[00:00:02] Speaker 02:
We have a busy day ahead of us.

[00:00:05] Speaker 02:
We have five cases to entertain for an oral argument this morning.

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And one case has been submitted on briefs.

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The first case is Pacific Coast Building versus Certainty Jimson, Inc., 19-1524.

[00:00:26] Speaker 02:
Mr. Hastings.

[00:00:28] Speaker 02:
You have reserved four minutes of your time for rebuttal, is that correct?

[00:00:32] Speaker 03:
Yes, your honor.

[00:00:33] Speaker 02:
Okay, we're ready to do it.

[00:00:37] Speaker 03:
May it please the court, the district court erred by relying upon extrinsic evidence to construe claim 21 of the 568 patent.

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when the language of the patent is clear and unambiguous when the claims are read in light of the specification.

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Claim 21 is not indefinite.

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So the district court had three reasons that it found the claim indefinite.

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I'm going to talk about each of those three today, which are the scoring depth of the board, whether averaging should be used, and the conversion method of the board thickness.

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And hopefully, with the time today, I'll be able to show that each of these alleged uncertainties is addressed with reasonable certainty in the patent and more than sufficient to show that the patent is not indefinite.

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So I'll start with the first issue, which is the district court finding the claim 21

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to be indefinite because of alleged uncertainty about how deep to score the gypsum wallboard when assessing.

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As the court knows from reading the briefs and the claim language, the claim requires a scored flexoral strength of laminated structure of about 22 pounds per half inch thickness of the structure.

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But the claim goes on to define what

[00:01:57] Speaker 03:
Flexorial strength is or scored flexorial strength is scored flexorial strength is a scored board Certainty came to the district court with an expert with Miller to say depth matters the problem with their argument is the claim Answers this question the plain language of the claim says the scored flexorial strength being the flexorial strength of the laminated structure and here's the keywords and

[00:02:23] Speaker 03:
After the outer paper-clad surface of one of the first and second boards has been scored.

[00:02:31] Speaker 02:
So are you arguing that all you have to do is score or get the knife through the paper and that's enough?

[00:02:38] Speaker 03:
Exactly, Your Honor.

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And that is the plain meaning of the word score.

[00:02:44] Speaker 02:
But that's not what this claim says.

[00:02:46] Speaker 03:
Your honor, the claim says to score the outer-clad, paper-clad surface.

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And Certainty's expert at page 666 of the appendix even acknowledges what score means.

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It means cutting through the paper.

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To put it in context, the way... So in your view, you don't have to

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Cut into the gypsum at all?

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That's correct.

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And that's the way the gypsum boards work.

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The gypsum itself is a relatively fragile structure if it's not supported.

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The laminated outside paper is what gives it the support.

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And it's cutting the paper, which is what removes the support to allow it to be snapped and scored.

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Which of Miller's scoring depths correspond to cutting all the way through the paper?

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Is it 0.5, 1.5, 2.5, 3.5, or 4.5 millimeters?

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Theoretically, Your Honor, it's any of them as long as the paper has been scored.

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Now, the 4.5 has a problem because he admitted himself that it took multiple cuts to get to that depth.

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Scoring simply means taking the knife and scoring to cut through the outer pad of paper-clad surface.

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Once the paper-clad surface has been scored, the board is capable of being snapped.

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And if you look at the results, even under Miller's, when they're actually averaged, and I'm going to come back to averaging in just a second, when they're actually averaged, they're all in the same general range.

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The whole purpose of the invention was to have

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to explain how it is that the board could have enough stability to be transported, which is how you have the outer paperclad surfaces, but then also be able to function with the installation method being the score and stack.

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It was already known in the art to have a double gypsum layer surrounded on the outer sides by papercladding.

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Is that right?

[00:04:35] Speaker 03:
Your Honor, we do not believe that is correct.

[00:04:37] Speaker 03:
I mean, well, the double board.

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But to overcome a rejection,

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Where that was asserted, that's where you came in with this interesting inherent property of your claim invention of having a certain strength value once the paper is scored.

[00:04:53] Speaker 03:
Yes, Your Honor, the strength value was inserted into the claims during the prosecution process to overcome some objections.

[00:05:01] Speaker 04:
So are you going for infringement purposes?

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Are you suing people that make the boards?

[00:05:08] Speaker 04:
Or are you suing the people after somebody later on down the line scores the board?

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It's the people that make the board, Your Honor.

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They're making the infringement.

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So as soon as the board is made, it inherently has this property after it's been scored.

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Yes, and so the board is made.

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The scoring is to talk about the strength of the board for purposes of manufacturing it.

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And so you have to manufacture it at a strength that is sturdy enough to be able to be transported and to be able to use gypsum.

[00:05:38] Speaker 04:
I understand that, but I guess the problem is Dr. Miller ran a lot of tests.

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Did your expert run any tests?

[00:05:44] Speaker 03:
No, and it was not necessary.

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So Dr. Miller ran a lot of tests.

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Yes.

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And I see them at A339, A340.

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And he does a lot of different scoring depths.

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He does a lot of different test positions and directions, face up, face down, et cetera.

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And he does different conversion methods, the PSI and then the linear extrapolation.

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And then he shows that the results of his tests have strength values that are

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all over the place.

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Some would arguably infringe the about 22 pounds and then others, really, there's just no reasonable way you could say it would.

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And so that, I guess, obviously made the district judge nervous and it also makes me wonder if you have these wildly different strength values, how can we say that there's really any predictability here?

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In your honor, there's multiple points in your question, as I think you know.

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The problem, the fundamental problem, and I am going to talk about the averaging and his results and the conversion method.

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But the fundamental problem is we have the classic case of a party bringing in an expert to create uncertainty when the patent language read in light of the specifications has no uncertainty.

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So I've talked about SCORD.

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Our position is that the answer to SCORD is actually in the claim itself.

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It's cut the paper at page 666 of the transcript.

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Miller agrees with that.

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The second issue gets to averaging, and this is where your honor's question comes up, which the results, if you look at his data plots, he plotted every data point with no averaging.

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Well, that recognizes that there are uncertainties in the process.

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In the manufacturing there could be different strengths of a board.

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There could be differences in how someone cuts a board.

[00:07:37] Speaker 05:
And that can result in- There's also differences in how you run the test.

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Face up, face down, perpendicular, parallel, et cetera.

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And that's exactly where I'm going, Your Honor.

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Because the 473 standard tells you exactly how to run the test.

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You run it all four ways.

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And at paragraph 110 of Miller's report, he even acknowledges the critical point that I don't think the district court understood.

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The score line is always down.

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So you run the four results, face up, face down, parallel, perpendicular, but you always scored the bottom of the board with the load coming on top.

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The test tells us to run four methods.

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The 473 standard itself says to test multiple boards, which Miller did.

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But here's what he didn't do.

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The other part of what the 473 standard tells us to do

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which is average the results.

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So, and your honor, this is on page 701 of the appendix.

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It's on the, about halfway down on the left side of the 473 standard.

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When you use multiple boards, it tells you to average the results.

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Now, as the 473 standard says, your average.

[00:08:46] Speaker 04:
Could you show me where on the left hand column of A701?

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Yes, your honor.

[00:08:51] Speaker 03:
It's the left hand column.

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the section right below the diagrams that says reports.

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What it says is, and I want to be clear about this, because I need to come back to the problem of four versus one, which is important as well.

[00:09:04] Speaker 03:
What it says is when you have the multiple specimens, the multiple boards, you average the results.

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So the perpendicular face-up version, if you test three boards, you average the results.

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That's what 473 tells us to do.

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So you get, from running the test, no matter how many boards you run, you get four results.

[00:09:22] Speaker 03:
Miller didn't do that.

[00:09:23] Speaker 03:
He didn't average anything.

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So that's the first problem with his data points everywhere.

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He never averaged the results from the multiple boards.

[00:09:36] Speaker 04:
0.5 millimeter parallel face-up boards?

[00:09:39] Speaker 03:
Yes, because his data points are literally plotting each number he got as opposed to averaging the multiple boards, which the specification tells us to do.

[00:09:48] Speaker 04:
But are you saying that this page of the Joint Appendix is telling you to not only average the values for each

[00:10:01] Speaker 04:
of the multiple samples that are tested parallel face up, but it's also telling you to average parallel face up with parallel face down, perpendicular face up.

[00:10:11] Speaker 03:
It is not.

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It is not, Your Honor, which is the next step of the analysis, which the specification tells us, look to the standard for how to do the test.

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It results in four values, no matter how many boards were used, four values averaged of each four method.

[00:10:28] Speaker 03:
Then you look at the specification of the patent.

[00:10:31] Speaker 03:
Figure three is very important.

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It shows the four values averaged.

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Figure four is important.

[00:10:38] Speaker 04:
It shows the four values from various types of board averaged.

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the four values that are resulting from the 473 test.

[00:10:52] Speaker 04:
If Miller... Yes, but are they parallel face up, parallel face down, perpendicular face up, or perpendicular face down?

[00:10:57] Speaker 03:
One each, just like the standard tells us.

[00:11:00] Speaker 04:
The standard tells us... How do I know that the four samples H1-H4 are each the same sample board

[00:11:09] Speaker 04:
Measured four different ways.

[00:11:11] Speaker 03:
It's not the same sample board.

[00:11:12] Speaker 03:
It's the same four different sample boards It's the same test result your honor so with the 473 standard Yes, your honor each one represents what to you Your honor to each to it the Specification does not tell us which one of the one through the four matches which?

[00:11:33] Speaker 03:
perpendicular parallel

[00:11:36] Speaker 03:
What we do know is it was done using the 473 test.

[00:11:39] Speaker 03:
The 473 test results in four numbers, one for perpendicular face up, one for perpendicular face down, one parallel face up, one parallel face down.

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So it gives us four numbers.

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We have four numbers.

[00:11:51] Speaker 04:
So those are four numbers, and which one of those four numbers represents the 24.1 for H1?

[00:11:59] Speaker 03:
I don't know the answer to that question, Your Honor.

[00:12:00] Speaker 03:
It's not disclosed in the specification.

[00:12:02] Speaker 03:
But what is disclosed is we have four numbers

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From the test method, four numbers reported in the specification that are then averaged.

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It's also figure three, figure four.

[00:12:14] Speaker 03:
Column six uses the word average talking about flexorial strength three different times.

[00:12:19] Speaker 03:
That's how the disclosure is being made.

[00:12:23] Speaker 03:
It is being made that this is an average.

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There's nothing to the contrary.

[00:12:28] Speaker 03:
Miller never did that.

[00:12:29] Speaker 03:
There's no language to the contrary.

[00:12:31] Speaker 02:
Did the ASTM standard ever test for the score depth?

[00:12:36] Speaker 03:
No, Your Honor.

[00:12:38] Speaker 03:
Now, one thing before I run out.

[00:12:40] Speaker 02:
Has anybody ever tested for the scored flexural strength then?

[00:12:45] Speaker 03:
This was a new method that had to be used for this particular product, which is why it's defined as to how you do it.

[00:12:52] Speaker 02:
What I was asking was whether anybody ever tested that.

[00:12:55] Speaker 02:
I think the answer would be no, right?

[00:12:57] Speaker 03:
Your Honor, it's not in the record.

[00:13:00] Speaker 03:
That's the best I can do.

[00:13:01] Speaker 02:
The question that leaps out to me is how does somebody skilled in art know how deep to score?

[00:13:09] Speaker 03:
The answer is in claim 21.

[00:13:10] Speaker 03:
You cut the paper.

[00:13:12] Speaker 03:
That's it.

[00:13:13] Speaker 03:
Once the paper's been cut, any difference in depth according to Miller just makes it easier to break.

[00:13:18] Speaker 03:
Well, the whole purpose of this is to make a board that's easy to break once it's scored.

[00:13:22] Speaker 03:
Your honors before I run out of time.

[00:13:24] Speaker 03:
I do need to talk about you are in your rebuttal time right now Thank you, and I do have one quick point I need to make about conversion methods because I know there's a lot of briefing on that The conversion method is expressly addressed in claim 21 as well It says 22 pounds per half inch thickness that word per is getting overlooked in the briefing and

[00:13:46] Speaker 03:
per, according to Black's Law Dictionary, Webster's random house means for each or for every.

[00:13:51] Speaker 03:
If you go 55 miles an hour, you've gone 55 miles per hour.

[00:13:54] Speaker 03:
It's 50 miles per hour each hour.

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It's the same thing for half inch thickness.

[00:13:59] Speaker 03:
They're ignoring this standard.

[00:14:01] Speaker 03:
The plain language tells us it's a linear conversion.

[00:14:04] Speaker 03:
The other problem Miller has, he's trying to make this a square inch, pounds per square inch conversion.

[00:14:10] Speaker 03:
There's nothing in any of the documents, the patent, the claims, that talks about a square inch.

[00:14:15] Speaker 03:
It's an inch of thickness.

[00:14:17] Speaker 03:
He's trying to change the patent language by using expert testimony.

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And from this court's precedent, that's not appropriate.

[00:14:23] Speaker 03:
Thank you, Your Honor.

[00:14:26] Speaker 02:
Let's hear it from the other side.

[00:14:27] Speaker 02:
Mr. Moore.

[00:14:31] Speaker 01:
Thank you, Your Honor.

[00:14:32] Speaker 01:
Good morning.

[00:14:34] Speaker 01:
Judge Coe correctly decided that claim 21 of the 568 patent is indefinite for three separate and independent reasons, each of which is supported by multiple fact findings that must be reviewed for clear error, and each of which is supported by Dr. Miller's extensive testimony and test results.

[00:14:53] Speaker 01:
First,

[00:14:55] Speaker 01:
Judge Cope correctly concluded as a factual matter that scored flexural strength can be measured multiple ways because it can be measured at multiple score depths.

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and that those multiple score depths lead to different results.

[00:15:08] Speaker 04:
Did Dr. Miller agree that for scoring depth, all that is required is cutting through the paper?

[00:15:13] Speaker 01:
No.

[00:15:13] Speaker 01:
He agreed that scoring when used outside the term, scored flexural strength, scoring generally means cutting a groove with a sharp instrument.

[00:15:22] Speaker 01:
But when you put scoring in scored in the context of this new coined term, scored flexural strength, then you need to know how deep you measure.

[00:15:31] Speaker 04:
Okay, the other side says Dr. Miller conceded that all we need to understand according to the claim language for scoring is just cutting through the paper.

[00:15:40] Speaker 01:
That's not correct.

[00:15:41] Speaker 01:
Dr. Miller's report goes on at length to explain how score depth.

[00:15:45] Speaker 01:
He actually goes on at length to show all the different factors that would impact score depth and how scoring can vary from installer to installer and time of day and all the different ways you can do it.

[00:15:56] Speaker 01:
And that's in the joint appendix of page A19 through A21, particularly paragraph 50.

[00:16:02] Speaker 01:
He also goes on at length in his expert declaration to explain how the test results vary based on how deep you scored.

[00:16:10] Speaker 01:
And he explains that in multiple places in his report, but at A310, A340 through 42, and A348 through 49.

[00:16:23] Speaker 01:
And it's common sense, because when you look at a board, how deep I cut through that board is going to affect how much force it's going to take to break it.

[00:16:33] Speaker 01:
If I cut what Dr. Miller concludes and what Judge Coe concludes, as a matter of fact, is how deeply I cut through that board, the deeper I cut.

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the less force it's going to take to break.

[00:16:45] Speaker 02:
It's common sense.

[00:16:53] Speaker 02:
What's the depth of the cut is that referring to?

[00:17:00] Speaker 01:
It's not telling you.

[00:17:00] Speaker 01:
That's the problem.

[00:17:02] Speaker 01:
That's what Judge Coe is referring to on page A20 of her report, that the claim doesn't provide you any guidance on how deep to score it.

[00:17:09] Speaker 01:
Scored flexural strength was a term coined in this patent.

[00:17:12] Speaker 01:
And so from page A20 in her report to A22, she

[00:17:15] Speaker 01:
First starts by looking at the claims and says the claims don't provide any guidance how deep to score.

[00:17:21] Speaker 01:
Then she looks at the specifications.

[00:17:22] Speaker 02:
The comment says that the answer to that is it's just any time you score the paper or nothing else that you're going to get this straight.

[00:17:30] Speaker 01:
But that's not correct.

[00:17:31] Speaker 01:
The plain language does not in any way limit the score depth.

[00:17:34] Speaker 01:
In fact, as a practical matter, when you're scoring gypsum board, it's impossible to just cut through the paper.

[00:17:40] Speaker 01:
You can't just cut through the paper and not cut into the gypsum.

[00:17:44] Speaker 01:
Because how you create gypsum is you lay down a piece of paper, then this goes down a conveyor belt, and the slurry is laid over the top, and then a second piece of paper is put on the top.

[00:17:54] Speaker 01:
And that paper and that slurry adhere to each other, and they become part of one board.

[00:18:00] Speaker 01:
So it's impossible to just cut through.

[00:18:02] Speaker 01:
That's why Dr. Miller did his test results in terms of 0.5, 1.5, 2.5, because you can't just cut through the paper.

[00:18:10] Speaker 01:
And that might vary board to board.

[00:18:12] Speaker 01:
It might vary part of the board.

[00:18:13] Speaker 01:
from a different part of the board.

[00:18:15] Speaker 01:
But there's all these different factors that Dr. Miller explains in his report.

[00:18:19] Speaker 02:
So when you look at the next term, the scored flexural strength, in this discussion, I'm looking at the claim 21, the flexural strength of a laminated structure, it says after the outer paperclad surface has been scored,

[00:18:36] Speaker 02:
I don't see that to say that only the paper.

[00:18:39] Speaker 02:
It says the outer paper-clad surface.

[00:18:42] Speaker 02:
So it seems to me to be referring to the surface of the gypsum board as a whole and not just paper.

[00:18:50] Speaker 02:
Am I missing something here?

[00:18:52] Speaker 01:
No, it doesn't specify anything about how deep to score.

[00:18:55] Speaker 01:
I would totally agree with that.

[00:18:57] Speaker 01:
And what's important here, my friend relied on the fact that it says after the papers were scored.

[00:19:03] Speaker 01:
All the term after means is at the time following.

[00:19:06] Speaker 01:
Anytime after the following.

[00:19:07] Speaker 01:
If I said, what am I going to do after this hearing?

[00:19:10] Speaker 01:
It could refer to walking back to my office.

[00:19:12] Speaker 01:
It could refer to lunch.

[00:19:14] Speaker 01:
There's no limit in the claim on how deep to score.

[00:19:17] Speaker 01:
And because this is a coined test, a test that didn't exist before this patent, and the results of how deep to score directly impact whether somebody might satisfy this claim limitation, that's why Judge Koh, correctly determined as a factual matter based on the extensive testimony of Dr. Miller,

[00:19:35] Speaker 01:
that this claim was indefinite.

[00:19:37] Speaker 01:
And those findings should be reviewed for clear error.

[00:19:40] Speaker 01:
Pacific Coast did present an expert on this exact issue, but the testimony should be totally disregarded because it is conclusory, off point, and unsupported.

[00:19:51] Speaker 01:
It's conclusory and off point because if you look at Mr. Reisinger's declaration, he makes this one statement, minor variations in the depth of score into a gypsum panel do not materially affect the strength needed to snap a panel.

[00:20:06] Speaker 01:
He doesn't cite any test results.

[00:20:07] Speaker 01:
He doesn't do any test results.

[00:20:09] Speaker 01:
He doesn't cite any literature.

[00:20:10] Speaker 01:
He just makes the bold, unsupported conclusion.

[00:20:13] Speaker 01:
Shouldn't be given any weight.

[00:20:14] Speaker 01:
Further, all he testifies about is the strength needed to snap a panel.

[00:20:20] Speaker 01:
That's not what's at issue here.

[00:20:21] Speaker 01:
Remember, we're not talking about the strength needed to snap a panel.

[00:20:24] Speaker 01:
We're talking about a term that was coined in this patent, scored flexural strength.

[00:20:29] Speaker 01:
And whether that term, scored flexural strength, is about 21, and whether that would vary based on scored up.

[00:20:35] Speaker 01:
He doesn't provide any testimony on that at all.

[00:20:37] Speaker 01:
In fact, interestingly, his declaration doesn't even mention the ASTM standard.

[00:20:44] Speaker 04:
What about the averaging?

[00:20:47] Speaker 04:
The other side's talking about what you need to appreciate and in his view the district court did not appreciate is that what you're exercising and trying to understand how to

[00:20:59] Speaker 04:
find the right strength values using an averaging of a number of different calculations?

[00:21:06] Speaker 01:
First of all, averaging wouldn't affect the score depth.

[00:21:08] Speaker 01:
Score depth is an independent reason to support Judge Coe's decision.

[00:21:11] Speaker 01:
Moving to the different orientations where they propose averaging, there is no support for averaging in the claim.

[00:21:17] Speaker 01:
In fact, not only is there no support for averaging in the claim, there's no support for averaging in Pacific Coast-owned construction of these terms.

[00:21:26] Speaker 01:
or in Pacific Coast's experts discussion of these terms.

[00:21:30] Speaker 01:
If you look at their brief on page 24, they provide their construction of these terms.

[00:21:36] Speaker 01:
They never mention average.

[00:21:37] Speaker 01:
And if it's not in the claim, and if it's not in their construction,

[00:21:41] Speaker 01:
That's conclusive of this matter.

[00:21:43] Speaker 04:
Is it in the ASTM standard, where you figure out the average breaking load?

[00:21:49] Speaker 01:
There is an average, and that's very important.

[00:21:51] Speaker 01:
That's in the joint appendix of page A701, and it's section 11.7 of the standard.

[00:21:56] Speaker 01:
What it does in that situation, it says you take samples.

[00:21:59] Speaker 01:
You take a number of sample boards.

[00:22:00] Speaker 01:
You can take three, four, five, any number of boards.

[00:22:04] Speaker 01:
Then you sample them.

[00:22:04] Speaker 01:
You take four samples from each board, two parallel and two perpendicular.

[00:22:09] Speaker 01:
And then at 11.7, after you've taken those measurements, how you report it is you average the like results.

[00:22:17] Speaker 01:
For example, you'd average, you'd report four different numbers.

[00:22:19] Speaker 01:
You average all the parallel face-ups, and you get a number.

[00:22:23] Speaker 01:
You average all the parallel face-downs, and you get a number.

[00:22:26] Speaker 01:
What you don't do is average parallel face-up with perpendicular face-up.

[00:22:32] Speaker 01:
And that's common sense too, because if I was going to take

[00:22:35] Speaker 01:
the average height of a building in Washington DC.

[00:22:38] Speaker 01:
And I determine it's 14 stories and I figure that out in feet.

[00:22:42] Speaker 01:
That number makes sense.

[00:22:43] Speaker 01:
That's a meaningful number of what the average height of a building is in DC.

[00:22:47] Speaker 01:
But I wouldn't average the average height of a building in DC with the average width of a building in DC.

[00:22:53] Speaker 01:
Because when I average height and width, now I've got a meaningless number.

[00:22:57] Speaker 01:
That's like averaging parallel numbers and perpendicular numbers.

[00:23:01] Speaker 01:
There's no meaningful reason to do that.

[00:23:08] Speaker 01:
Unless the court has any further questions?

[00:23:10] Speaker 01:
No, I think we're fine.

[00:23:11] Speaker 01:
Thank you.

[00:23:22] Speaker 03:
Your Honor, what Certainty is asking for is mathematical precision on scoring depth, which this Court's precedent do not require mathematical precision.

[00:23:31] Speaker 03:
As long as the paper has been cut, that's enough.

[00:23:34] Speaker 03:
How deep beyond that does not matter.

[00:23:36] Speaker 03:
Page 666 of the record.

[00:23:39] Speaker 03:
Mr. Miller was asked, so scoring means cutting through the paper.

[00:23:43] Speaker 03:
His answer, yes.

[00:23:44] Speaker 03:
That's it.

[00:23:45] Speaker 03:
Zoll, this court's decision in Zoll is important.

[00:23:48] Speaker 02:
It's a situation where some factors could- The claim that says a scored flexural strength of a laminated structure is about 22 pounds, right?

[00:23:58] Speaker 02:
Yes.

[00:23:58] Speaker 02:
And you're saying that that measurement, 22 pounds, is with the board that has had just the paper scored and nothing else?

[00:24:06] Speaker 03:
No.

[00:24:06] Speaker 03:
No, Your Honor.

[00:24:06] Speaker 03:
It's been scored.

[00:24:07] Speaker 03:
If it's cut a little bit further into the board, which is likely, that doesn't matter.

[00:24:12] Speaker 03:
How deep?

[00:24:12] Speaker 03:
Doesn't matter.

[00:24:13] Speaker 02:
But it changes the strength, doesn't it?

[00:24:15] Speaker 03:
Not materially, Your Honor.

[00:24:17] Speaker 03:
If you look at the average results for Miller, because he refused to average it, look at the average results for Miller, page 42 of our brief, they're all within the range.

[00:24:25] Speaker 02:
So if I score a board three quarters of the way through, is it harder or easier to snap?

[00:24:31] Speaker 03:
Theoretically, it should be easier, but that wouldn't be scoring, Your Honor.

[00:24:34] Speaker 03:
Scoring is just cutting into the board, making the groove.

[00:24:38] Speaker 03:
As long as the paper's been cut, that's enough.

[00:24:40] Speaker 02:
Where do you find that definition in the specification?

[00:24:45] Speaker 02:
Your Honor, that definition... You're defining the word scoring.

[00:24:49] Speaker 03:
The word score, every party in this case agreed what score meant, which is to cut the paper.

[00:24:53] Speaker 03:
I even just read Dr. Miller's testimony.

[00:24:56] Speaker 03:
The depth was the different issue, but every party agreed what scored meant and the claim says score the outer paper, which means cut the paper.

[00:25:04] Speaker 03:
Page 666 is the important point, Your Honor.

[00:25:06] Speaker 04:
Your representation of Dr. Miller's data points in your graph on page 42.

[00:25:12] Speaker 04:
Just so I understand, you've averaged out all of his data points, is that correct?

[00:25:17] Speaker 04:
Yes, Your Honor, that's correct, Your Honor.

[00:25:18] Speaker 04:
And did you use all of the values for...

[00:25:21] Speaker 04:
say 0.5 millimeter scoring that is all of the face up parallel all of the face up perpendicular all of the face down etc.

[00:25:31] Speaker 03:
Yes your honor we did.

[00:25:32] Speaker 04:
So you used all of those measurements.

[00:25:35] Speaker 03:
Yes your honor we did and what we did in the graph is we kept it separate by depth so you can see the average by depth and then in our footnote we went ahead and averaged the whole thing

[00:25:44] Speaker 03:
Their averages are all within about 2 point something pounds of what state of the claim.

[00:25:50] Speaker 04:
And there's nothing in the ASTM standard that says when you calculate the strength value of a board, you take all four results and average them together.

[00:25:59] Speaker 04:
It doesn't say that.

[00:26:00] Speaker 03:
The ASTM does not.

[00:26:02] Speaker 03:
Column 6 of the patent in figure 3 and figure 4 of the patent disclosed that, Your Honor.

[00:26:06] Speaker 03:
That's where it's disclosed.

[00:26:08] Speaker 03:
Thank you, Your Honors.

[00:26:12] Speaker 02:
Thank the party for their argument.

[00:26:15] Speaker 02:
Our next case is Horkmore LLC versus SFM LLC 19-1526.