[00:00:11] Speaker 02: Be seated please. [00:00:16] Speaker 02: Our final case this morning is number 20-2185, Energetic AB vs. Murata Manufacturing Company Limited, Mr. Shabos. [00:00:31] Speaker 03: Good morning, Your Honor. [00:00:38] Speaker 03: Go ahead. [00:00:40] Speaker 03: This is an appeal from the board's finding that 349 patent was anticipated and obvious over the Nozé reference. [00:00:52] Speaker 03: The board's finding depended upon the fact that it construed the term beam. [00:00:57] Speaker 03: The term resided in the claims at issue to include both rigid beams and beams that were configured today. [00:01:05] Speaker 03: Respectfully, this construction [00:01:09] Speaker 03: specification in which the claims emanate from. [00:01:14] Speaker 03: This court has ruled in Phillips that the specification is the single best tried to determine the scope of claim terms and claims. [00:01:25] Speaker 03: In the 3.9 patent, the patent describes a gyro, simply a device that determines whether or not there's a problem. [00:01:34] Speaker 02: Let me tell you what my problem is. [00:01:36] Speaker 02: You look to the specification. [00:01:38] Speaker 02: And all the discussion about bending in the specification talks about bending in a preferential direction. [00:01:48] Speaker 02: And yet that's not the claim construction that you want to give the beam. [00:01:53] Speaker 02: You don't say that it has to bend in a preferential direction. [00:01:57] Speaker 02: You just say it has to bend, right? [00:02:01] Speaker 02: So I don't see how the specification supports the construction that you're giving it. [00:02:09] Speaker 02: as opposed to the more limited construction that it has to bend in a preferential direction. [00:02:16] Speaker 02: And if that's the case, we look at the claim language and the claim language about bending in a preferential direction is eliminated from claim 20. [00:02:29] Speaker 02: It's in claim 1 but not in claim 20. [00:02:34] Speaker 02: So I'm just [00:02:36] Speaker 02: a little baffled as to how we can construe beam to include this specific requirement when, one, you don't even argue it, and two, there seems to be a deliberate change in claim language to eliminate the preferential bending notion. [00:02:56] Speaker 03: To answer that, Your Honor, in the specification, we do talk about how you can make it bend in a predetermined direction. [00:03:05] Speaker 03: and they speak of that throughout the specification. [00:03:09] Speaker 02: They also, however, they talk about- And every reference to bending in the specification talks about bending in a preferential direction or the soft direction or whatever it is. [00:03:19] Speaker 02: It doesn't talk about the general concept of bending, right? [00:03:24] Speaker 03: I believe it does, Your Honor. [00:03:25] Speaker 03: If you look at the general concept, and I, and let me direct you, and I apologize, let me direct you to this, it discusses [00:03:35] Speaker 03: If you go to, I'd say your honor, actually your honor, I believe that yes, I would have to agree with you. [00:03:52] Speaker 03: The specification does disclose consistently the predetermined direction. [00:03:57] Speaker 03: I would have to agree with you on that. [00:04:01] Speaker 03: However, I would say that if you, [00:04:03] Speaker 03: Look at the disclosure at column seven, line 54. [00:04:08] Speaker 03: It actually talks about, it does talk about the soft bending direction, but it also talks about how you create a torsional, you do create, the torsional rotation leads directly to an oscillating movement of the oscillating mass, substantially within the plane of the substrate. [00:04:28] Speaker ?: This disclosure does talk about the soft bending direction, but it explains that [00:04:33] Speaker 03: It's the bending that is the important part of this. [00:04:37] Speaker 03: That once the inertia mass means puts a proportional force on the beam, it is the beam that starts bending. [00:04:46] Speaker 03: And that the bending is the important piece of this. [00:04:51] Speaker 02: So you're not arguing that the word beam means having configured the bend in a preferential direction, right? [00:05:00] Speaker 03: I am not. [00:05:01] Speaker 03: No, we're not arguing that, Your Honor. [00:05:03] Speaker 03: If you look at also the way the claims are designated, you have a beam in the first instance in claim 20, and then in claim 28, you have the further limitation of the beam being in a preferential direction. [00:05:19] Speaker 03: We believe that that claim differentiation indicates that that would be a differentiator there. [00:05:31] Speaker 01: What about at column three, starting at line 23, there's a long discussion of another aspect of the invention, which doesn't at all refer to the beam bending. [00:05:46] Speaker 01: So when I look at the structure of what I'll just call your summary, the invention portion of your patent, beginning at column two, line one, it says, according to one aspect of this invention, [00:06:01] Speaker 01: And then it describes that particular aspect of the invention. [00:06:06] Speaker 01: And one piece of that aspect of the invention is a beam configured so that the beam bends most easily in one predetermined direction. [00:06:14] Speaker 01: But then column three, starting at line 23 and going down to the bottom of that column, it begins with according to another aspect of this invention. [00:06:25] Speaker 01: And that other aspect of the invention includes a beam. [00:06:29] Speaker 01: But it doesn't say anything about the beam being required to bend, let alone bend in a predetermined direction. [00:06:39] Speaker 01: And so to me, I see this patent describing two aspects of this invention. [00:06:45] Speaker 01: The one aspect being column two, where the beam bends. [00:06:48] Speaker 01: And then a second, another aspect in invention, in column three, where it just says, [00:06:55] Speaker 01: the beam without talking about the beam bending. [00:06:58] Speaker 01: And to me, the descriptions of those two aspects of the invention really track your two independent claims at the very end of the patent, claims 1 and 20, where again you have claim 1 with a beam that bends easily in one predetermined direction. [00:07:18] Speaker 01: And then you have claim 20 where you just say beam. [00:07:23] Speaker 01: Although you have embodiments described in the detailed description that talk about how in this embodiment, that embodiment, you have a beam going in a soft bending direction, what you have up front in the summary of the invention is [00:07:38] Speaker 01: communicating to everyone that you have two aspects of the invention, one with a beam that bends and one with just a beam. [00:07:45] Speaker 01: Why do we necessarily have to read this patent as redefining the word beam as always a beam that bends in the context here where you have one aspect of invention not talking about a beam that bends? [00:08:03] Speaker 03: Two points, Your Honor. [00:08:06] Speaker 03: If you look at that embodiment, it doesn't end at the end of claim three. [00:08:10] Speaker 03: It reads all the way over to claim four, continues to, if you go to claim four comp six, it first talks about preferably the means for applying, and excuse me for reading the pattern, for applying potentials to set capacitive plates are adapted to apply signals. [00:08:28] Speaker 03: So it talks about preferably these signals that you have means for applying signals. [00:08:33] Speaker 03: But then in the context of that embodiment, [00:08:35] Speaker 03: it then talks about the signals cause a seesaw motion of each inertial mass means about the connecting bar, the beam being configured so that the beam ends. [00:08:47] Speaker 03: And then most easily, and again, this is most easily at a creative time and direction. [00:08:52] Speaker 03: In addition, your honor, I would point out that Dr. Heddenstern, the inventor, supplied a [00:09:00] Speaker 03: a description of the two different types of gyros. [00:09:03] Speaker 01: If a sentence in a specification begins with preferably, does that mean always and must? [00:09:10] Speaker 03: No, Your Honor, but the sentence in the specification, the preferably, does not refer to the beam. [00:09:16] Speaker 03: It refers to the means that are going to excite the inertia mass. [00:09:21] Speaker 03: It's not saying the beam preferably bends, or preferably the beam will bend. [00:09:26] Speaker 03: In the structure of the sentence, I don't believe preferably carries across the con. [00:09:30] Speaker 03: that where we then start talking about the beam. [00:09:33] Speaker 03: I think that that preferably is a discussing, it's directly discussing the means in that case. [00:09:41] Speaker 01: So the word beam in claim one, by itself, does the word beam in claim one [00:09:49] Speaker 01: require a beam that bends? [00:09:51] Speaker 01: Or is it the rest of the words surrounding the word beam in claim one that actually call for a beam that bends that makes claim one require a bendable beam? [00:10:06] Speaker 03: Yes, Your Honor. [00:10:07] Speaker 03: But if you look at the limitation, there's a further limitation in claim one. [00:10:10] Speaker 03: It's in the predetermined direction in claim one. [00:10:15] Speaker 01: Right. [00:10:16] Speaker 01: But that's my point, that in claim one, [00:10:20] Speaker 01: Maybe the word beam by itself doesn't require a bendable beam. [00:10:26] Speaker 01: It's the surrounding words after the recitation of a beam where the claim one talks about the beam bending in a predetermined direction. [00:10:34] Speaker 01: Those are the words that require in claim one for the beam to be bending. [00:10:46] Speaker 03: I believe that there's nothing that necessarily indicates that you can't say that a beam is a configured bend. [00:10:52] Speaker 03: And then it bends in a predetermined direction and have that additional limitation. [00:10:56] Speaker 03: That's the first point. [00:10:57] Speaker 03: I think the second point, if we go to plane 20, plane 20 talks about the functionality in how this has to operate. [00:11:08] Speaker 03: And so it talks about generating a first oscillation. [00:11:12] Speaker 03: That first oscillation axis is the beam. [00:11:14] Speaker 02: What your expert says is that it won't work unless it bends in a preferential direction. [00:11:24] Speaker 02: At least that's the way I read what he said. [00:11:28] Speaker 02: And that's not the limitation you're arguing for. [00:11:31] Speaker 02: He doesn't support the idea that it just has to bend. [00:11:35] Speaker 02: It won't work unless it bends. [00:11:38] Speaker 02: He's got the more nuanced position. [00:11:41] Speaker 02: that it won't work unless it bends in a preferential direction, which is not a claim construction for which year are you. [00:11:49] Speaker 03: Respectfully, I believe that the expert in this case, in his expert declaration, pointed to the specification where he talks about the pending. [00:12:02] Speaker 03: But he talks about, in his declaration, he does talk about the fact that the beam must bend. [00:12:11] Speaker 03: not simply must bend in a predetermined direction, but it must bend. [00:12:15] Speaker 02: Where does he say that? [00:12:51] Speaker 03: One moment, Your Honor. [00:13:14] Speaker 03: He says in paragraph 42 of his declaration. [00:13:19] Speaker 02: Where is that? [00:13:21] Speaker 02: Where is it? [00:13:22] Speaker 03: What's the appendix site, please? [00:13:25] Speaker 03: Sorry, the appendix site. [00:13:26] Speaker 03: I apologize. [00:13:27] Speaker 03: That is appendix site 1170. [00:13:41] Speaker 03: In the context of no's, it's about half. [00:13:47] Speaker 03: In the context of notes, he says, in my opinion, the support beam of notes is that his position of notes cannot be flexible in pen, rather than notes being the opposite. [00:13:54] Speaker 03: There's no teacher's position of notes that the support beam is flexible in any way, let alone that the support beam is configured as pen. [00:14:02] Speaker 03: It's not necessarily the expert's opinion in this case that it has to bend in a predetermined direction. [00:14:09] Speaker 03: His opinion is bending is the sine qua non of [00:14:15] Speaker 03: a gyro within the scope of plane 20 being able to function. [00:14:21] Speaker 02: Well, he says that nose doesn't show bending at all, but where does he say that bending is essential to the invention as opposed to bending in the predetermined direction? [00:14:35] Speaker 03: You know, in that disclosure, Your Honor, he did not exactly say that. [00:14:40] Speaker 03: I would have to agree. [00:14:44] Speaker 02: Okay, go ahead. [00:14:46] Speaker 03: Your Honor, quite simply, it's generally been this court's position that there must be an inquiry into how an invention functions. [00:15:02] Speaker 03: At every turn, in every embodiment, this does talk about the beam then. [00:15:06] Speaker 03: Now, there are long disclosures about the general arrangement of the beam [00:15:13] Speaker 03: But it is not necessary, but it is true that every time it talks about when it finally gets to where the beam functions, how the beam functions, it talks about the beam bending. [00:15:24] Speaker 03: It does indeed say that beam, and this is correct, bends in a predetermined direction when discussing the functionality. [00:15:31] Speaker 03: But the claims themselves point to two aspects. [00:15:37] Speaker 03: One, the beam bending in a predetermined direction. [00:15:40] Speaker 03: and the other one, the theme existing, but in some way, when one of us go in the art reviews the claim and specification, they understand that the theme has to vet. [00:15:52] Speaker 03: Thank you. [00:15:55] Speaker 02: Okay. [00:15:56] Speaker 02: We'll give you two minutes for a bottle and we'll hear from Ms. [00:16:00] Speaker 02: Oliver. [00:16:01] Speaker 02: Just wait a moment. [00:16:03] Speaker 02: They'll move the monitor here. [00:16:46] Speaker 00: Good morning and may it please the court. [00:16:49] Speaker 00: Angela Oliver on behalf of Murata Manufacturing. [00:16:53] Speaker 02: There is no dispute that the plain meaning of beam... I just want to make sure Mr. Chavos is able to hear the argument. [00:16:59] Speaker 02: He's not on the screen anymore. [00:17:03] Speaker 02: Thank you, Your Honor. [00:17:04] Speaker 02: Okay, go ahead. [00:17:04] Speaker 00: Very good. [00:17:05] Speaker 00: There is no dispute that the plain meaning of the term beam includes beams that bend and beams that do not and we only depart from the plain meaning in two circumstances under this court's case law. [00:17:16] Speaker 00: lexicography, and disavowal. [00:17:19] Speaker 00: There's no basis for lexicography here. [00:17:21] Speaker 02: Well, not exactly. [00:17:22] Speaker 02: I mean, there are plenty of cases that, including Phillips, would say you've got to look to the specification to determine the meaning of the claim term. [00:17:30] Speaker 00: Absolutely, Your Honor. [00:17:31] Speaker 02: And it doesn't have to redefine it explicitly. [00:17:35] Speaker 02: There can be implicit. [00:17:37] Speaker 02: If this specification suggested that bending was a required characteristic, [00:17:45] Speaker 02: then you'd be in trouble. [00:17:48] Speaker 00: Your Honor, yes. [00:17:49] Speaker 00: For example, one of the instances in which this court has found disclaimer is where the specification describes a feature as important or required or essential to the invention. [00:18:00] Speaker 00: For example, in the safety care case, the court did find a disclaimer of [00:18:05] Speaker 00: the plain meaning in that case. [00:18:06] Speaker 00: This was a case about a bariatric hospital bed. [00:18:09] Speaker 00: And the dispute was with respect to whether the limitation required pushing forces to also include pulling forces, as long as they were essentially pushing in the same direction. [00:18:21] Speaker 00: And in that case, the court did find a disclaimer based exactly on the line of reasoning that Your Honor is thinking of, which was in the specification, they specifically called out the disputed feature pushing forces [00:18:33] Speaker 00: as opposed to polling forces. [00:18:36] Speaker 00: And they distinguished over the prior art in the specification based on that. [00:18:40] Speaker 00: And they said this is, quote, an important feature of the present invention. [00:18:45] Speaker 00: And that's the court quoting the specification there in that case. [00:18:48] Speaker 02: I would just say that the specification here suggests that bending in a predetermined direction is an important feature of the invention. [00:18:56] Speaker 02: And the expert said that it was essential. [00:19:00] Speaker 02: It wouldn't work without that. [00:19:02] Speaker 00: I don't think that argument can carry the day for at least two reasons. [00:19:06] Speaker 00: First is the point that Judge Chen alluded to earlier with respect to column 3, lines 23 through 48 of the specification. [00:19:14] Speaker 00: In the summary of the invention, they describe one aspect of the invention without ever talking about the beam bending. [00:19:20] Speaker 00: And this court has looked to the summary of invention, for example, in continental circuits and said that based on the fact that the [00:19:29] Speaker 00: feature was not uniformly required in the present invention. [00:19:33] Speaker 00: In the summary of the invention, that showed that it was not a disclaimer. [00:19:37] Speaker 00: It was not an essential feature of that invention. [00:19:40] Speaker 00: So it's described two different ways in the summary of the invention. [00:19:43] Speaker 00: That means that as a whole, the invention does not include this particular requirement. [00:19:48] Speaker 00: But I think more to get- Ms. [00:19:49] Speaker 04: Oliver? [00:19:50] Speaker 04: Excuse me. [00:19:53] Speaker 04: Is there anything in the specification that suggests that this invention [00:19:58] Speaker 04: would work in any way if the beam did not bend? [00:20:04] Speaker 00: Your Honor, there is certainly nothing in the specification that says the only way it would work is if the beam bends. [00:20:11] Speaker 00: Certainly that is the embodiment they have set forth. [00:20:14] Speaker 00: It describes a beam bending and explains how that functions. [00:20:18] Speaker 00: But there's nothing in there that says this is the only way to do it [00:20:21] Speaker 00: or a beam that is rigid or does not bend would not work. [00:20:26] Speaker 00: And if, excuse me, I'm sorry. [00:20:29] Speaker 00: And so that's the kind of disclaimer language that we are looking for in the specification. [00:20:34] Speaker 02: You didn't put in any expert testimony that says that this would work if it didn't bend, right? [00:20:41] Speaker 00: No, but that is because our expert did not present any testimony on any issue after the petition was filed. [00:20:47] Speaker 00: So the expert was not... That's an excuse? [00:20:51] Speaker 00: Well, it's just to provide context, Your Honor. [00:20:53] Speaker 00: It's not that there is not an answer for this, but we did... But again, to get more to the point of the actual argument that IAB is making... What about the nose reference? [00:21:05] Speaker 01: The nose reference is doing the same thing. [00:21:10] Speaker 01: And if I recall correctly, the beam isn't bending, but the soap [00:21:17] Speaker 01: the things that are the equivalent of connecting bars do bend. [00:21:22] Speaker 01: And the nose sensor operates for its intended purpose, right? [00:21:27] Speaker 00: Yes, Your Honor, that's correct. [00:21:29] Speaker 00: So nose A's primary function uses the exact same coriolis force that's claimed here in claim 20. [00:21:36] Speaker 00: And in that case, it is the arms, for lack of a better way to describe it, the cantilever arms that are moving as the primary source of oscillation in that case. [00:21:47] Speaker 00: So that is an instance that kind of essentially flips IAB's theory on its head. [00:21:51] Speaker 00: And that's, stepping back, that's what IAB's overall premise is. [00:21:54] Speaker 00: They're saying that one aspect, either the beam or the masses, one aspect has to bend and one has to be rigid. [00:22:02] Speaker 02: And before the board, in their theory even now... No say, if that's what you call it, doesn't show the support beam bending, right? [00:22:10] Speaker 00: Uh, Your Honor, we do have as our alternative argument evidence that Nosei is able to bend. [00:22:15] Speaker 02: Um, so- No, but you- wait, wait, wait. [00:22:17] Speaker 02: There's no question that some aspects of Nosei bend. [00:22:21] Speaker 02: The board itself made such a determination on pages 28 and 30. [00:22:27] Speaker 02: Uh, the question is whether the support beam bends. [00:22:31] Speaker 00: Uh, Your Honor, the- the only beam, um, just to be clear, I'll turn to Nosei and make sure we're- I'm referring to the same beam. [00:22:37] Speaker 00: Um, so this is [00:22:39] Speaker 00: NOSAY figure 8 is on page, appendix page 853. [00:22:45] Speaker 00: So there is one beam in NOSAY in the middle of the figure. [00:22:50] Speaker 00: And that is the same beam that we are talking about here with respect to whether it needs to bend or not. [00:22:55] Speaker 00: Now, the way that NOSAY works is these arms that kind of stick out on the side, so 22B, 22A, et cetera, those bend. [00:23:06] Speaker 00: And that starts the first oscillation. [00:23:08] Speaker 00: And so the beam there is not the primary bending object. [00:23:14] Speaker 00: So IAB's theory is that one piece must bend and one piece must be rigid. [00:23:19] Speaker 00: And they have said specifically we think claim 20 is limited to the beam must be bending and the masses must be rigid. [00:23:27] Speaker 00: But the board rejected both of those propositions. [00:23:31] Speaker 00: And first of all, they've only appealed one. [00:23:34] Speaker 00: So the board found that the masses do not have to be rigid. [00:23:37] Speaker 00: They can be flexible. [00:23:38] Speaker 00: And that has not been appealed. [00:23:40] Speaker 00: So we're already in a state that IAB's arguments on appeal are not consistent with the strategic choices they've made with respect to which portions of the board's opinion to appeal. [00:23:51] Speaker 00: The entire idea is just one has to bend and one has to be rigid. [00:23:54] Speaker 02: And Nozay... The discussion of Nozay bending it 28 to 30 is not relating to this beam, right? [00:24:03] Speaker 00: Let me confirm that, Your Honor. [00:24:10] Speaker 02: So on pages 28 and 30... You had known or asserted that NOSA thus teaches two beams that bend like a C, which prevents rotation, blah, blah, blah. [00:24:18] Speaker 02: That's not talking about the support beam that's at issue here, correct? [00:24:24] Speaker 00: That's correct. [00:24:25] Speaker 00: The aspects of NOSA that bend like a C are these arms. [00:24:30] Speaker 00: So 22B, 22A... So that's a problem because... [00:24:36] Speaker 02: We're talking about a different beam that bends, and there's no showing that that beam, the support beam in NOSA bends, right? [00:24:47] Speaker 00: Okay, so yes, our alternative argument does provide evidence that the support beam in NOSA is able to bend. [00:24:54] Speaker 00: So there's an IEEE article essentially showing that a beam that is fixed at both ends will bend to some degree, and we also presented evidence from the [00:25:06] Speaker 00: patent and the prior art, showing that both devices are made of the same material, silicon. [00:25:11] Speaker 00: So the gyro and beam in the 349 patent and the gyro and beam in the prior art are both made of silicon. [00:25:18] Speaker 00: And their expert admitted that silicon will flex to some degree. [00:25:21] Speaker 00: So there is evidence with respect to that support, beam and nose, having some ability to bend. [00:25:28] Speaker 00: But again, all of that is only relevant if the court reverses with respect to the claim construction, which we do not think is appropriate here. [00:25:35] Speaker 00: There is simply no basis in the specification for limiting the beam to bend to some degree. [00:25:43] Speaker 00: So there is no express disparagement of beams that would be rigid. [00:25:48] Speaker 00: There's no explanation of how this is different in the prior art in that regard. [00:25:53] Speaker 00: There's nothing that limits the present invention to this particular limitation that IAB has called out. [00:26:00] Speaker 00: And specifically, I'd like to go back. [00:26:01] Speaker 01: I hate to ask this question, but maybe I'm using the wrong buzzword. [00:26:07] Speaker 01: But after you read the 15 columns of this written description, what would you say is the inventive concept disclosed in that patent? [00:26:16] Speaker 00: Disclosed in the patent or in claim 20? [00:26:18] Speaker 01: Just disclosed in the patent. [00:26:20] Speaker 01: What is the inventor's inventive concept? [00:26:22] Speaker 01: He's trying to communicate. [00:26:24] Speaker 00: Your Honor, I believe that the inventor is [00:26:29] Speaker 00: is focused on this idea of a seesaw motion that's being used to transfer energy from the means for exciting to start the two primary oscillations that occur that implement the Coriolis effect. [00:26:48] Speaker 00: So I believe the inventor was trying to focus on this seesaw idea and then what happens after that. [00:26:53] Speaker 00: And that's where you see the expert testimony the IAVs presented, paragraphs 29 and 30. [00:26:58] Speaker 00: That's what they're focused on. [00:27:00] Speaker 02: That seems to require a bending beam. [00:27:04] Speaker 02: Your Honor, I think if we were talking about claim 28, then I think we'd be... Just in terms of the concept of the invention, it seems to work by having a beam that bends, right? [00:27:17] Speaker 00: Yes, I think that aspect does, but I do not think that is what the inventor claimed in claim 28. [00:27:22] Speaker 00: So respectfully, Claim 1 and Claim 28 do address that seesaw motion. [00:27:27] Speaker 00: So Claim 28 specifically calls that out. [00:27:30] Speaker 00: And that's one of the problems with IAB's argument here is that the... What's the other invention then that's in Claim 20? [00:27:37] Speaker 00: I do not believe there is an invention in Claim 20, Your Honor. [00:27:39] Speaker 00: Respectfully, I believe it claims the Coriolis force generally. [00:27:43] Speaker 00: It claims two oscillations without specifying what those are. [00:27:46] Speaker 00: It does not limit it to the seesaw oscillation. [00:27:49] Speaker 00: The board found that specifically. [00:27:52] Speaker 00: The board found that the seesaw motion is not required by claim 20. [00:27:55] Speaker 00: That's at page 28 through 30 of the board's opinion, and that has not been challenged on appeal. [00:28:01] Speaker 00: So essentially, claim 20 is just written much broader. [00:28:05] Speaker 00: They claimed what they thought was their inventive aspect in other claims, but they had the freedom to try to claim more broadly too. [00:28:12] Speaker 00: And that's what they did with claim 20. [00:28:14] Speaker 00: It just doesn't include this seesaw concept. [00:28:16] Speaker 00: And the only importance of the beam bending is based and tied directly to that seesaw concept. [00:28:23] Speaker 00: So essentially, the energy is imported into the gyro through these capacitative plates or other means, and then the seesaw motion starts occurring. [00:28:32] Speaker 00: That causes a torsional rotation. [00:28:35] Speaker 00: in the beam, which causes the beam to bend and then translates that motion to start the first oscillation of the two primary oscillations involved in the Coriolis force. [00:28:45] Speaker 01: And you're saying claim 20 doesn't capture that. [00:28:48] Speaker 00: Yes, that's exactly right, Your Honor. [00:28:50] Speaker 00: It is captured again in claim 28. [00:28:53] Speaker 00: And so I think that's another reason why... The claim one. [00:28:57] Speaker 00: Claim one and other claims dependent from claim one as well. [00:29:00] Speaker 00: And even the two inertia mass means is claimed. [00:29:05] Speaker 00: So different variations of all of that are claimed in the dependent claimed and claim one. [00:29:11] Speaker 00: And by the way, Your Honor, claim one and claim 28 are not at issue here in this case. [00:29:16] Speaker 00: So those are not being challenged. [00:29:18] Speaker 00: not be affected by this decision. [00:29:22] Speaker 00: So yeah, that is the overall point, is the entire argument that IAB has raised is based on that see-thaw motion and the effects of it and the ramifications of it. [00:29:35] Speaker 01: Is there a parallel litigation going on in district court? [00:29:39] Speaker 00: Yes, Your Honor, there is. [00:29:40] Speaker 01: Are claims like claim one, claim 28 being asserted there? [00:29:44] Speaker 00: The litigation has stayed. [00:29:46] Speaker 00: It's very early stages right now. [00:29:48] Speaker 00: All we have is the complaint, which only identifies at least claim 20. [00:29:53] Speaker 00: So claim 1 is not currently identified. [00:29:55] Speaker 00: Claim 28 is not currently identified. [00:30:10] Speaker 00: Okay. [00:30:13] Speaker 00: Just to reinforce, Your Honor, the reasons why IAB's argument that this is essential and important fails are for a few reasons. [00:30:21] Speaker 00: First, the spec just never tells us that, particularly with respect to this [00:30:25] Speaker 00: piece of the summary of the invention that never describes a claim pending. [00:30:30] Speaker 00: That's at appendix 400, column 3. [00:30:33] Speaker 00: So the spec never tells us that it's required for all embodiments or anything like that. [00:30:37] Speaker 00: The evidence that IAB relies on from their expert, primarily paragraphs 29 and 30, were specifically discredited by the board as being unsupported by evidence. [00:30:47] Speaker 00: If you compare the language of the spec to his testimony, there's a bit of a gloss there that's added. [00:30:54] Speaker 00: And that was at appendix page 14 and 15. [00:30:57] Speaker 00: But most importantly, even if all of that were true, it simply doesn't pertain to claim 20. [00:31:02] Speaker 00: Claim 20 only requires two oscillations and the entire process that IAB has discussed with respect to this seesaw motion, then the beam, then starting the first primary oscillation with respect to the Coriolis force [00:31:16] Speaker 00: That is simply with respect to the third unclaimed oscillation. [00:31:23] Speaker 00: Your Honor, again, I'll emphasize that if the Court disagrees and does change the claim construction in this case, we would respectfully request a remand to address the evidence that we have already presented. [00:31:35] Speaker 00: And, Your Honors, if the Court were to change the construction to be more limited to a predetermined bending direction, [00:31:42] Speaker 00: then we would respectfully ask for a remand there to present additional evidence and arguments as no party raised that construction before the board. [00:31:50] Speaker 00: So we think that would be appropriate for this court to remand in that circumstance as well. [00:31:56] Speaker 00: In sum, we respectfully request the court hold that the plain meaning of beam applies here. [00:32:01] Speaker 00: And unless the court has any further questions, we respectfully ask the court to affirm. [00:32:07] Speaker 02: Okay. [00:32:08] Speaker 02: Thank you, Ms. [00:32:09] Speaker 02: Oliver. [00:32:10] Speaker 02: Mr. Chavez, just wait a moment until we're able to monitor back in position and you have two minutes for a bottle. [00:32:38] Speaker 03: Thank you, Your Honor. [00:32:39] Speaker 03: I'd like to just raise one point with what Kelly raised, which was saying that 2020 doesn't cover the invention that's disclosed in the specification. [00:32:50] Speaker 03: And I'd like to note something in the specification that directly hits on the importance of the beam bending and bending generally. [00:32:58] Speaker 03: It's in column 11 of this specification at line 32. [00:33:03] Speaker 03: And that paragraph. [00:33:06] Speaker 03: It talks about the two masses, 44 and 45. [00:33:09] Speaker 03: These are the inertia, these are the inertia mass. [00:33:13] Speaker 03: And it talks about how those masses are excited. [00:33:16] Speaker 03: Okay, they're excited by a force. [00:33:19] Speaker 03: They create, they will create a torsion, but here it says, consequently, the beam 41 executes a simple bank. [00:33:27] Speaker 03: As illustrated by the dotted line 50, this is in figure four. [00:33:33] Speaker 03: And it says, because the mass oscillates in antiphase, the total movement of the total system is zero on excitation of the bar because there is no movement of the center of gravity. [00:33:44] Speaker 03: So in other words, what's happening here, Your Honor, is that seesaw motion creates that axis. [00:33:49] Speaker 03: Here is the point where the inventor says that simple bend is all that's required. [00:33:56] Speaker 03: Now, the wrestling volume is talk about soft bending direction. [00:34:01] Speaker 03: But when it comes to the actual concept of bending, that is the basis of this invention. [00:34:10] Speaker 02: So what's the difference between claim one and claim 20 if we agree with you that the beam in claim 20 has to bend? [00:34:23] Speaker 03: Claim one, Your Honor, bends in a predetermined direction. [00:34:26] Speaker 03: Claim 20 bends, but there is not a predetermined direction. [00:34:30] Speaker 03: because the predetermined direction is the extra limitation. [00:34:33] Speaker 03: Now, to the extent that somebody argues that that claim expands beyond the scope of this specification, that is a written description argument and not the basis for an argument saying that the invention, as held here, doesn't require the means of that. [00:34:54] Speaker 01: Go ahead. [00:34:57] Speaker 02: So if we were to construe [00:35:00] Speaker 02: claim twenty and the word beam to require bending in a predetermined direction, there would be no difference between claim one and claim twenty. [00:35:10] Speaker 02: Is that correct? [00:35:15] Speaker 03: Your Honor, I'm not sure that's correct considering we spoke of the language in claim one. [00:35:21] Speaker 03: I would have to be frank with you. [00:35:24] Speaker 03: I believe that there are [00:35:31] Speaker 03: There's additional language at the end of claim one, Your Honor, that would be an additional limitation. [00:35:39] Speaker 03: Additional limitation in that language is so that the direction is neither parallel with nor particular to set plane, so that the first oscillation may be initiated by an excitation force which is not parallel with set plane. [00:35:55] Speaker 03: That's actually where there are two difference. [00:36:00] Speaker 03: Truly two different points. [00:36:06] Speaker 01: Just before we go, can you just translate why that makes one claim different from the other claim if we were to construe beam to be a bendable beam that bends in a predetermined direction, blah, blah, blah? [00:36:21] Speaker 03: Because in the one case, you have a perpendicular oscillation in that claim one. [00:36:30] Speaker 03: Your Honor, that's an acute, that's an acute oblique line. [00:36:35] Speaker 03: So the oscillation's happening not perpendicularly to, but, or parallel to, but it's happening in a, you know, at a, at a diagram, at the axis of the diagram for the first oscillation. [00:36:51] Speaker 02: Okay. [00:36:53] Speaker 02: Thank you very much, Your Honor. [00:36:54] Speaker 02: Thank you very much. [00:36:55] Speaker 02: Thank both counsel. [00:36:56] Speaker 02: The case is submitted. [00:36:57] Speaker 02: And that concludes our session for this morning.