[00:00:02] Speaker 05:
The United States Court of Appeals for the Federal Circuit has now opened in session.

[00:00:06] Speaker 05:
God save the United States and this honorable court.

[00:00:13] Speaker 03:
We will hear argument in core photonics versus Apple 20-1424.

[00:00:17] Speaker 03:
Mr. Fenster, please begin when you're ready.

[00:00:25] Speaker 01:
Good morning, your honors, and may it please the court, this is Mark Fenster for core photonics.

[00:00:30] Speaker 01:
The court should reverse the PTAB's decision because substantial evidence does not support the determinations that Prior Art Reference Ogino expressly discloses an embodiment that meets the TTL total track length EFL ratio limitation or that one of skill would be motivated to combine Ogino with Chen to meet claims 14 and 15.

[00:00:55] Speaker 01:
I'd like to discuss first the Ogino anticipation and then move to anticipation and then move to obviousness.

[00:01:03] Speaker 01:
The board's finding that Ogino expressly discloses a total track length of 4.387 millimeters and therefore less than the EFL or effective focal length is not supported by substantial evidence and it does not meet the board's construction.

[00:01:22] Speaker 01:
The board's construction for total track length specifically requires a distance to an actual sensor or film.

[00:01:31] Speaker 01:
That's at appendix 18.

[00:01:32] Speaker 01:
In finding that, the board specifically rejected petitioner's proposal that total track length be defined as a distance to include a theoretical image plane independent of the sensor or film.

[00:01:46] Speaker 01:
At appendix 18, the board found we are not persuaded

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that the evidence supports petitioner's constructions, which encompass a TTL measure with respect to an image plane that is independent or absent a corresponding sensor.

[00:02:03] Speaker 01:
Therefore, to show TTL, petitioner and the board have to show that Ogino expressly discloses a distance to an actual sensor.

[00:02:14] Speaker 01:
Ogino example 6 suggests that you can remove the cover glass

[00:02:21] Speaker 01:
but does not tell where to place the sensor if you do.

[00:02:26] Speaker 01:
So example six has a cover glass and with the cover glass it's undisputed.

[00:02:33] Speaker 01:
It has a total track length of 4.489 that's greater than EFL and does not meet the limitation.

[00:02:41] Speaker 01:
It is true that Ogino says at column five that you can remove the cover glass

[00:02:49] Speaker 01:
and thereby reduce the total length, but it does not say where to put the sensor.

[00:02:55] Speaker 01:
And that's important because the record evidence is that where you put the sensor is a design choice.

[00:03:05] Speaker 01:
It can be at an ideal image plane or it may not be.

[00:03:10] Speaker 01:
And that's at appendix 14 where the board specifically found that relying on evidence.

[00:03:16] Speaker 01:
So, Ogino does not disclose

[00:03:19] Speaker 01:
where to put the sensor.

[00:03:24] Speaker 01:
It just says that you can remove the sensor.

[00:03:28] Speaker 01:
The board relied on the teaching of TL, total length, which is a defined term in Table 11 of Ogino.

[00:03:40] Speaker 01:
And Your Honor, can I just verify that everyone hears me?

[00:03:43] Speaker 03:
Yeah, I know you're getting silent.

[00:03:46] Speaker 03:
It's worthwhile to check.

[00:03:47] Speaker 03:
Can you explain or point to where in the record the, is this the concept of back focal length that was used to calculate if the glass plate, glass cover was missing, what would happen to the focal length to

[00:04:10] Speaker 03:
Or maybe I've got the concepts confused, but the concept of the error converted value that then contributes to the calculation of the TTL that the board used.

[00:04:24] Speaker 01:
Thank you, Judge Stoll.

[00:04:25] Speaker 01:
So this is in Ogino at Appendix 562 at Column 14, and this is where

[00:04:34] Speaker 01:
the Fujifilm reference, the Ogino reference, introduces the concept of back focal length being an air-converted value for back focal length and using that value in the calculation of total lens length TL.

[00:04:51] Speaker 01:
So back focal length is just a specifically defined term as an air-converted value.

[00:05:01] Speaker 01:
It does not tell you where to put the sensor.

[00:05:04] Speaker 01:
There's no record evidence from Saucion, their expert, or anywhere else saying that one of Skill in the Art understands that this is a teaching to put the sensor there.

[00:05:14] Speaker 01:
It's just a defined value.

[00:05:18] Speaker 01:
And back focal length, this air converted value happens to be just an idiosyncrasy of the way Fujifilm, the assignee of the Ogino patents, happened to define total length.

[00:05:31] Speaker 01:
They are the only ones that we were able to find.

[00:05:34] Speaker 01:
Fujifilm has several patents that use back focal length with an air converted value.

[00:05:39] Speaker 01:
No one else seems to, and there's no evidence that that's a known value by one of skill in the art.

[00:05:46] Speaker 01:
This is not a term of art.

[00:05:48] Speaker 03:
And you're saying, this is Judge Toronto again, you're saying that there's no connection between the air converted value and

[00:06:01] Speaker 03:
the, an embodiment in which the, not a expressly specified embodiment, but the taut embodiment of what's in Ogino, but minus the glass cover.

[00:06:20] Speaker 03:
There's just no relationship between the air-converted value and the glassless embodiment.

[00:06:27] Speaker 01:
That's exactly right, Judge Toronto.

[00:06:28] Speaker 01:
There's no teaching in Ogino that the image plane is at the back, at the air converted value.

[00:06:37] Speaker 01:
There's no teaching that that's where you would place it if you were to remove the cover glass.

[00:06:42] Speaker 01:
There's just no relationship.

[00:06:44] Speaker 01:
There's nothing in Ogino or the record tying the sensor location to that air converted value.

[00:06:52] Speaker 01:
And specifically, I want to point you to column five,

[00:06:56] Speaker 01:
which is the only teaching of an embodiment that you can remove the cover glass.

[00:07:02] Speaker 01:
So this is in Ogino at Appendix 558, Column 565 through Column 6 to Line 2.

[00:07:10] Speaker 01:
And it says, alternatively, an effect similar to the optical member CG may be given to the film, fifth lens or the like, by applying a coating to the fifth lens, L5 or the like, without using CG,

[00:07:25] Speaker 01:
thereby it's possible to reduce the number of components and to reduce the total length.

[00:07:31] Speaker 01:
So it does make that suggestion, but it does not tell you where to put the sensor.

[00:07:38] Speaker 01:
And specifically, it does not teach if you did remove the cover glass.

[00:07:43] Speaker 01:
It doesn't actually disclose an embodiment that applies the coding to L5 or the like, which would affect the optical properties and may affect where you put the sensor.

[00:07:53] Speaker 01:
And so it's a suggestion, but there's not a teaching.

[00:07:56] Speaker 01:
There is no disclosure of putting the sensor at 4.387 millimeters from the front of the L1.

[00:08:06] Speaker 01:
Instead, there's just this defined term TL, which is undisputedly different than the total track length defined by the board.

[00:08:17] Speaker 01:
How do we know that?

[00:08:18] Speaker 01:
Because Table 11,

[00:08:22] Speaker 01:
is the table for example 6 which has a cover glass and the TL, the defined term with the air converted value is 4.387 with the cover glass and the TTL for the cover glass is 4.489 and that's obtained by summing all of the distances in the DI column.

[00:08:49] Speaker 01:
And that's undisputed.

[00:08:50] Speaker 03:
Oh, no, I'm sorry.

[00:08:51] Speaker 03:
All of them or just up through 11?

[00:08:54] Speaker 01:
No, no, no.

[00:08:55] Speaker 01:
All of them.

[00:08:56] Speaker 01:
So for TTL, that's true.

[00:09:00] Speaker 01:
And that's shown in the record at, I think it's 5-0.

[00:09:17] Speaker 01:
So

[00:09:18] Speaker 04:
Council, this is Judge Stoltz.

[00:09:20] Speaker 04:
I just wanted a clarification there, because I got confused when you said that's true.

[00:09:24] Speaker 04:
Are you saying you measure from 2 to 13 for the TTL?

[00:09:31] Speaker 01:
Yes.

[00:09:32] Speaker 01:
So for the TTL, it has to be the distance to the image plane R14.

[00:09:44] Speaker 01:
And so that is distance.

[00:09:46] Speaker 01:
which is the distance between R13 and R14.

[00:09:50] Speaker 01:
And so that is the distance.

[00:09:55] Speaker 01:
So that is true for TTL, which if you look at Appendix 462, for example, this is in the Saucion Declaration that shows how you measure total track length.

[00:10:08] Speaker 01:
And the total track length goes from the object side all the way to the image plane.

[00:10:13] Speaker 01:
And so those distances

[00:10:15] Speaker 01:
are the ones D2 through D13 and that gives you 4.489 which is bigger than the EFL and that's absolutely undisputed that that's how you measure TTL

[00:10:30] Speaker 01:
for example 6 with the cover glass.

[00:10:32] Speaker 04:
Counsel, this is Judge Stoll again.

[00:10:34] Speaker 04:
So just to clarify, I think you're just saying your argument, the same argument you've said before, which is there's no teaching of moving the image plane to where R13 is when you remove the cover glass, right?

[00:10:47] Speaker 04:
I think that's what you're saying.

[00:10:49] Speaker 01:
That is correct.

[00:10:51] Speaker 04:
OK.

[00:10:53] Speaker 03:
And can I just ask why is

[00:10:57] Speaker 03:
D1 not included in the summation?

[00:11:02] Speaker 01:
D1, I went through this at the oral argument with the PTAB, and there was a technical reason for it.

[00:11:08] Speaker 01:
That's not part of the object side.

[00:11:12] Speaker 01:
D2.

[00:11:13] Speaker 03:
Even though it's a piece of lens plastic or glass sticking out toward the object?

[00:11:20] Speaker ?:
Yeah.

[00:11:21] Speaker 01:
There is some technical reason that's not relevant to our dispute that the object side lens goes from D2, the distance D2 to D13.

[00:11:33] Speaker 03:
And so in Table 11, the negative figure for DI for SI1 is just ignored?

[00:11:41] Speaker 01:
That is correct.

[00:11:43] Speaker 01:
Okay.

[00:11:45] Speaker 01:
Your honors, if I could just take one minute on the obviousness combination of Ogino and Chen.

[00:11:51] Speaker 01:
This is quintessential classic hindsight motivation.

[00:11:55] Speaker 01:
There is nothing pointing one of skill in the art a priori to modify lens two to be meniscus.

[00:12:06] Speaker 01:
Ogino lens two is biconcave.

[00:12:09] Speaker 01:
It teaches that it's biconcave for very good reasons and there's no

[00:12:15] Speaker 01:
there's no teaching that would suggest one skill in the art to move it.

[00:12:19] Speaker 01:
The proposed modification, motivation is to reduce vignetting or improve illumination.

[00:12:25] Speaker 01:
There is no recognition in Ogino that those are a problem.

[00:12:31] Speaker 01:
There is no recognition in or teaching in Chen that L2 is meniscus or that the shape of L2 being meniscus or otherwise

[00:12:43] Speaker 01:
reduces vignetting, improves elimination, or anything else.

[00:12:47] Speaker 01:
There is nothing pointing the person of skill in the art to modify lens 2 specifically to make it meniscus.

[00:12:57] Speaker 04:
Go ahead.

[00:12:58] Speaker 04:
This is Judge Stoll.

[00:12:59] Speaker 04:
If I remember correctly, the board here relied on Apple's expert testimony.

[00:13:05] Speaker 04:
Isn't that right?

[00:13:05] Speaker 04:
I mean, why doesn't that provide

[00:13:09] Speaker 04:
substantial evidence.

[00:13:10] Speaker 04:
And there were two reasons in the board's opinion, right?

[00:13:13] Speaker 04:
The vignetting and also reducing aberration.

[00:13:17] Speaker 01:
Yes, but those are both post hoc rationalization.

[00:13:22] Speaker 01:
So what happened here is Dr. Sasse and their expert made the modification to meet the claim limitation, then compared it to the original, found that it was better in these regards and said, yes, it's better and therefore one would be motivated to do it.

[00:13:38] Speaker 01:
What critically what's missing is there's nothing that Saucion points to or that Apple points to or that the board points to in either Chen or Ogino that would tell Dr. Saucion or one of skill in the art that making that modification would reduce vignetting, would reduce aberrations, or would improve illumination.

[00:14:00] Speaker 01:
Those all happened when you follow the recipe set forth in the claims.

[00:14:07] Speaker 01:
because it was a good invention, but nothing in Chen or Ogino would point you to do that.

[00:14:13] Speaker 01:
And if you didn't have the roadmap of the claims to do it, he wouldn't have been able to go back and confirm it.

[00:14:20] Speaker 01:
That's post hoc rationalization, quintessential hindsight, not motivation to combine.

[00:14:26] Speaker 01:
There's nothing in Chen or Ogino that would lead one of skill and the art to do that, to make that particular combination, to do that.

[00:14:33] Speaker 01:
There's no teaching that making it meniscus improves

[00:14:37] Speaker 01:
Illumination reduces vignetting or aberration.

[00:14:41] Speaker 01:
None of the reasons that they talked about have anything to do with motivation to combine.

[00:14:46] Speaker 01:
They're all just recognitions that it's better, but nothing pointing one of skill in the art to make that combination and try it in the first place.

[00:14:58] Speaker 03:
Any further questions at this point?

[00:15:02] Speaker 03:
Hearing none, we'll hear from Ms.

[00:15:05] Speaker 03:
Oliver then.

[00:15:07] Speaker 03:
Thank you.

[00:15:09] Speaker 05:
Good morning, Your Honor, and may it please the Court.

[00:15:15] Speaker 05:
Angela Oliver on behalf of Apple.

[00:15:17] Speaker 05:
The Court should affirm the Board's decision because the appeal is not eligible for Arthrex and substantial evidence supports the Board's decision.

[00:15:26] Speaker 05:
Regarding the Arthrex issue, it is Apple's understanding that the government has appeared to address this issue.

[00:15:31] Speaker 05:
So unless the Court has questions for Apple, we will rest on our briefing as to the Arthrex issue.

[00:15:38] Speaker 05:
Turning to the merits of the board's analysis, the court should affirm the board's unpatentability determination.

[00:15:45] Speaker 05:
Both of Corp.

[00:15:46] Speaker 05:
Atomic's challenges to the board's decision simply disagree with the board's factual findings.

[00:15:51] Speaker 05:
There's no argument that the board applied the correct law, nor are there arguments that the board missed.

[00:15:55] Speaker 03:
Well, the argument, just let's get to the specifics.

[00:15:59] Speaker 03:
I'm not sure I'm going to summarize this correctly.

[00:16:03] Speaker 03:
On the anticipation question, not the initial question about figure six and the TTL, I'm taking away the essence of Mr. Fenster's argument that the TL in Inogino is not the same thing as the TTL, that in order for you to get to the

[00:16:29] Speaker 03:
number you need that you have to have an actual movement of the sensor and whatever Ogino is teaching about the air conversion, it's not actually teaching about moving the sensor and so you just can't get a, as

[00:16:57] Speaker 03:
construed TTL out of the idea that is in Ogino that you don't need the cover glass.

[00:17:07] Speaker 05:
Yes, Your Honor, that is Co-op Lutonics' argument.

[00:17:09] Speaker 03:
What's wrong with that?

[00:17:10] Speaker 05:
Ultimately, the board did specifically find that the calculations that are done based on table 6, figure 6 and table 11 show the specific distance that the image sensor or plane would move.

[00:17:24] Speaker 05:
That's at Appendix page 26 and the board reiterates it at page 29.

[00:17:29] Speaker 05:
So that's the board's ultimate conclusion as to why this meets the TTL is that that sensor does move and Ogino tells us precisely how much it does move.

[00:17:37] Speaker 05:
But there's a lot to unpack there because it all relates to Figure 6 and Table 11 and the specific way that you calculate the values based on these tables.

[00:17:48] Speaker 05:
So if the court would bear with me, in the red brief, we've included these two tables back to back on page seven and eight.

[00:17:55] Speaker 05:
So it's easy to reference the two if that's helpful for the court.

[00:17:59] Speaker 05:
But essentially, as the court heard court platonics argue, court platonic position is that you would be required to sum all of the rows in table 11 from D2 through D13.

[00:18:13] Speaker 05:
And you can see in figure six that that would take us essentially from the left side of figure six

[00:18:18] Speaker 05:
all the way to image plane 100.

[00:18:20] Speaker 03:
And by the way, you agree for reasons I have not yet understood, that D1 is to be ignored?

[00:18:28] Speaker 05:
That's correct, Your Honor.

[00:18:29] Speaker 05:
Both parties agree that the calculation should begin with D2.

[00:18:34] Speaker 05:
The dispute lies with where the calculation should end.

[00:18:37] Speaker 05:
And so you can see from Figure 6 that the CG element here is the cover block element.

[00:18:44] Speaker 05:
So it's expressly shown in Figure 6.

[00:18:46] Speaker 05:
And so choroprotonics argument would sum D2 through D13, the distances all the way to that image plane 100, which is where the image sensor is.

[00:18:56] Speaker 05:
Now the problem with that argument is that figure 6 is not the only embodiment of this example 6 that is disclosed in Ogino.

[00:19:05] Speaker 05:
So the board specifically found that Ogino discloses an embodiment or an implementation of figure 6 that does not include that cover glass.

[00:19:14] Speaker 05:
And choroprotonics expert admitted

[00:19:16] Speaker 05:
that when you have an embodiment that does not include the cover glass, you do not count the distance of the cover glass in the TTL measurement.

[00:19:25] Speaker 05:
The board cited this at appendix page 25, citing the expert's testimony at appendix page 1916.

[00:19:33] Speaker 05:
And so when you look at this and you remove the cover glass, what you do mathematically to remove the cover glass is you're replacing glass with air.

[00:19:45] Speaker 05:
And so the calculation involves using the index of refraction of glass versus that of air because the two materials, of course, bend light in different ways.

[00:19:56] Speaker 05:
And so you use this calculation to convert the distance that you would have used when you were using glass there to the distance that you now need to use for air.

[00:20:05] Speaker 05:
And the board explains this calculation in its opinion at Appendix 22.

[00:20:12] Speaker 05:
There's a footnote there.

[00:20:13] Speaker 05:
The board actually explained exactly how this air-converted back focal length of value is calculated.

[00:20:19] Speaker 05:
As I've explained here, they cite the patent owner's response.

[00:20:23] Speaker 05:
And if the court looks to the patent owner's response there, you can see this is ultimately based on the testimony of core platronics expert, Dr. Moore, who explained this in detail at paragraph 66 of his declaration.

[00:20:36] Speaker 03:
And I'm sorry.

[00:20:37] Speaker 03:
So does Dr. Moore or your expert actually

[00:20:42] Speaker 03:
equate the mathematical conversion to a movement of the sensor?

[00:20:52] Speaker 05:
Yes, that is the ultimate effect of this because it eliminates, if you look at Figure 6, it eliminates the cover glass, replaces it with air.

[00:21:04] Speaker 05:
And so the values here are different.

[00:21:06] Speaker 05:
And so the expert explained that.

[00:21:09] Speaker 03:
So the D figures, those are just plain old physical distances, right?

[00:21:15] Speaker 05:
That's correct, Your Honor.

[00:21:17] Speaker 03:
So to say that you're doing a mathematical construct based on difference in refraction between air and glass is now doing something

[00:21:30] Speaker 03:
I took it right at the heart of his argument, of Mr. Henser's argument, was that that just isn't the same as, and there was no expert testimony to say it was the same as moving R-14 forward a little bit, or anyway, changing its location.

[00:21:56] Speaker 03:
So where is the testimony that says,

[00:21:59] Speaker 03:
this air conversion value calculation is the moving of the ultimate image plane or sensor.

[00:22:12] Speaker 03:
I don't think anything turns on the distinction, does it?

[00:22:17] Speaker 05:
No, there's no distinction between those two.

[00:22:21] Speaker 05:
Column 5 of Ogino explains that the sensor is disclosed at the image plane.

[00:22:28] Speaker 03:
So where is the evidence that says this mathematical calculation equates to moving the sensor?

[00:22:36] Speaker 05:
Your Honor, I'll try to find a concise statement of that overall conclusion.

[00:22:41] Speaker 05:
But I think it is a direct effect of every bit of expert testimony that is in the record.

[00:22:46] Speaker 05:
Because as Your Honor suggested, these are true distances between the two.

[00:22:52] Speaker 05:
And the experts explained that when you remove the cover glass, you change what you're adding to calculate the TTL value.

[00:23:00] Speaker 05:
You would then, instead of adding D11, D12, and D13 at the end, you would add D11, the air conversion, and D13.

[00:23:11] Speaker 05:
And that is the back focal length value that is disclosed at the top of Table 11.

[00:23:15] Speaker 05:
And that, when you add D2 through D10 plus that BAT focal length value, that gives you the 4.387 number, that TL value, at the top of Table 11.

[00:23:27] Speaker 05:
And, Your Honor, if I can find the ultimate conclusion regarding

[00:23:33] Speaker 05:
regarding that being moving the image plane?

[00:23:36] Speaker 03:
Well, I know the board said we find it, but I'm not, I guess I'm looking for the underlying evidence.

[00:23:41] Speaker 03:
I don't think Mr. Fenster disputes that the board said that, just that there's, whether there's evidentiary support.

[00:23:50] Speaker 05:
Sure.

[00:23:50] Speaker 05:
So, the board relied on paragraph 48 of Dr. Saucion's declaration in multiple places in the analysis.

[00:24:02] Speaker 05:
It's a very long paragraph, and so I suspect the ultimate conclusion is in here, but I can't point the court to the precise statement at the moment.

[00:24:15] Speaker 05:
But it is, there's no other conclusion that can be reached when you look at the... Counsel, this is Judge Stoll.

[00:24:23] Speaker 04:
Is the part that you're looking for at page appendix 463 at the bottom, the bottom of what appears to be a chart,

[00:24:34] Speaker 04:
starting with the phrase based on this?

[00:24:38] Speaker 05:
Yes, Johanna.

[00:24:39] Speaker 05:
This certainly supports the ultimate conclusion because this shows that in the implementation without the cover glass, that is how you calculate the total TTL value.

[00:24:48] Speaker 05:
It's the sum of D2 through D10 plus this error converted value, the back focal length.

[00:24:55] Speaker 05:
So again, there's really no other conclusion that can be reached from this.

[00:24:58] Speaker 05:
based on the expert testimony that we have, which is clearly supported by Table 11.

[00:25:05] Speaker 03:
And I think you said something, if I understood you correctly, to the effect that Dr. Moore, core photonics expert, said something similarly supportive.

[00:25:17] Speaker 03:
Is that right?

[00:25:18] Speaker 05:
Yes, that's correct.

[00:25:19] Speaker 05:
And I believe that's at page 1916 of the appendix.

[00:25:24] Speaker 03:
That's in the deposition.

[00:25:25] Speaker 05:
Yes, that's correct.

[00:25:26] Speaker 05:
And so he explains here that in the implementation without a cover glass, there is no need to include the cover glass value that links to the cover glass in the TTL measurement.

[00:25:38] Speaker 05:
And so again, that further supports exactly what Apple's expert has explained here.

[00:25:45] Speaker 03:
Can you turn to the motivation portion, the combination of Ogino and Chen and why

[00:25:54] Speaker 03:
without hindsight, a skilled artisan would have been motivated to use a meniscus in order to get improved qualities of either the two or three sorts that are at issue.

[00:26:11] Speaker 05:
Yes, Your Honor.

[00:26:12] Speaker 05:
So turning to that issue, this analysis is not motivated by hindsight.

[00:26:17] Speaker 05:
In fact, we can see clearly from the board's analysis step by step that there was a problem that was identified

[00:26:24] Speaker 05:
in Ogino and a solution that is provided by changing the shape of the second lens to a meniscus lens using the lens system of Chen.

[00:26:35] Speaker 05:
So at the outset, at appendix page 38, the board explained that the two lens systems of Ogino and Chen are very similar at the outset.

[00:26:45] Speaker 05:
You can see this even just by comparing the two figures of the two lens systems to see that the shapes of each lens in the entire system are very similar.

[00:26:55] Speaker 05:
So these are not two arbitrary selected lenses.

[00:26:57] Speaker 05:
These are very similar overall.

[00:27:00] Speaker 03:
So what is the evidence that a person of skill in the art would have thought that using a meniscus at the relevant place would help to solve these recognized problems?

[00:27:24] Speaker 05:
Okay, so if the court would turn with me to Appendix page 493, this is Dr. Saucion, Apple's expert ray trace, showing the lens in Ogino before it is modified.

[00:27:38] Speaker 05:
And you can see from this diagram on Appendix 493 that there are two issues in Ogino as it is.

[00:27:46] Speaker 05:
Towards the top left, you can see vignetting.

[00:27:48] Speaker 05:
Essentially, there are light rays that are not passing through that second lens.

[00:27:53] Speaker 05:
And you can see that there's an aberration at the top right of this image.

[00:27:58] Speaker 05:
So again, here's two problems that exist in Ogino.

[00:28:01] Speaker 05:
And you can see that the vignetting, for example, is being caused by this second lens.

[00:28:07] Speaker 05:
So with that in mind, the court will turn to appendix page 496, just a page two later.

[00:28:14] Speaker 05:
This is the system of Chen.

[00:28:16] Speaker 05:
Again, you can see overall it's a very similar lens system.

[00:28:19] Speaker 05:
But the difference is that that second lens

[00:28:22] Speaker 05:
Your Honor, I see my time is expired.

[00:28:24] Speaker 05:
May I please continue?

[00:28:26] Speaker 05:
Yes.

[00:28:26] Speaker 05:
Thank you.

[00:28:28] Speaker 05:
This, here you can see the second lens in Chen.

[00:28:30] Speaker 05:
There is no vignetting that is occurring in that second lens.

[00:28:34] Speaker 05:
You can see the shape of that is what is, a procedure would have understood that that would be worth trying to fix the problem because it's not a problem in Chen, whereas it is in Ogino.

[00:28:45] Speaker 04:
And then finally, this is Judge Stoll.

[00:28:47] Speaker 04:
I just want to ask you a quick question.

[00:28:48] Speaker 04:
One of the things I hear your opposing counsels be saying is that, you know, there's nothing that would suggest to APOSA that these problems that are identified at page A493 would exist, in fact, in OGNO.

[00:29:01] Speaker 04:
And so, except for, you know, maybe, you know, hindsight analysis or trying to come up with reasons to want to improve OGNO for litigation inspired.

[00:29:10] Speaker 04:
So, what's your response to that?

[00:29:12] Speaker 04:
Is your position that APOSA would look at OGNO and understand that these kind of problems are going to exist?

[00:29:20] Speaker 05:
Yes, absolutely, Your Honor.

[00:29:21] Speaker 05:
And this is clear from the testimony of Dr. Saucian.

[00:29:25] Speaker 05:
As the board found, one of skill in the art uses these sort of lens design software programs through ZMAX to understand and tweak lenses and see how they work.

[00:29:34] Speaker 05:
And this, as soon as you put this into your computer, as seen at appendix page 493, you see that there are two clear issues in the Ogino lens.

[00:29:43] Speaker 05:
And so that is a problem that a placenta may want to adjust the lens and fix that.

[00:29:50] Speaker 05:
Now, of course, Co-Platonics has argued in its briefing that vignetting may be desirable in some circumstances.

[00:29:56] Speaker 05:
But under this court's case law, any motivation to combine is sufficient.

[00:30:01] Speaker 05:
And here, a placenta would have known that there are problems, there are instances where you do not want vignetting.

[00:30:07] Speaker 05:
Specifically here, the board explained, and based on expert testimony, that Ogino has a relative illumination of less than 50%.

[00:30:15] Speaker 05:
And that was understood to not be sufficient for cell phone cameras.

[00:30:20] Speaker 05:
And so because of that, this vignetting is what is causing that.

[00:30:23] Speaker 05:
And the board explained this in cited expert testimony.

[00:30:26] Speaker 05:
And then the board explained, again citing the testimony at appendix page 497, that once you make this change to the meniscus lens,

[00:30:34] Speaker 05:
It fixes the vignetting, it fixes the aberration, and it increases the relative illumination.

[00:30:40] Speaker 05:
So that is precisely why Fasita would have looked at these, not in hindsight, but with respect to specific problems that could be improved, and particularly with respect to cell phone lenses.

[00:30:53] Speaker 03:
Senator, I understand my... Can you just clarify?

[00:30:57] Speaker 03:
So let's look back at, I think it was 493, the picture.

[00:31:01] Speaker 03:
Can you walk through

[00:31:04] Speaker 03:
what I'm supposed to be seeing in the little red box labeled vignetting.

[00:31:10] Speaker 05:
Yes, so towards the top of that box there are two, there's actually three green lines, the top three green lines.

[00:31:18] Speaker 05:
You can see that they

[00:31:20] Speaker 05:
get stuck after that second lens.

[00:31:22] Speaker 05:
They do not continue past the second lens through the third, fourth, and fifth as the rest of the green lines do.

[00:31:28] Speaker 05:
They stop there.

[00:31:29] Speaker 05:
And that's the definition of vignetting.

[00:31:32] Speaker 05:
Essentially, it means that light rays cannot pass through the edge of a lens.

[00:31:39] Speaker 03:
OK.

[00:31:40] Speaker 03:
And I'm supposed to see that because those three green lines stop

[00:31:46] Speaker 03:
two of them before they get to lens three, one of them, you know, a millimeter inside lens three.

[00:31:53] Speaker 05:
Yes, that's correct.

[00:31:54] Speaker 03:
And Dr. Saucion explained... But they both get through lens two, right, according to the picture?

[00:32:00] Speaker 05:
Well, I'm not sure that that's perfectly accurate.

[00:32:02] Speaker 05:
Dr. Saucion explains this in text later on this page.

[00:32:08] Speaker 05:
So he explains that some of the rays refracted by the second lens don't pass through the entire lens.

[00:32:13] Speaker 05:
even though maybe perhaps one of them seems to go a millimeter into lens three, the others certainly do not.

[00:32:19] Speaker 05:
And in any event, that's the overall effect of the vignetting, that they cannot pass through further, and it decreases the overall relative illumination, which is a specific problem with respect to cell phone camera.

[00:32:33] Speaker 03:
Okay.

[00:32:33] Speaker 03:
Any further questions from the panel?

[00:32:38] Speaker 03:
Hearing none, Mr. Fenster, you'll have your rebuttal time restored.

[00:32:43] Speaker 01:
Thank you, Your Honors.

[00:32:43] Speaker 01:
So first, with respect to Ogino anticipation, the TTL defines the distance to the sensor.

[00:32:53] Speaker 01:
There is no disclosure.

[00:32:54] Speaker 01:
Where is the sensor?

[00:32:56] Speaker 01:
Where in Ogino does it say that the sensor is at the air-converted value?

[00:33:01] Speaker 01:
There is nothing in Ogino that says that, nor does Saucion.

[00:33:05] Speaker 01:
And that is the critical disclosure.

[00:33:08] Speaker 01:
It says that you can remove the cover glass and can reduce the total length, but it doesn't say where to move the sensor to.

[00:33:16] Speaker 01:
The portions of Dr. Saucion's declaration do not support it.

[00:33:23] Speaker 01:
So at paragraph 48, we start at appendix 463 where Judge Stoll pointed counsel to.

[00:33:32] Speaker 01:
It does say the bare conclusion that it's a track length, but it does not say

[00:33:37] Speaker 01:
that's where you put the sensor.

[00:33:39] Speaker 01:
And more importantly, I want to point you to, there's no support for Dr. Sassian's statement.

[00:33:46] Speaker 01:
If you go to 464 at the bottom, he says, this total track length of 4.387 was confirmed when Ogino's example 6 was entered in the lens design program's DMACC section 9.

[00:34:00] Speaker 01:
But then if you go to section 9, which is at

[00:34:06] Speaker 01:
Exhibit appendix 502.

[00:34:09] Speaker 01:
This is the ZMAX that he's relying on, and it shows the TOTR, which is the total track length, of 4.489.

[00:34:17] Speaker 01:
Nothing in here shows 4.387.

[00:34:20] Speaker 01:
Dr. Saucion's declaration does not say that the sensor is moved there, and his support does not support that.

[00:34:29] Speaker 03:
I'm sorry, where on 502 do I find the 4.489?

[00:34:33] Speaker 01:
Yes, it's very hard to read, Your Honor.

[00:34:34] Speaker 01:
It's bottom right, TOTR, and that's undisputed in the record that that is the total track length, and he admitted that in deposition.

[00:34:45] Speaker 01:
If Your Honor would indulge me one minute on the Ogino-Chen motivation.

[00:34:53] Speaker 03:
Okay, really one minute.

[00:34:55] Speaker 01:
Okay, so what

[00:34:59] Speaker 01:
What council points to with the ray tracing and the reduced illumination and the problem of vignetting are not problems recognized in Ogino.

[00:35:08] Speaker 01:
Nothing in Ogino describes that it has a relative illumination less than 50% or that there's a vignetting problem.

[00:35:15] Speaker 01:
This was after the fact analysis that Dr. Sossian then did.

[00:35:20] Speaker 01:
Once finding those problems, there isn't any teaching in Chen that

[00:35:26] Speaker 01:
a meniscus shape reduces vignetting, improves illumination, or aberrations.

[00:35:32] Speaker 01:
And so there's nothing motivating that combination.

[00:35:34] Speaker 01:
Rather, what he did is he made the modification, plugged it into Zmax, found that it fixed it using the inventor's recipe of the O32, and that's in proper hindsight.

[00:35:46] Speaker 01:
There was no motivation to combine it in the first place, because there's no recognition in Ogino of the problems.

[00:35:53] Speaker 01:
and no teaching in Chen that the solution has anything to do with the shape of L2, especially when all of the teaching in Ogino S2 says it's biconcave for a reason and has important benefits.

[00:36:08] Speaker 03:
Okay.

[00:36:09] Speaker 03:
Thank you.

[00:36:09] Speaker 03:
Thank you, Mr. Fenster, and thanks to... Oh, I'm sorry.

[00:36:13] Speaker 03:
We have Ms.

[00:36:15] Speaker 03:
Rush.

[00:36:16] Speaker 03:
Do we have Ms.

[00:36:17] Speaker 02:
Yes.

[00:36:18] Speaker 03:
Good morning, Your Honor.

[00:36:19] Speaker 03:
I'm sorry.

[00:36:20] Speaker 02:
That's okay.

[00:36:21] Speaker 02:
I just wanted to, I was going to intrude and just ask if I, if you did that intentionally, because I know... No, it was unintentional, but I guess on our threats, you know what our precedent is.

[00:36:31] Speaker 03:
You know that the Supreme Court in the next four weeks is likely to decide something.

[00:36:36] Speaker 03:
We know what your position is.

[00:36:37] Speaker 03:
Is there something to add?

[00:36:39] Speaker 02:
The only thing that I would add here, Your Honor, is that you said that this court is planning on issuing a written opinion in this case.

[00:36:45] Speaker 02:
addressing the Arthur X specifically mandate issue, we request that that decision be made presidential.

[00:36:54] Speaker 02:
We've prevailed on this, the mandate issue specifically in a series of non-precedential decisions, document security, followed by Infinium, and followed by the earlier Curfotonics case that Apple's counsel provided in a 2018 letter yesterday.

[00:37:09] Speaker 02:
And we assumed that those decisions were non-prec because they were based in light of this court's precedent in Caterpillar.

[00:37:15] Speaker 02:
but there does seem to be a misunderstanding of the mandate rule and the purpose of the mandate and to the extent that this court would clarify that.

[00:37:23] Speaker 02:
I think it would be helpful not just in these cases but in other cases going forward.

[00:37:27] Speaker 02:
There aren't a lot of cases addressing that issue except for the 9th Circuit case that we cited in our brief and an 11th Circuit case.

[00:37:35] Speaker 02:
But we think it would be nice to have some clarity on that.

[00:37:38] Speaker 03:
Okay.

[00:37:40] Speaker 03:
Now I will say thanks to all counsel on the case today.

[00:37:44] Speaker 02:
Thank you.