perhaps most evident and notable with respect to its construction of the term emulsion.

[00:01:28] Speaker 00:
And so with respect to that term, your honors, the district court adopted a claim construction for that term that is directly contradicted by the plain language of the claims.

[00:01:38] Speaker 00:
And it did so by focusing on dictionaries rather than on the intrinsic evidence.

[00:01:44] Speaker 00:
The same is true with respect to the term oxygen dissolving substance.

[00:01:48] Speaker 00:
The district court ignored clear and unequivocal disclaimer and instead decided to focus on testimony from DEXCOM's experts, experts together.

[00:01:59] Speaker 00:
Now, Your Honors, with respect to the first term, I just spoke about emulsion.

[00:02:03] Speaker 05:
This is just Toronto.

[00:02:04] Speaker 05:
Can I just ask you to actually take these in the reverse order?

[00:02:12] Speaker 05:
On oxygen dissolving, the oxygen dissolving term,

[00:02:18] Speaker 05:
As I understand it, well first of all, do you dispute here that the solubility of oxygen in the bodily fluids, the non-circulatory system, non-blood bodily fluids are essentially water?

[00:02:45] Speaker 00:
I'm sorry, Your Honor.

[00:02:46] Speaker 00:
I want to make sure I understand your question before I answer it.

[00:02:49] Speaker 00:
Would you mind just saying it one more time?

[00:02:51] Speaker 00:
It cut off for a second there.

[00:02:53] Speaker 05:
Sure.

[00:02:53] Speaker 05:
So this term, the district court said that your proposal that the solubility need only be greater than graphite and a few other things which are extremely low is wrong and also said

[00:03:13] Speaker 05:
that the right benchmark for the solubility term is water and as part of that relied on the notion that the bodily fluids where this device will abut are not blood but other bodily fluids and that those bodily fluids are essentially water-like.

[00:03:43] Speaker 05:
in solubility of oxygen.

[00:03:46] Speaker 05:
Is that last factual premise that I'm asking you initially, do you dispute that factual premise about the solubility of oxygen in those bodily fluids being awfully close to the solubility of oxygen in water?

[00:04:05] Speaker 00:
I think generally, Your Honor, we agree in that accurate.

[00:04:10] Speaker 00:
I think though that the district court's construction still suffers from the flaws that we spoke to in the briefing.

[00:04:19] Speaker 00:
Okay.

[00:04:21] Speaker 00:
Um, and so as your honor requested, focusing on the term oxygen dissolving substance first, from our perspective, your honor, there's two issues with this.

[00:04:31] Speaker 00:
One is the complete failure to even acknowledge the prosecution history or statements made during it, including the disclaiming statements by Dr. Clark.

[00:04:41] Speaker 00:
And the second one is considering it only in terms of solubility and ignoring permeability.

[00:04:47] Speaker 00:
And so you use the term benchmark, Your Honor, and I agree with you.

[00:04:52] Speaker 00:
That's what this dispute was about.

[00:04:54] Speaker 00:
What is the benchmark and how are we going to define it?

[00:04:58] Speaker 06:
Mr. Grochowski, this is Judge Chen again.

[00:05:00] Speaker 06:
Do you happen to know which substance has a higher oxygen solubility?

[00:05:07] Speaker 06:
Is it water or is it things like

[00:05:11] Speaker 06:
Graphite and polyethylene that were itemized during the prosecution history It is water your honor.

[00:05:18] Speaker 06:
Okay, and and so I guess you want the term oxygen dissolving substance to Capture a wider range of substances because yes, you polyethylene and graphite and things like that Have a lower decidedly lower

[00:05:41] Speaker 06:
oxygen solubility and then something like water.

[00:05:45] Speaker 06:
Or bodily improvement for that matter.

[00:05:47] Speaker 06:
Okay.

[00:05:48] Speaker 06:
All right.

[00:05:48] Speaker 06:
Thanks.

[00:05:50] Speaker 00:
Yes, Your Honor.

[00:05:52] Speaker 00:
And so our position is that this disclaiming statement that was made to distinguish the Wilkins reference in accordance with this court's precedent in Omega and its subsequent rulings has to be part of the claim construction.

[00:06:06] Speaker 00:
This fight was over what is the benchmark that this oxygen dissolving substance is going to be compared to.

[00:06:13] Speaker 00:
During prosecution, in distinguishing Wilkins, Dr. Clark explicitly gave us that benchmark.

[00:06:19] Speaker 00:
He says that graphite, nylon, polyethylene, or polystyrene are not oxygen dissolving substances.

[00:06:26] Speaker 00:
And he says it's because they don't have high enough oxygen solubility.

[00:06:32] Speaker 00:
There is nowhere in the intrinsic evidence

[00:06:34] Speaker 00:
And Dexcom hasn't pointed to anything where the benchmark is set as water.

[00:06:40] Speaker 00:
Dr. Clark, who is renowned widely as the father of the biosensor, could have obviously set the benchmark using water.

[00:06:48] Speaker 00:
He could have distinguished Wilkins on that basis.

[00:06:50] Speaker 00:
And it would have been a much simpler, more straightforward path.

[00:06:54] Speaker 00:
Because Judge Chen, as you just pointed out, water has a higher solubility.

[00:07:00] Speaker 00:
So it would have been even easier to distinguish Wilkins.

[00:07:03] Speaker 00:
What he did, he made a conscious decision to limit it to the four substances that are identified in our proposal.

[00:07:10] Speaker 05:
Can I just say, this is, this is, this is Judge Toronto.

[00:07:13] Speaker 05:
Can I, can I ask you, can I, I'm troubled, I guess, about how much is being made of the prosecution history.

[00:07:21] Speaker 05:
Suppose you had a patent in which the, the claim uses some term and the spec says the amount of that has to be greater than seven.

[00:07:31] Speaker 05:
And then during prosecution, the examiner points to, you know, Prior Art Smith and the applicant says, oh, no, no, no, Smith has only one.

[00:07:45] Speaker 05:
We're higher than that.

[00:07:47] Speaker 05:
That would not redefine or disclaim or set a new benchmark of one if the other evidence made clear it had to be at least seven.

[00:07:58] Speaker 05:
And that's what I think.

[00:08:01] Speaker 05:
So why is water not the seven and one the graphite here?

[00:08:05] Speaker 05:
And then the question is, why doesn't water remain the benchmark?

[00:08:12] Speaker 00:
Well, your honor, because there's nothing in the intrinsic evidence that says the amount, using your example, has to be greater than seven.

[00:08:20] Speaker 00:
That's just absence.

[00:08:22] Speaker 00:
And this is a fiction that was created by Dexcom's expert, the extrinsic expert testimony.

[00:08:29] Speaker 00:
And it was bought into by the district court.

[00:08:31] Speaker 06:
And so what our... What about the passages in this written description?

[00:08:38] Speaker 06:
For example, one is at column 10 around line 30, describing water as an example of a poor oxygen carrier.

[00:08:48] Speaker 06:
And then the other passage at column 13, where at the very top of column 13, it says an advantage is that steroids like

[00:09:01] Speaker 06:
perfluorocarbons are much better at dissolving oxygen than is water.

[00:09:07] Speaker 06:
And so the inference to take away from all of this is that the patent drafter is criticizing water in terms of its capacity to be a good oxygen carrier as something that oxygen can dissolve in.

[00:09:26] Speaker 06:
And the entire purpose of the patent is to have

[00:09:31] Speaker 06:
emulsified with the enzyme some kind of substance, any kind of substance that is a very, very, very good oxygen carrier, something with a very high oxygen solubility.

[00:09:43] Speaker 06:
And when you add that all up, we should take away from the written description that the patent has essentially disclaimed the idea that water should be thought of as an oxygen dissolving substance.

[00:10:02] Speaker 00:
Your Honor, in response to that, I say as follows.

[00:10:06] Speaker 00:
I think it is completely improper to impart disclaimer based on two limited, extremely limited excerpts that do not clearly and unequivocally compare the oxygen dissolving substance's solubility to water.

[00:10:23] Speaker 00:
I agree with you, Your Honor, that in those two limited excerpts, there is a discussion about water.

[00:10:28] Speaker 00:
However,

[00:10:29] Speaker 00:
My understanding of this court's claim construction jurisprudence is that it is improper based on two limited statements about a preferred embodiment to then equate those to disclaimer and impart limitations in the claim.

[00:10:46] Speaker 00:
In contrast, in the prosecution history, you have a clear and unequivocal statement as to what actually qualifies as an oxygen dissolving substance, and it's being defined in relation to

[00:10:58] Speaker 00:
for different substances, not water.

[00:11:02] Speaker 00:
And so to me, Your Honor, this is a question of the proper framework for claim construction and the weight that should be afforded to limited exertion about a preferred embodiment in a specification versus a clear statement made during prosecution history to secure the patent in CEDA.

[00:11:23] Speaker 02:
Council, your rebuttal time.

[00:11:26] Speaker 00:
Yes, Your Honor.

[00:11:27] Speaker 00:
I will reserve the remainder time for rebuttal unless there are any additional questions at this time.

[00:11:31] Speaker 01:
Can we hear from the other side, please?

[00:11:50] Speaker 04:
Thank you, Your Honor.

[00:11:51] Speaker 04:
This is Rick Malloy.

[00:11:52] Speaker 04:
May I proceed?

[00:11:53] Speaker 01:
Yes, Mr. Malloy, please.

[00:11:55] Speaker 04:
Thank you.

[00:11:55] Speaker 04:
And may it please the court, Rick Malloy on behalf of DEXCOM.

[00:11:59] Speaker 04:
The judgment in favor of DEXCOM should be affirmed.

[00:12:02] Speaker 04:
Each of the two terms identified in the judgment, oxygen dissolving substance and emulsion, provide an independent basis for a finding of no infringement here.

[00:12:12] Speaker 04:
And our metrics must prevail on both terms to obtain a remand.

[00:12:16] Speaker 04:
the district court's construction of both of these terms as well as the other terms.

[00:12:20] Speaker 05:
Can you start with the oxygen dissolving substance one?

[00:12:28] Speaker 05:
Why does water set the benchmark for the solubility?

[00:12:34] Speaker 04:
Yes, Your Honor.

[00:12:35] Speaker 04:
The 225 patent states that the claimed oxygen dissolving substance is one where oxygen is extremely soluble.

[00:12:43] Speaker 04:
And having a substance where oxygen is extremely soluble is critical to the invention in order to address the glucose-oxygen imbalance problem that's described in the patent.

[00:12:54] Speaker 04:
That problem is that in bodily fluids where these sensors are placed, there is a very low ratio of oxygen to glucose.

[00:13:03] Speaker 04:
The patent indicates that at the surface of the electrode, it's approximately, it can be as high as 100 to 1.

[00:13:10] Speaker 04:
Right, so there's a lot of wasted glucose that's not counted, right?

[00:13:14] Speaker 04:
That's right.

[00:13:16] Speaker 04:
Essentially, Your Honor, the oxygen is rate limiting.

[00:13:19] Speaker 04:
And in order to ensure that you're achieving an accurate glucose measurement, you need to provide enough oxygen to ensure that that reaction is accurately measuring the amount of glucose instead of just the very low amount of oxygen.

[00:13:34] Speaker 04:
Now, the specification and the prosecution history both states that the issue being addressed is that poor solubility of oxygen in biological fluids, which the court I noted consists essentially of water, and that's also in the record at Appendix 2407.

[00:13:50] Speaker 04:
And the solution is providing an emulsion with that oxygen dissolving substance, where oxygen is extremely soluble or preferentially soluble in order to provide more oxygen.

[00:14:03] Speaker 04:
And both the specification at columns 13, line 2 through 4, and the file history at appendix 3482 do use water as a comparison.

[00:14:14] Speaker 04:
And the patent and the file history also refer to bodily fluids.

[00:14:18] Speaker 04:
But they use water to describe the benefits of that oxygen dissolving substance.

[00:14:23] Speaker 04:
Now, our metrics position here that the oxygen dissolving substance can be graphite or certain polymers

[00:14:30] Speaker 04:
that are barely, if at all, oxygen soluble or have very low oxygen solubility would undermine the fundamental purpose of the invention, which is to use that oxygen-dissolving substance to address the glucose-oxygen imbalance.

[00:14:47] Speaker 04:
If the oxygen-dissolving substance can have an even lower oxygen solubility than water or biological fluids where oxygen is already poorly soluble,

[00:14:57] Speaker 04:
then one would be better off just leaving water or bodily fluids in the emulsion rather than replacing it with substances that have an even lower oxygen solubility.

[00:15:08] Speaker 04:
And that's why the 225 patent consistently compares the properties of the oxygen dissolving substance to that of water or other biological fluids.

[00:15:18] Speaker 04:
Adding a substance with a lower oxygen solubility would actually defeat the purpose of the invention by exacerbating the glucose oxygen problem.

[00:15:26] Speaker 05:
Can I just ask you maybe to talk about the emulsion issue, although your opposite number didn't get much of a chance to talk about that.

[00:15:39] Speaker 05:
The challenge for you is Claim 5.

[00:15:42] Speaker 05:
Explain how you properly get around that challenge.

[00:15:47] Speaker 04:
Yes, Your Honor.

[00:15:48] Speaker 04:
So Claim 5 refers to solids and steroids.

[00:15:51] Speaker 04:
but doesn't support deviating from the customary meaning of emulsion for at least two reasons.

[00:15:57] Speaker 04:
First, the specification indicates that the reference to solids in claim five is referring to solids that are first dissolved in solution.

[00:16:05] Speaker 04:
In other words, things that are liquids before they're emulsified.

[00:16:09] Speaker 04:
And the specification provides some examples of that.

[00:16:12] Speaker 04:
For example, at column five, lines 25 through 29, it explains that the enzyme, which is typically a solid as well,

[00:16:20] Speaker 04:
in the emulsion is dissolved into an aqueous solution before being emulsified.

[00:16:26] Speaker 06:
Is there any example in the written description of the oxygen dissolving substance being initially a solid that then dissolves into the liquid-liquid emulsion?

[00:16:41] Speaker 04:
There is, Your Honor.

[00:16:42] Speaker 04:
At column 12, lines 63 through 67,

[00:16:46] Speaker 04:
The patent describes what the patent refers to as an oxygen dissolving substance.

[00:16:51] Speaker 04:
Steroids, which are also referred to there in claim five, being used in the emulsion concentrations in solution at about 0.1 to 1.0 percent by weight and indicates that the steroids gradually dissolve in the aqueous phase of the enzyme mixture.

[00:17:10] Speaker 04:
So the specification actually refers to both components of the emulsion.

[00:17:16] Speaker 06:
What about the passage towards the bottom of column eight, particularly the sentence starting at line 56 that says, quote, essentially, tiny solid or liquid particles of material that readily dissolve oxygen are held in intimate contact with an oxygen utilizing enzyme, which is preferably in an insoluble form,

[00:17:40] Speaker 06:
And then it goes on in the next paragraph, the action of this emulsified oxygen carrier is twofold.

[00:17:48] Speaker 06:
And I take away from that the idea that the oxygen carrier is being described as having been emulsified with the enzyme.

[00:18:03] Speaker 06:
And as such, it is in the form of tiny solid or liquid particles.

[00:18:09] Speaker 06:
in intimate contact with that enzyme.

[00:18:12] Speaker 06:
So it feels like, I know this is, it might conflict with the ordinary understanding of the word emulsion, but here the patent seems to be contemplating that we have an emulsion of tiny solid particles of the oxygen carrying substance with the

[00:18:39] Speaker 06:
liquid enzyme.

[00:18:41] Speaker 04:
Is it my misreading these sentences here?

[00:18:45] Speaker 04:
Your Honor, you're not misreading it in the sense that you're correct that the oxygen dissolving substance has certainly been emulsified at that point.

[00:18:52] Speaker 04:
But what that portion of the specification around line 59 also indicates is that it's now been insolubilized as well.

[00:19:00] Speaker 04:
And that's consistent with the claim language that refers to adding the cross-linker to then form the insolubilized gel.

[00:19:08] Speaker 04:
which is different than the emulsion.

[00:19:10] Speaker 04:
And that's the same thing that's being referred to in that paragraph, which you can see by the language talking about the enzyme, which is then preferably in an insoluble form.

[00:19:20] Speaker 04:
So at that point, the cross-linker has been added, and the emulsion has been essentially insoluble-ized into a gel.

[00:19:28] Speaker 06:
Well, when we go back to claim one, it talks about a sensor comprising two

[00:19:39] Speaker 06:
elements, a conductive electrode and a stabilized enzyme emulsion.

[00:19:45] Speaker 06:
And then that emulsion comprises three components, the enzyme, the oxygen dissolving substance, and the protein cross-linking agent, which forms a stabilized gel.

[00:20:00] Speaker 06:
So to me, just reading the claim on its face, it seems to be equating

[00:20:06] Speaker 06:
the claimed emulsion with the stabilized gel.

[00:20:10] Speaker 06:
And the stabilized gel is made and emulsion, interchangeably those words, are made of three things, enzyme, oxygen-dissolving substance, and cross-leaking agent.

[00:20:21] Speaker 06:
So that seems to be entirely consistent with what's being described here at the bottom of column 8, which supports the idea that of column 5's reference to solids as

[00:20:36] Speaker 06:
having an oxygen-dissolving substance can be made of tiny, solid particles, and whether that's at the beginning as a starting material or in the final finished product.

[00:20:49] Speaker 04:
Your Honor, it is consistent with what we were seeing in Column 8, but the key language in Claim 1 is the term forming.

[00:20:57] Speaker 04:
So the emulsion isn't insolubilized or stabilized until the cross-linker is added,

[00:21:03] Speaker 04:
And at that point, it then forms the stabilized gel, which consists of and comprised of the cross-linked protein and then particles of the oxygen.

[00:21:12] Speaker 06:
Are you saying I'm misreading the claim when I read the claim is requiring the cross-linking agent to be part of the emulsion?

[00:21:22] Speaker 04:
I think the cross-linking agent is part of the emulsion, Your Honor, when it's added to the emulsion.

[00:21:27] Speaker 04:
However,

[00:21:27] Speaker 04:
when the crosslinker is added.

[00:21:30] Speaker 04:
According to this claim, there is no emulsion until you add the crosslinking agent.

[00:21:36] Speaker 04:
Well, that's true, Your Honor, and then once you add the crosslinking agent, there's that temporal limitation in there that it provides for forming the insoluble, the stabilized gel.

[00:21:45] Speaker 04:
So in other words,

[00:21:46] Speaker 04:
The emulsion consists of those and is comprised of those three substances, the liquids, and then once the cross-linker is added, it becomes something different, the stabilized gel.

[00:21:58] Speaker 04:
And everybody in this case, the experts, acknowledge that a gel is different than an emulsion and that persons of ordinary skill understand that those things are different.

[00:22:09] Speaker 04:
Outside the context of this patent, I agree.

[00:22:14] Speaker 04:
Well, Your Honor, this patent also does describe emulsions as being two liquids throughout.

[00:22:19] Speaker 04:
Each and every example of the emulsion that's set forth in the patent includes the aqueous enzyme and then some other liquid form.

[00:22:28] Speaker 04:
And then we get to the tiny solid particles at the bottom of column A. Yes, and that's true after the enzyme emulsion is insolubilized and the gel is formed.

[00:22:50] Speaker 04:
In short, Your Honor, our view is that consistent with Forner and other authorities, the references in the specification there are not inconsistent with the plain and ordinary meaning of the term emulsion.

[00:23:07] Speaker 06:
Is it your understanding that the reference to steroids at the bottom of column 12 that you initially were referring us to, that steroid is

[00:23:18] Speaker 06:
being used as an oxygen dissolver there?

[00:23:22] Speaker 04:
Because that's not the way I understood it.

[00:23:25] Speaker 04:
Are you saying it is?

[00:23:27] Speaker 04:
Yep.

[00:23:27] Speaker 04:
So the steroid, Your Honor, that they're describing there is actually used as an anti-inflammatory, which can be added.

[00:23:34] Speaker 06:
But steroids are... So it's not the oxygen-dissolving substance.

[00:23:37] Speaker 06:
Is that right?

[00:23:38] Speaker 04:
No, steroids, Your Honor, are described throughout the patent as an oxygen-dissolving substance.

[00:23:42] Speaker 06:
No, I'm talking about it in that I'm talking about the discussion you cited us to at the bottom of column 12.

[00:23:48] Speaker 06:
When it talks about a steroid there, is it talking about a steroid in the context of serving as the oxygen-dissolving substance?

[00:23:58] Speaker 06:
Just give me a yes or no answer, please.

[00:24:01] Speaker 04:
Your Honor, it's talking about the steroid as an anti-inflammatory.

[00:24:05] Speaker 06:
So is the answer no?

[00:24:07] Speaker 04:
Well, I don't think it's not an oxygen-dissolving substance there.

[00:24:12] Speaker 06:
But in the context of this particular paragraph, this particular part of the written description,

[00:24:18] Speaker 06:
when the patent is talking about a steroid, is it talking about it as an oxygen-dissolving substance?

[00:24:28] Speaker 04:
Well, Your Honor, at Column 13, if you look to the end of the paragraph, it says that an advantage is that steroids like perfluorocarbons are much better at dissolving oxygen than is water.

[00:24:38] Speaker 04:
So I think the patent's acknowledging that even though it's describing steroids there in the context of adding this additional anti-inflammatory agent,

[00:24:46] Speaker 04:
that the steroid is acting as an oxygen dissolving substance.

[00:25:03] Speaker 04:
And in addition to the specification, Your Honor, the prosecution history here does reflect the plain meaning of the term emulsion.

[00:25:12] Speaker 04:
During prosecution, the applicant used the term droplets

[00:25:15] Speaker 04:
to describe the emulsion and its components and to distinguish the prior art where glucose oxidase was bonded to a solid component, which is another strong indicator that the customary meaning of emulsion, a liquid dispersed within a liquid, is used here in the claims.

[00:25:43] Speaker 04:
If the court has any additional questions for me on either oxygen dissolving substance or emulsion, I'm more than happy to answer them, or I'm also happy to address any of the other terms if the court has questions.

[00:25:58] Speaker 01:
There don't appear to be any more.

[00:26:03] Speaker 01:
Brethren have any?

[00:26:05] Speaker 05:
No, nothing for me.

[00:26:06] Speaker 05:
Thank you.

[00:26:07] Speaker 04:
Thank you, Your Honor, for your time.

[00:26:08] Speaker 04:
I just ask that the court affirm the claim constructions and affirm the judgment in favor of DEXCOM.

[00:26:15] Speaker 01:
OK.

[00:26:18] Speaker 01:
We have any response?

[00:26:22] Speaker 00:
Yes, Your Honors.

[00:26:22] Speaker 00:
Tim Grotjesinski, thank you.

[00:26:25] Speaker 00:
Your Honor, a lot of turning to the first term, oxygen dissolving substance, a lot of the statements about critical to the invention or the purpose are parroting DEXCOM's expert

[00:26:37] Speaker 00:
rather than once again focusing on the intrinsic evidence.

[00:26:40] Speaker 00:
But setting that aside for a minute, the discussion that we've all been having about the ability to oxygen-dissolving substance and whether or not it should be compared to water or not, none of that accounts for permeability.

[00:26:57] Speaker 00:
And so even if there are similarities, that does not address the permeability.

[00:27:03] Speaker 00:
And so one of the other issues that we have with that construction, your honor, by the district court is that it explicitly found, and this is a quote from the district court's claim construction order at a P P X 22.

[00:27:15] Speaker 00:
The district court found that permeability has no place in the construction of this term.

[00:27:23] Speaker 00:
And that is at lines seven to eight from that page at lines 22 to 23, same page, same term.

[00:27:31] Speaker 00:
the district court in support of its holding relies on excerpts from the intrinsic evidence that explicitly are discussing permeability, not solubility.

[00:27:43] Speaker 00:
And so why should we be not limiting this to water or using that as the benchmark?

[00:27:47] Speaker 00:
Well, because that does not take into account, Your Honor, the permeability of the oxygen-desolving substance, which the intrinsic evidence, including the district court's own claim construction ruling,

[00:27:59] Speaker 00:
tells us is something that is used to define the term.

[00:28:05] Speaker 00:
Now, Your Honor, in Omega, this court set forth the framework for disclaiming statements.

[00:28:12] Speaker 00:
You start with the ordinary meaning of the term.

[00:28:16] Speaker 00:
The ordinary meaning of the term is a substance that dissolves oxygen.

[00:28:21] Speaker 00:
And what you do then is you narrow the scope of the term consistent with the disclaimer.

[00:28:26] Speaker 00:
That's the statement made that is about Wilkins and that is in our metrics' proposal.

[00:28:33] Speaker 00:
Now, a bit ago, I believe there was discussion about whether or not these couple of limited excerpts from the patent specification can constitute implicit disclaimer or something to that effect.

[00:28:46] Speaker 00:
I just want to point out to the court, DECCOM has never argued that any of the statements from the patent specification

[00:28:55] Speaker 00:
rise to the level of lexicography or disclaimer.

[00:28:59] Speaker 00:
That has never been an argument, and the district court did not find that.

[00:29:03] Speaker 00:
And yet, that's essentially what they're asking this court to do.

[00:29:06] Speaker 00:
They're asking this court to elevate two limited Xs from a patent specification and utilize those to find some implicit disclaimer, despite the fact that the patentee explicitly states otherwise during the file history.

[00:29:22] Speaker 00:
And respectfully, your honor, that's improper and is contrary to this court's clean construction precedent.

[00:29:31] Speaker 00:
That's all I had unless the court has additional questions about the other terms that issue.

[00:29:34] Speaker 00:
I know that I don't have much time left.

[00:29:36] Speaker 03:
Any other questions?

[00:29:38] Speaker 00:
Nope.

[00:29:39] Speaker 03:
Nope.

[00:29:40] Speaker 03:
Okay.

[00:29:40] Speaker 03:
This matter will stand submitted.

[00:29:42] Speaker 03:
Uh, thank you counsel.

[00:29:45] Speaker 00:
Thank you, your honor.

[00:29:46] Speaker 04:
Thank you, your honor.

[00:29:51] Speaker 04:
The honorable court is adjourned until tomorrow morning at 10 a.m.