[00:00:04] Speaker 03:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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We'll now hear argument in number 19-1602 Echo Services LLC versus Certified Aviation Services LLC, Mr. Weinberg.

[00:00:27] Speaker 02:
Good morning.

[00:00:27] Speaker 02:
Jonathan Weinberg for Appellate Cass.

[00:00:29] Speaker 02:
May it please the court.

[00:00:31] Speaker 02:
CAPS was found to infringe the 262 patent because it uses a keypad for selecting a type of engine and a computer for washing the engine accordingly.

[00:00:42] Speaker 02:
That claimed scope is overbroad, it's ineligible, and it's entirely obvious.

[00:00:49] Speaker 02:
These are three alternative grants for reversal, and I'd like to start with the threshold issue of eligibility.

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Our argument here is that under the scope necessary to support the verdict,

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The claims are ineligible because they reset a generic machine that washes something.

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Here, it happens to be a turbine engine based on its type.

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The structure recited is entirely generic, a washing unit coupled with a computer and a keypad.

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The process, equally generic.

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You determine the engine type, get the corresponding parameters, and wash the engine accordingly.

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The fact that this process and structure is so generic that if one replaces

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phrase turbine engine with the word laundry.

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These claims are a perfect read on my washing machine at home.

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So the law at least to this respect is clear.

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Is it clear?

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Council, are you saying your washing machine at home is an abstract idea?

[00:01:47] Speaker 02:
No, I'm saying that the claims here are so broad because they capture any kind of washing machine.

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So the washing machine at home, the washing machine that's being used to wash jet engines,

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Pretty much any machine or the idea of any machine that washes something according to its type is captured by these claims.

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Are fraud claims necessarily ineligible?

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Well, the eligibility analysis does concern preemption.

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And this court's holdings have been pretty clear in cases like McCrow that the bare idea of automating something is ineligible.

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whereas a specific structure or specific process to achieve that automation would be eligible.

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And so the question in this case is, does this claim recite any specific structure or any specific process, or does it just recite this goal, this desire to automate what was a conventional process?

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And if you go through the structure and the process here, it's entirely generic.

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That is common to any solution.

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for washing engines according to their type.

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Is there any dispute here as to whether the washing methodology recited in the claim was conventional and well-known before this patent?

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So the washing methodology, again, is just determining the engine type, getting the corresponding parameters, and washing using the parameters.

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Now, that can't supply an inventive concept for two reasons, one of which you just touched on, because it's conventional.

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But the other one is even if it were not conventional, it's abstract.

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It's just the process of washing something by its type, which is an abstract concept.

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And steps that do nothing more than spell out the abstract idea are ineligible.

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We've seen that in Ultramershal and the Capital One case.

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Now, as an alternative ground, even if it were not abstract,

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it's also entirely conventional.

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So if we reach the fact issue, which we don't have to under BSG.

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Yeah, but my question to you is, is there any dispute between the parties as to whether it was conventional and well-known, or is that agreed?

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The briefing from EcoServices says that there is a dispute about this.

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We don't think that it was disputed below, and certainly the district court specifically called it a conventional human automated process.

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Ecoservices hasn't argued that that fact finding is clearly erroneous or lacks any kind of evidence.

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They simply said that this is a fact issue that the court shouldn't have reached.

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They haven't supported that.

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And if we need to use conventionality to show that this conventional process was not an inventive concept, we can do that.

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But the court need not reach that question because watching something according to its type is itself abstract.

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And therefore, it cannot provide an inventive concept.

[00:04:49] Speaker 01:
Well, the methodology with respect to the other patent no one disputes was unconventional.

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Is there anything in this patent that says that the methodology that is being employed is the same as that in the method patent?

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So the 860 patent is a completely separate patent from the 262.

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The 262 doesn't require any kind of spraying with atomized water.

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It doesn't say anything about the spray characteristics.

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Again, it's just a three-piece claim that says a washing unit, which is anything that provides washing liquid, connected to a computer and connected to a keypad for any kind of interface, really, not just a keypad.

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And there's no dispute that these three components were

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known, generic, and that the configuration of them, which is that they're just connected to one another, is generic structure.

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In fact, the verdict here rests entirely on the function, not the structure.

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The expert testified that he never opened up the machine.

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He never examined the hardware or the software.

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He only, quote, witnessed what it does.

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And what it does is exactly what human operators always had done.

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Determine the engine type, get the corresponding parameters, and watch using those parameters.

[00:06:20] Speaker 01:
Why isn't this, though, as the district court found, like McCrow, where the problem was is that before it was mechanized, it was subject to human error?

[00:06:35] Speaker 02:
Well, the district court misread McCrow

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McCrow was a case where specifically, quote from McCrow, that unlike cases where the claimed computer automated process and the prior art methods were carried out in the same way.

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In McCrow, the human operators used their own subjective determinations, and that was replaced with a computer system that used a specific set of objective rules.

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And that was found eligible exactly because that computerized method with those specific rules was different than what human operators always had done, which is to use subjective determinations.

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And that's why both parties agree that McCrow is directly on point here, and we think it's dispositive.

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It lays out exactly what the proper legal framework is, and it shows that this case is unlike McCrow.

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Unless my colleagues have further questions about

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this patent, could you turn to the 860 patent?

[00:07:36] Speaker 02:
Of course.

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EcoServices is one infringement in the 860 patent based on a theory that is facially wrong and that it won't even defend an appeal.

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That alone demands J-Mall of non-infringement.

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And on appeal, EcoServices presents an entirely new theory, but that theory is also wrong and it's indefinite.

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And because Ecoservices fails to identify any definite reading of the claim under which evidence would show infringement, the claims are either indefinite or they're not infringed.

[00:08:07] Speaker 00:
One of those.

[00:08:08] Speaker 00:
The way I read the briefs from both sides, it looks as though you agree that the claim should be interpreted as requiring a sufficient quantity of these small particles

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to efficiently and effectively wash the engine.

[00:08:28] Speaker 00:
And if that is the claim construction, and I'm not sure that there's a difference between the parties about that, why is the claim indefinite?

[00:08:41] Speaker 02:
Well, I think that this got a little bit confused in the briefing.

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This is not our position.

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What claim one recites is spraying, quote, a total volumetric flow

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0.5 to 60 liters per minute at the given range of particle sizes.

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Now, that's what has to be sprayed.

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So the infringement question is, the cycling infringes, it satisfies the volume limitation, but fewer than 35% of the particles are in the range.

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And the answer can't be that what this claim requires is just to spray whatever would be effective.

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If that were the case, then the claim would have just

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presided, spray whatever amount is necessary to wash the engine.

[00:09:26] Speaker 00:
On page 50 of your brief, you say the specification also identifies various objects of the present invention, including washing effectively with far less quantities of liquid.

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The particle size limitation must therefore be interpreted to promote these objects of the invention.

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Isn't that a statement that the

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claim should be interpreted to have an effective and efficient washing limitation?

[00:09:58] Speaker 02:
No, it's a statement saying that whatever interpretation of this particle size limitation is, it should advance the object of the invention.

[00:10:09] Speaker 02:
This is slightly different than what EcoServices is saying.

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EcoServices is saying that the particular

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criteria don't matter at all so long as you advance this one objective.

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So they're removing the claim language before we study criteria altogether.

[00:10:29] Speaker 00:
Let's assume for the moment that we conclude that the construction of the claim is that you have enough of these small particles to effectively and efficiently wash the engine.

[00:10:42] Speaker 00:
Why would that be indefinite?

[00:10:47] Speaker 02:
I'll answer the question.

[00:10:49] Speaker 02:
It has three issues.

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It's new, it's wrong, and it's indefinite.

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And here's why.

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So to answer that third question, why is it indefinite?

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It's because there's no evidence in the record whatsoever that an artisan could translate that effectiveness objective into an objective boundary with which to answer the infringement question.

[00:11:10] Speaker 00:
But isn't the burden on you to show that someone skilled in the art couldn't figure it out?

[00:11:18] Speaker 02:
Well, that's for indefiniteness, right, but there has to be... This is a new question presented... This is a new interpretation presented on appeal for the first time, and that's why there's no actual evidence interpreting it, because this was not a theory that eco-service is presented at all.

[00:11:35] Speaker 01:
But you never asked for a construction of this claim, did you, or this limitation?

[00:11:40] Speaker 02:
Well, the parties agree that the construction will be ordinary meaning.

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And so with Ecoservices' infringement burden to show that under the ordinary meanings, there was sufficient evidence here to show an infringement.

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And they didn't do that because they voted an interpretation of the ordinary meaning that they won't even defend here on appeal.

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So I see I'm well into my rebuttal time.

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And if you have more questions on this issue, I'm happy to reserve the rest for rebuttal.

[00:12:13] Speaker 00:
OK.

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If there are no further questions, I'll sit down.

[00:12:21] Speaker 02:
All right, Mr. Jay.

[00:12:23] Speaker 03:
Good morning, Your Honors.

[00:12:24] Speaker 03:
May it please the Court, William Jay from Goodwin Proctor for Ecoservices.

[00:12:28] Speaker 03:
My friends on the other side have raised, I think, at least five different issues in their brief.

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The argument is so far focused on two, and I'll turn primarily to those.

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But, of course, I'm happy to answer any questions that the Court may have about the other issues.

[00:12:42] Speaker 00:
Why don't we start with the 860 since we were just talking about that.

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Do you agree that the construction is effectively and efficiently wash the engine?

[00:12:53] Speaker 00:
That's what you seem to say in your red brief.

[00:12:56] Speaker 03:
That's the construction for the claim as a whole.

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In other words, that is what is required to infringe.

[00:13:03] Speaker 03:
The other side says that it's the particle size limitation that's indefinite and they say that it can't mean what it means as a matter of plain language.

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In other words, that there are particles that are within that quite precise range, because that would not practice the invention, that would not effectively and efficiently clean the engine.

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And that is built into the method, as Your Honor's question recognizes.

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So the reason that the other side's indefiniteness argument is wrong is that it focuses on

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how many particles meet the particle size limitation while ignoring the efficiently clean the engine part of the claim.

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So yes, we agree that that's the right way to look at the method.

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That is what was proved at trial with the testing that our expert did demonstrating that it's not just, it's by no means a single particle in the cycling system.

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that meets the particle size limitation.

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But a substantial number of particles ranging between 15 and 35% of all particles sprayed at the given parameters.

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And that was more important.

[00:14:19] Speaker 00:
But I don't see that either expert addressed the question of whether someone skilled in the art would know the particle range and the quantity to use within that range.

[00:14:34] Speaker 03:
Well, I think as one of the court's questions recognized, this was not a disputed issue at trial because the parties had not raised an indefiniteness challenge to this at the time of trial.

[00:14:48] Speaker 03:
So the experts were not asked to specifically opine about the definiteness of the particle size limitation, but the district court recognized that at trial, the experts were able to apply the particle size limitation in

[00:15:03] Speaker 03:
the testing, for example, that our expert did, measuring whether the particles met that particle size limitation, and then going on to assess whether the cyclane system practices the invention as a whole, like the full claimed method, because the particles in cyclane follow the gas path through the turbine, which is what the claim recites as the degree to which the particles of liquid are finally divided.

[00:15:37] Speaker 03:
So I do want to respond to my friend's point that this is a quote unquote new construction.

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We've always taken the position that within the range of 250 to 120 micrometers means what it says.

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My friends say that it can't mean what it says because we don't know how many particles must be at that size.

[00:16:01] Speaker 03:
And they've repeatedly gone back to the,

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to the one particle hypothetical.

[00:16:09] Speaker 03:
But the point that I think they miss and that is consistent in our construction from the very beginning is that to practice the invention, you have to practice all of the limitations of the invention, not just the particle size limitation.

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And that includes

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being finely divided to a degree at which the particles of liquid will follow the same routes through the turbine compressor as those previously taken by the contaminants.

[00:16:33] Speaker 03:
And that is demonstrated not only by our expert's testimony, but also by the engineering order that's in the record and by another document from CAS demonstrating that in its system, the fine mist follows the gas path through the turbine.

[00:16:57] Speaker 03:
Unless the court has other questions about the 860, I will turn to the 262 patent.

[00:17:10] Speaker 03:
Okay, thank you.

[00:17:12] Speaker 03:
On the question of subject matter eligibility under section 101, this is not a patent that preempts the abstract idea of

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washing something according to its type, it doesn't even preempt the idea of washing a turbine engine according to its type.

[00:17:30] Speaker 03:
Because, after all, this is an automated process and that is what differentiated this process from what came before.

[00:17:41] Speaker 03:
there were various manual ways of washing engines according to their type.

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But what this method, sorry, what this system in combination allows is for the parameters that are specific to an engine, an engine type, to actually control the operation of the system.

[00:18:03] Speaker 03:
And I think I would refer the court in particular to the discussion and the specification in column seven

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starting at line 12, discussing how the control unit directs the opening of one or more valves, and then later on in that paragraph, is configured to regulate a washing time for the particular engine being washed.

[00:18:23] Speaker 03:
That washing time, of course, is a limitation that is reflected in Claim 9.

[00:18:29] Speaker 01:
Council, why isn't this case more like Chamberlain than it is like McCrow?

[00:18:35] Speaker 03:
I think, Your Honor, that it's like McGraw because it is an automation of something that was previously done by people.

[00:18:45] Speaker 03:
The automation solves a particular problem, and I think that's discussed both in the specification

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at 356 and 442, and then also by the district court at page 12 of the appendix discussing the inventor's testimony and even the plaintiff's expert's testimony about the particular problems relating to human error in this field.

[00:19:11] Speaker 03:
And by that I mean the fact that aircraft engines are being washed by individuals often late at night, often in the dark, and that automation dealt with

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dealt with that problem by avoiding human error.

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It also adds a degree of precision that makes possible the types of measurement of volumetric flow that not in the claims of this patent, but in other claims that are issued from the same specification.

[00:19:44] Speaker 03:
You can see the discussion in the specification from columns seven to eight that deal with the measurement of contaminants in the wastewater.

[00:19:55] Speaker 01:
Isn't there a problem that, you know, we have to look at the claims?

[00:19:58] Speaker 01:
Yes, the specification informs the claims, but it's the claims that we have to determine its eligibility based on, right?

[00:20:06] Speaker 03:
Of course that's right, Judge O'Malley.

[00:20:08] Speaker 03:
And the claims don't just recite a generic control unit, right?

[00:20:13] Speaker 03:
They recite that the control unit is configured to regulate the washing unit according to washing parameters associated with the particular washing program.

[00:20:21] Speaker 03:
And the washing program has to be based on the engine type.

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And so that is what's different between this claim, I should say these claims, and the prior art, that there wasn't previously this type of automation in this field.

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And I think that that's what separates it.

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It also is what demonstrates that the other side's formulation, that this is the idea of washing

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an engine according to its type, that's not what these claims are directed to because of the automation element.

[00:20:58] Speaker 03:
My client does washes that are operator directed rather than controlled by a control unit and I understand that CAS may well do the same.

[00:21:11] Speaker 03:
So this isn't preempting every way of making a judgment about engine type and directing a wash accordingly, but it is automating it and giving control of particular variables, including time, to the control unit so that the wash doesn't go on too long.

[00:21:34] Speaker 03:
It doesn't rest on kind of human estimation.

[00:21:36] Speaker 03:
And to analogize to McCrow, so the question in McCrow was whether the

[00:21:41] Speaker 03:
whether creating types of rules like this was good enough to make eligible a process that automated a task that humans were capable of performing, at least at some lesser level of precision.

[00:21:57] Speaker 00:
We have prior cases that have said that automating tasks that were performed manually before don't become patent eligible just because the computer

[00:22:09] Speaker 00:
Does it more efficiently or more quickly?

[00:22:12] Speaker 00:
And it seems to me that you have a problem in the sense that avoiding human error, similar to those kind of generic benefits from computerization that we've held don't make things patent eligible.

[00:22:29] Speaker 03:
I understand the question, but I think that the difference here is that a number of the cases to which you're referring talk about things like implementing a fundamental law of economics, a law of nature, an ordinary means of organizing human activity and doing so on a computer which does so more efficiently.

[00:22:54] Speaker 03:
This is something different because it is an actual application of technology which was done entirely manually before this patent, creating a particular problem that this patent is structured to solve.

[00:23:10] Speaker 00:
Isn't it the case that automating any manual process is going to make it less error prone?

[00:23:18] Speaker 03:
It may, although some processes are not suitable to automation for a variety of reasons.

[00:23:27] Speaker 03:
But in this case, it's not just the idea of automation, because not every automation is covered by these claims.

[00:23:39] Speaker 03:
But it's dealing with particular variables in the

[00:23:46] Speaker 03:
in this art that have been shown or that the specification demonstrates were a particular problem.

[00:23:54] Speaker 03:
And I would just point to washing time in particular.

[00:23:57] Speaker 03:
And the question is under METRO, whether there's enough detail provided about how the process is automated.

[00:24:07] Speaker 03:
In other words, whether the rules set out in the patent and the claims provide enough detail.

[00:24:15] Speaker 03:
Challengers are always going to argue that there's not enough detail.

[00:24:21] Speaker 03:
There has to be more precision in order to be subject matter eligible.

[00:24:26] Speaker 03:
But I guess I would analogize to the, to McRoe in which they provided types of rules but not rules themselves.

[00:24:33] Speaker 03:
In other words, that's why there is not in these claims a discussion of what the washing time should be for one particular type of engine found on one particular type of Boeing or Airbus aircraft.

[00:24:45] Speaker 03:
because instead it's talking about the types of rules, as the court said in McRoe, accepting the patentee's argument.

[00:24:53] Speaker 03:
That was a case in which the rules were going to vary by character, as it sort of colorfully illustrated.

[00:24:58] Speaker 03:
A swamp monster, this is a case about animation, a swamp monster was going to use different rules than a tight-lipped cat, and that is why the claims were framed at a greater level of generality.

[00:25:09] Speaker 03:
But that was entirely appropriate in that context.

[00:25:12] Speaker 03:
We think the same is true here.

[00:25:13] Speaker 03:
Again, because this is not an attempt to preempt the abstract idea of washing something according to its type.

[00:25:22] Speaker 03:
It is specific to engine type.

[00:25:25] Speaker 03:
It is also specific to the type of washing parameters that are appropriate in this art.

[00:25:32] Speaker 03:
As I mentioned, claim nine is specific to time, but the specification gives some other details about how the control unit

[00:25:38] Speaker 03:
takes control of the wash in this context.

[00:25:46] Speaker 01:
So you think that on eligibility this is a pure step one analysis?

[00:25:52] Speaker 03:
I think that that's right, that this can be resolved as step one and I did want to mention the factual context of this case because Judge Dyke asked my friend whether the

[00:26:03] Speaker 03:
whether the facts were in dispute.

[00:26:06] Speaker 03:
I think it's important to note that this is not a case in which the Section 101 issue was submitted to the jury for resolution of factual disputes.

[00:26:17] Speaker 03:
No one, my friends on this side, never suggested that they had factual disputes that they wanted to take to the jury.

[00:26:23] Speaker 03:
They said that Section 101 is a pure question of law.

[00:26:30] Speaker 03:
But I think that, and that they wanted to resolve it to brief it to the court post trial.

[00:26:35] Speaker 03:
But I think that the consequence of that is that the factual record, that they did not make any factual record about what was routine and conventional in the art except what was submitted to trial.

[00:26:48] Speaker 03:
And to the extent that that's in dispute, I think the court has to take that in our favor.

[00:26:53] Speaker 03:
Many, of course, many 101 cases come up to this court pre-trial, but in this post-trial context,

[00:26:59] Speaker 03:
I think you have to take either the district court's resolution of it to the extent that the district court resolves fact questions.

[00:27:10] Speaker 03:
That, of course, would be reviewed for clearer, but to the extent that you're just looking at the evidentiary record, you can't resolve dispute facts in the challenger's favor.

[00:27:22] Speaker 01:
What does the term, or what do you understand the word regulate mean in the claims?

[00:27:28] Speaker 03:
We think that, let me answer that in two steps.

[00:27:32] Speaker 03:
One, the other side attempted to ask the district court to construe that to mean both regulate and monitor.

[00:27:41] Speaker 03:
And the district court rejected that because monitoring is something that the, is another embodiment from the specification

[00:27:50] Speaker 03:
that the challenger was trying to import into the claim.

[00:27:54] Speaker 03:
So what we think regulate means in its plain and ordinary sense is to perform functions like turn on and off.

[00:28:02] Speaker 03:
And I think that that's illustrated by the passage I pointed to in column seven, line 12, which the control unit directs the opening of one or more of the pumping system.

[00:28:17] Speaker 03:
That's the type of activity that regulate encompasses.

[00:28:21] Speaker 01:
So how is that different than what a human would do?

[00:28:27] Speaker 03:
So it's certainly true that humans do open the valves when they're washing an engine.

[00:28:34] Speaker 03:
But it's the precision of being able to open the valves simultaneously if necessary, if there's more than one, and also to do so for a very precise time, which

[00:28:49] Speaker 03:
which a human operator is not necessarily going to be able to do.

[00:28:52] Speaker 03:
And of course, it also ensures that because it's based on the information detector having correctly ascertained the engine type, it's not going to be done incorrectly by a human operator that's gone and gotten a manifold out of a shed and connected it to the engine.

[00:29:13] Speaker 03:
is going to be the correct parameters loaded in in advance for the correct engine type.

[00:29:21] Speaker 00:
Well, manual operators did that too, right?

[00:29:26] Speaker 03:
Manual operators selected the engine type.

[00:29:29] Speaker 03:
In other words, a manual operator might know the information about what the appropriate parameters for a particular type of engine are.

[00:29:40] Speaker 03:
That's correct.

[00:29:41] Speaker 03:
So if they had it on a

[00:29:43] Speaker 03:
on a wallet card or something, they could do that.

[00:29:47] Speaker 03:
But they have to take the right card out and they have to follow the directions and they have to do so, humans are not gonna do so with the same degree of precision.

[00:30:04] Speaker 00:
Okay, anything further?

[00:30:06] Speaker 03:
Not unless the court has any further questions.

[00:30:08] Speaker 03:
I know I'm over my time.

[00:30:09] Speaker 03:
Thank you for your attention.

[00:30:12] Speaker 00:
Okay, Mr. Weinberg.

[00:30:15] Speaker 02:
Thank you, Your Honor.

[00:30:16] Speaker 02:
I'd like to just touch really briefly on the 262 patent and then return to the 860.

[00:30:22] Speaker 02:
As my friend there said on the other side, the only thing that they're pointing to here is that you can regulate a washing time, turn it on and off more precisely.

[00:30:34] Speaker 02:
I just muted that human operators did regulate washing time.

[00:30:37] Speaker 02:
We talked about that at page 29 of our brief.

[00:30:40] Speaker 02:
that they, quote, obtained appropriate pressure and flow and keep track of the washing time.

[00:30:45] Speaker 02:
That's at appendix 105.

[00:30:47] Speaker 02:
So there's nothing new here.

[00:30:48] Speaker 02:
The process being followed by this machine is exactly the same as what's being done by the human operator traditionally.

[00:30:56] Speaker 02:
So on the 860, unless there are other questions on the 262, I'd just like to clarify that there was no other infringement theory other than this one particle construction presented to this jury.

[00:31:07] Speaker 02:
There seems to be this unit

[00:31:08] Speaker 02:
But if you go back to the record and took a look at their expert testimony of the appendix 1245 and 1257, he leaves no doubt on direct and cross-examination that the only theory of infringement was a one-particle reading.

[00:31:22] Speaker 02:
At 1255, he says, if you make particles in that range, then you satisfy the limitation.

[00:31:27] Speaker 02:
At 1253, he says, none of the novels tested were devoid of particles in the range.

[00:31:32] Speaker 02:
A 1255, it says, all you really need to know is that if there is any blue between these two lines, that it satisfies the limitation of the 860 patent.

[00:31:41] Speaker 02:
And on cross-examination, we asked them to confirm this.

[00:31:45] Speaker 02:
This is an Appendix 1305 question, how about if there's one particle in the range, would that still infringe?

[00:31:51] Speaker 02:
The answer is, the way the claim is written, one particle would infringe.

[00:31:56] Speaker 02:
Yes, sir, it would satisfy the limitation.

[00:31:59] Speaker 02:
And so for eco-services to come up here to this court and say that cash incorrect to suggest that the infringement theory depends on a single particle construction, that's not credible.

[00:32:10] Speaker 02:
And so J-Mole is appropriate on non-infringement grounds based on that alone.

[00:32:14] Speaker 02:
The theory they presented to the jury is just wrong.

[00:32:19] Speaker 01:
What evidence did you present that showed that it couldn't infringe?

[00:32:27] Speaker 02:
Well, this is under the ordinary meaning, and there was testimony by our expert, Dr. McClow, that 35% was insufficient to wash the fact that the claim language doesn't mean that one particle would infringe.

[00:32:48] Speaker 00:
I'm not sure that the expert's testimony was that one particle would infringe.

[00:32:53] Speaker 00:
He said that at one point, but then

[00:32:56] Speaker 00:
later on in his testimony, he said that in order to effectively wash, you have to either have more particles within that range or wash according to the prior art.

[00:33:13] Speaker 00:
So I'm not sure that he was suggesting really that one particle would accomplish a washing pursuant to the claims.

[00:33:23] Speaker 02:
His direct testimony does suggest that and we did ask him for that directly and that's what he provides to the jury.

[00:33:28] Speaker 02:
Now what the claim recites is a specific total volumetric flow and so presumably that would be what is required of this claim.

[00:33:38] Speaker 02:
A total volumetric flow of 0.5 to 60 liters per minute at the given range of particle sizes.

[00:33:44] Speaker 02:
Now the jury has enough information to conclude

[00:33:48] Speaker 02:
based on that, what this really means is that the range of particle sizes doesn't really matter so long as you have enough to wash effectively.

[00:33:57] Speaker 02:
Now, the reason why that's just wrong is because it takes out all of the parameters that are recited in this patent.

[00:34:04] Speaker 02:
What it reduces this patent to is a claim that says, if you shoot enough particles to follow the gas path, you infringe.

[00:34:13] Speaker 02:
And these four specific parameters

[00:34:15] Speaker 02:
They don't matter.

[00:34:16] Speaker 02:
They mean whatever is required to follow the gas path.

[00:34:20] Speaker 02:
And that can't be the correct construction of this claim, right?

[00:34:24] Speaker 02:
This following the gas path is actually a result that's described.

[00:34:28] Speaker 02:
It says, whereby, whereby meeting people.

[00:34:32] Speaker 01:
Where in the record below did you precisely make this argument?

[00:34:37] Speaker 02:
This argument we didn't have an opportunity to make because this theory was never presented.

[00:34:42] Speaker 02:
We had a j-mall of non-infringement.

[00:34:44] Speaker 02:
They argued one particle.

[00:34:46] Speaker 02:
We argued that that can't be the case.

[00:34:49] Speaker 02:
And they never presented this theory to the district court.

[00:34:53] Speaker 02:
You could read the briefing on Jamal.

[00:34:58] Speaker 02:
And so we didn't have an opportunity until this point to say that this is a wrong theory.

[00:35:01] Speaker 02:
This is a new theory on appeal.

[00:35:04] Speaker 02:
And it happened.

[00:35:04] Speaker 01:
But you were the one who asked about the one particle concept during the course of the trial.

[00:35:10] Speaker 02:
Right, we said it's a one-particle concept.

[00:35:13] Speaker 02:
If that's their infringement theory, which is the theory they presented, that is spatially wrong, and they admitted that now.

[00:35:19] Speaker 02:
They presented no other theory at trial.

[00:35:22] Speaker 02:
And so it can't be the case that we would be faulted for not responding to a theory that they didn't raise.

[00:35:30] Speaker 02:
We responded to it the very first instance we could, which is in our reply brief.

[00:35:36] Speaker 02:
to this court because it came out for the first time in their response brief to this court.

[00:35:43] Speaker 00:
But their expert testified that 15% within this particle size range would be sufficient to clean the engine and that that's what you did, correct?

[00:35:56] Speaker 02:
Right.

[00:35:57] Speaker 02:
He testified that 15% would satisfy the one particle construction.

[00:36:01] Speaker 02:
That was just an instance of him saying,

[00:36:03] Speaker 02:
15% meets my definition of infringement.

[00:36:08] Speaker 02:
It does not suggest anywhere in the record that he was saying 15% would qualify because it's effective, or much less that a person of ordinary skill would know how much is effective.

[00:36:19] Speaker 02:
There's no testimony on that at all.

[00:36:23] Speaker 02:
Their theory here was just that one particle would infringe

[00:36:28] Speaker 02:
And that's not viable, and neither is this new theory on appeal, even if it's considered.

[00:36:38] Speaker 02:
The only other theory that was raised to the jury was that perhaps this means that all of the particles, or substantially all of the particles, should be in the range.

[00:36:50] Speaker 02:
The parties agree there's no infringement under that construction.

[00:36:53] Speaker 02:
And so in the end,

[00:36:57] Speaker 02:
Ecoservices had the burden to prove infringement under some theory.

[00:37:01] Speaker 02:
It fails to articulate any definite reading of the claim under which its evidence suffice.

[00:37:07] Speaker 02:
It didn't articulate it to the jury, not to the district court.

[00:37:10] Speaker 02:
And its new theory here in appeal is not only new, it's wrong, and it's indefinite.

[00:37:16] Speaker 02:
And so I don't know on what basis we have to have infringement in this case.

[00:37:25] Speaker 00:
Okay, anything further?

[00:37:26] Speaker 00:
I think we're probably out of time here.

[00:37:30] Speaker 02:
I have no, nothing else.

[00:37:31] Speaker 00:
Unless you have any further questions, Your Honor?

[00:37:35] Speaker 00:
Hearing none, the argument is concluded.

[00:37:38] Speaker 00:
The case is submitted.

[00:37:39] Speaker 00:
We thank both counsel and that concludes our session for this morning.

[00:37:43] Speaker 03:
Thank you, Your Honor.

[00:37:46] Speaker 03:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.