[00:00:00] Speaker 00:
Our next case for argument today is 2020-1711, Intel versus VLSI.

[00:00:11] Speaker 00:
Mr. Fleming, please proceed.

[00:00:14] Speaker 02:
Good morning, and may it please the court, Mark Fleming on behalf of Intel.

[00:00:18] Speaker 02:
The Shibata reference discloses a layer of solder.

[00:00:22] Speaker 02:
The solder layer is thinner than the metal electrode underneath it, and the electrode is made of nickel or copper or gold.

[00:00:29] Speaker 02:
VLSI's expert Dr. Nykirk conceded all of that.

[00:00:32] Speaker 02:
That should have been the end of it because claim nine of the 672 patent requires nothing more regarding the underbump metallization.

[00:00:39] Speaker 02:
But the board committed legal error in requiring more than the claim does in two ways.

[00:00:45] Speaker 02:
Once those errors are set aside, anticipation is clear.

[00:00:48] Speaker 02:
The first error is the board thought that Shibata's solder layer 19 was too thin to be a bump that sits over an underbump metallization, even though it acknowledged

[00:00:57] Speaker 02:
that claim nine does not require solder to have a particular thickness.

[00:01:01] Speaker 02:
Bump is not a claim term.

[00:01:02] Speaker 02:
Nobody asked to construe it.

[00:01:04] Speaker 02:
The claim only requires a solder interconnection that is a layer, and it has no minimum thickness requirement.

[00:01:10] Speaker 01:
Well, that was one of about six rationales.

[00:01:14] Speaker 01:
And the only reference to the thinness was that that's just one more indication.

[00:01:20] Speaker 01:
The board did not say that it had to be

[00:01:25] Speaker 01:
a particular size, it just was pointing out the extreme difference, correct?

[00:01:32] Speaker 02:
Well, Your Honor, I don't think there were six rationales.

[00:01:35] Speaker 02:
I think there were only two, and one was that it thought that the solder layer was significantly thinner than prior art solder layers.

[00:01:44] Speaker 02:
If we swipe that aside, I think the only other ground on which the board distinguished Shabbatah

[00:01:50] Speaker 02:
was because of how Shabata used the word bump and referred to its Electrode 11 as a bump electrode.

[00:01:56] Speaker 02:
And that's a separate legal error, as I'll explain.

[00:01:59] Speaker 02:
But I think those two are the only bases on which the board purported to distinguish Shabata's Electrode 11 from the claimed underbump metallization.

[00:02:09] Speaker 02:
And as for the thickness requirement or the discussion of thickness in the board's opinion, I mean, the board conceded

[00:02:17] Speaker 02:
The 672 specification emphasizes the solder layer is, quote, very thin.

[00:02:21] Speaker 02:
That's in column one.

[00:02:23] Speaker 02:
It has a relatively small height.

[00:02:25] Speaker 02:
It goes down as little as five microns in the specification.

[00:02:28] Speaker 02:
And Shibata says its solder layer 19 can be up to three microns or so.

[00:02:32] Speaker 02:
So that's only two microns of difference.

[00:02:34] Speaker 02:
And the patent nowhere says that the claims would somehow exclude a three micron layer.

[00:02:39] Speaker 02:
And VLSI has never suggested

[00:02:42] Speaker 02:
why having a five micron layer as opposed to Shabata's three microns would make any kind of technical or practical difference.

[00:02:49] Speaker 02:
And no wonder, because if it did, they would have claimed it.

[00:02:51] Speaker 02:
And so, as we read the board's opinion, the board wrote in a thickness limitation that isn't supported and is legal error, particularly under the broadest reasonable interpretation standards.

[00:03:03] Speaker 02:
With respect to the second legal error that the board made,

[00:03:05] Speaker 02:
This was wrongly requiring the prior art to use the same terminology as the patent, even though it discloses exactly the same structure.

[00:03:13] Speaker 02:
The board did not deny, and VLSI doesn't really dispute, that an underbump metalization is so called because the metalization is generally under the solder bump.

[00:03:24] Speaker 02:
And the underbump metalization is there, it's technically there, because solder sticks better to those metals than it does to the bond pass.

[00:03:32] Speaker 02:
Well, the board also found on page 23 of the appendix that Shibata's electrode 11 is under solder, just like the 672 patents under bump metallization.

[00:03:41] Speaker 00:
So the Shibata electrode is under... This is just more.

[00:03:44] Speaker 00:
Would you turn with me to the Shibata reference?

[00:03:48] Speaker 00:
And let's look at figure 17.

[00:03:51] Speaker 00:
Figure 17, do you agree that what is demarked 21 and 11 in figure 17 are bump electrodes?

[00:04:02] Speaker 02:
That's how Shabbat refers to them, yes.

[00:04:05] Speaker 00:
And do you agree that those are not under-bump metallization?

[00:04:11] Speaker 02:
No, I do not agree with that.

[00:04:12] Speaker 02:
They are under-bump metallizations because in the, as described in the paragraph... Wait, wait, wait.

[00:04:19] Speaker 00:
Time out, time out.

[00:04:20] Speaker 00:
So these are bump electrodes.

[00:04:22] Speaker 00:
How can they also be under-bump metallization?

[00:04:25] Speaker 00:
What the heck are they under?

[00:04:27] Speaker 02:
Oh, okay.

[00:04:28] Speaker 02:
Well, this figure demonstrates the process of the assembly.

[00:04:32] Speaker 02:
But when the entire implementation is complete, there is a layer 19 of solder.

[00:04:39] Speaker 02:
that is placed in between them.

[00:04:40] Speaker 00:
No, no council, you're incorrect.

[00:04:43] Speaker 00:
Figure 17 is referencing the prior art.

[00:04:46] Speaker 00:
And as it explains in this patent, 11 and 21 are heated and they become, they form the connection.

[00:04:56] Speaker 00:
There is not solder added in between figure 17 to number 11 and 21.

[00:05:03] Speaker 00:
My apologies, Your Honor.

[00:05:04] Speaker 00:
Do you need me to take you through the patent?

[00:05:06] Speaker 00:
It's in column one, paragraph three.

[00:05:08] Speaker 00:
I'm happy to take you through the patent if necessary, but there is no solder added to this embodiment.

[00:05:14] Speaker 02:
In the prior art, that is true, but we are relying not on... Council, Council, stop interrupting me.

[00:05:21] Speaker 00:
Stop interrupting me when I'm interrupting you.

[00:05:23] Speaker 00:
So, figure 17 is a description of the prior art.

[00:05:27] Speaker 00:
Do you understand that when a patent uses a number,

[00:05:32] Speaker 00:
It consistently uses that number identically in every figure in the patents.

[00:05:37] Speaker 00:
That number 11 in figure 17 can't be different than number 11 in figure, say, 2 or 11 or 3 or whatever.

[00:05:44] Speaker 00:
Do you understand that?

[00:05:45] Speaker 00:
Is that your understanding of how patents are written?

[00:05:49] Speaker 00:
Sure.

[00:05:50] Speaker 00:
OK.

[00:05:50] Speaker 00:
So, figure 11 and figure 21 in figure 17 are bump electrodes.

[00:05:56] Speaker 00:
They are not under bump metallization because there is no solder placed on top of them.

[00:06:01] Speaker 00:
They function fully and completely to effectuate the jointer of these two chips.

[00:06:07] Speaker 00:
Does that now sound correct?

[00:06:09] Speaker 02:
As a description of the prior art, yes, that is correct.

[00:06:12] Speaker 00:
Okay, so now when we go to figure 12, which is I think what you're wanting us to look at, is that right?

[00:06:19] Speaker 02:
Yes, figure 12 and corresponding paragraph 83.

[00:06:23] Speaker 00:
So when you look at figure 12, again we have the 11 and 21, which according to this patent are bump electrodes, which can be used to join two things together.

[00:06:38] Speaker 00:
But now we have the introduction of a thin layer of solder at 19.

[00:06:44] Speaker 00:
Am I right in understanding that?

[00:06:47] Speaker 02:
That is correct.

[00:06:48] Speaker 02:
There is a thin layer of solder 19.

[00:06:50] Speaker 00:
OK.

[00:06:51] Speaker 00:
So I guess the problem I have with what you're arguing is that the board, and this seems to me very much a factual question, has to interpret the prior art and how that prior art would be understood by a skilled artisan.

[00:07:07] Speaker 00:
And so when they're looking at figure 12,

[00:07:10] Speaker 00:
and comparing it or understanding that figure 17 has previously been discussed by the time you get to figure 12, they're looking at 11 and 21 as bump electrodes.

[00:07:22] Speaker 00:
And I guess the question, which I see is entirely factual and not at all legal, is if there's some error in their opinion by virtue of reaching the conclusion, then when you add a thin layer of solder on top of an electrode bump,

[00:07:37] Speaker 00:
that it converts the electrode bump into under-bump metalization or not.

[00:07:43] Speaker 00:
The board concluded a skilled artist would not understand the electrode bump to be converted into under-bump metalization.

[00:07:51] Speaker 00:
Instead they understood that people would still perceive it as an electrode bump which is distinct from the under-bump metalization.

[00:07:59] Speaker 00:
And what they concluded in this case with the under-bump metalization was the little hashed

[00:08:04] Speaker 00:
14 barrier mode metal below the electrode bump, below the solder, which is then below, it was in the electrode bump and below it, is the barrier metal 14.

[00:08:17] Speaker 00:
And so as I understand the board's opinion, they concluded that a skilled artist would understand 14 to be the under bump metallization, and they wouldn't understand the electrode bump to be the under bump metallization.

[00:08:30] Speaker 00:
And that all seems like a factual question.

[00:08:32] Speaker 00:
Am I missing something?

[00:08:34] Speaker 02:
So there's a lot in that question, Judge Moore.

[00:08:36] Speaker 02:
I want to address as much of it as I can.

[00:08:39] Speaker 02:
The first thing, and I think the question recognized this, but just to make it explicit, there's no claim in the 672 patent to how the UBM, the underbumb metallization is formed.

[00:08:50] Speaker 02:
Dr. Nykirk admits that on 1824.

[00:08:51] Speaker 02:
The only question is whether someone who makes Shibata's improvement over the prior art, which is the nickel electrode embodiment with the solder layer on top of it, will have made something that is covered by claim nine.

[00:09:04] Speaker 02:
And the answer is they will.

[00:09:06] Speaker 00:
Well, no, counsel, the answer isn't will they have made something covered by claim nine.

[00:09:10] Speaker 00:
The answer, the question is, will a skilled artisan have understood this to be what is covered by claim nine?

[00:09:18] Speaker 02:
I'll accept that correction, your honor, because I think the answer is still the same, which is a skilled artisan will look at the nickel electrode or copper or gold electrode 11 with a thin layer of solder 19 on top of it.

[00:09:30] Speaker 02:
and recognize that that is structurally and technically exactly the same as what the 672 patent discloses.

[00:09:37] Speaker 02:
There is a difference in terminology, I agree.

[00:09:40] Speaker 02:
Bump electrode is used in Shabbatah, whereas under-bump metallization is used in the 672 patent.

[00:09:46] Speaker 02:
But this court has said repeatedly that a holding that the prior art doesn't anticipate nearly because of different technology would be contrary to law.

[00:09:53] Speaker 00:
We cite numerous cases to that effect, and BLSI has no... Well, counsel, part of your problem is that the patentee

[00:10:00] Speaker 00:
did in fact choose the nomenclature and an under-bump metallization by its plain language is the metal underneath a bump, right?

[00:10:12] Speaker 02:
Yes, we don't disagree with that.

[00:10:15] Speaker 00:
So the problem is when you look at figure 12 of the Shabbatah reference, it looks like based

[00:10:26] Speaker 00:
in part on how a skilled artisan would understand the description given in this patent that part of the electrode bump is 11 and the metal under that bump is the barrier metal between the chip surface, I guess, and the electrode bump.

[00:10:44] Speaker 00:
You wouldn't normally think of the bump itself as being part of the under-bump metallization.

[00:10:50] Speaker 00:
And, you know, I understand you would like me to disregard all that nomenclature, but that nomenclature is how a skilled artisan would read this patent.

[00:11:01] Speaker 02:
Well, again, I think in determining anticipation, the fact that a prior art reference uses terms that, you know, it's agreed in this art are used loosely.

[00:11:12] Speaker 02:
Bump simply means a protrusion built on something else.

[00:11:15] Speaker 02:
and the layer of solder is simply that, it's a layer, and the claims very specifically do not recite anything more beyond that than those two factors.

[00:11:27] Speaker 02:
To say that anticipation can't be found simply because the priority uses a different word, I don't know of any case that actually supports that, and VLSI certainly doesn't cite any.

[00:11:36] Speaker 00:
Let's recall that in the formation of the... Your problem isn't that it uses a different word.

[00:11:43] Speaker 00:
Your problem is the electrode bump

[00:11:45] Speaker 00:
is understood based on the disclosure in figure 17 to be part of the bump, not part of the under bump.

[00:11:55] Speaker 00:
And that's your problem.

[00:11:56] Speaker 00:
Your problem is this disclosure describes at figure 17, number 11, being the bump.

[00:12:04] Speaker 00:
And you want me to suddenly say it's not part of the bump because a tiny little bit of solder was put on top of it.

[00:12:10] Speaker 00:
And, you know, that maybe under a de novo standard, you'd have legs.

[00:12:16] Speaker 00:
But under a substantial evidence standard, I don't see that you've got any ground at all.

[00:12:22] Speaker 02:
Well, I mean, let's recall.

[00:12:24] Speaker 02:
Column 1 at line 57 of the patent says metal is provided to act as underbump metallization and or a bump.

[00:12:31] Speaker 02:
Dr. Nykerk on 2144 says a skilled artisan may refer to a bump electrode as formed on an underbump metalization, but it's not required that it do so.

[00:12:40] Speaker 02:
What matters is not the words, but whether someone who does what Shabbat teaches would understand that they're producing the same structure called out by the claim, regardless of what it's actually called.

[00:12:52] Speaker 02:
and what terminology is used.

[00:12:53] Speaker 02:
What matters is the technical difference.

[00:12:55] Speaker 02:
And VLSI has never pointed to any technical, practical difference whatsoever between what is shown on Figure 12 of Shabbatah and described in Paragraph 83 of Shabbatah on 1148 and what is recited in Claim 9, because there is no difference.

[00:13:09] Speaker 02:
It is exactly the same.

[00:13:10] Speaker 02:
It is a metal electrode with a thin layer of solder on top, and both are formed as protrusions on another surface.

[00:13:18] Speaker 02:
And so to the extent there is a need to construe what a bump is under the broadest reasonable interpretation of that word, even though it's not a claim term, I mean, then they could all qualify as bumps.

[00:13:28] Speaker 02:
But remember, the board told us how the 672 patent uses the word bump.

[00:13:32] Speaker 02:
It uses it to mean the solder layer.

[00:13:34] Speaker 02:
That's on page 821, or appendix 21.

[00:13:37] Speaker 02:
The 672 patent repeatedly refers to the solder layer.

[00:13:40] Speaker 02:
on top of the underbump metallization as a bump.

[00:13:43] Speaker 02:
There's no requirement as to height.

[00:13:44] Speaker 02:
There's no requirement as to shape.

[00:13:46] Speaker 02:
There isn't even a statement that the underbump metallization itself can't be initially formed as a bump on top of something else, because that's how the 672 patent forms its electrode as well.

[00:13:56] Speaker 02:
It creates it as a protrusion on top of the bond pad, because it needs to do that, otherwise the solder won't stick to the implementation.

[00:14:04] Speaker 02:
And so the fact that Shibata

[00:14:06] Speaker 00:
You're using almost all of your rebuttal time.

[00:14:10] Speaker 00:
Would you like to save some?

[00:14:13] Speaker 02:
I would happily save some if the court would permit, but it's much more important that I address the court's questions.

[00:14:18] Speaker 02:
So I'm happy to proceed as the court wishes.

[00:14:21] Speaker 00:
I think you ought to save some time for rebuttal.

[00:14:24] Speaker 00:
So why don't we go here and hear from Mr. Lowenstein?

[00:14:28] Speaker 02:
Thank you, Your Honor.

[00:14:39] Speaker 02:
Mr. Lowenstein?

[00:14:41] Speaker 03:
Oh, I'm sorry.

[00:14:42] Speaker 03:
I thought there was going to be a tone.

[00:14:43] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:14:46] Speaker 03:
I believe Your Honors are seeing the issues exactly correctly.

[00:14:51] Speaker 03:
I'll be very brief.

[00:14:53] Speaker 03:
I believe it was Judge O'Malley who said, isn't there one of six rationales, and that's exactly right.

[00:15:00] Speaker 03:
Judge Moore is exactly correct that these are fact-bound issues.

[00:15:05] Speaker 03:
I think we can dismiss the notion that there was

[00:15:08] Speaker 03:
an implicit claim construction, as they suggest, because I'm going to quote from the final written decision.

[00:15:14] Speaker 03:
Claim nine does not require the solder interconnection to be a bump or have a specific thickness, such on page 25 of the appendix.

[00:15:23] Speaker 03:
Now, it is one thing to say that there is an implicit construction.

[00:15:27] Speaker 03:
Such a thing could occur.

[00:15:28] Speaker 03:
It's not common, but such a thing could be present.

[00:15:32] Speaker 03:
It's quite another thing.

[00:15:33] Speaker 03:
To suggest that the board made an implicit construction when expressly said it was not making that construction and did not read those requirements into the claim.

[00:15:43] Speaker 03:
Such a notion is completely unprecedented.

[00:15:47] Speaker 03:
I thought Judge Moore's questions concerning Shabata's original configuration and the nomenclature are exactly correct.

[00:15:56] Speaker 03:
These are fact-bound issues.

[00:15:58] Speaker 03:
Even if under a de novo standard someone theoretically could disagree with the board's

[00:16:03] Speaker 03:
what I think was a very reasonable decision.

[00:16:06] Speaker 03:
It doesn't really matter for purposes of review under substantial evidence.

[00:16:11] Speaker 03:
And I'll just make a couple additional points that I'm fairly certain Your Honors are aware of, but I think just illustrate further why the board found baritone.

[00:16:20] Speaker 01:
Council, this is Judge O'Malley.

[00:16:22] Speaker 01:
I have a question.

[00:16:24] Speaker 01:
Should we be concerned about the function of the structure, regardless of what it's called?

[00:16:34] Speaker 03:
No, because it will let you clarify.

[00:16:37] Speaker 03:
So I think if you look at Shibata's original configuration, the function of the bump electric is to be a flip chip bump.

[00:16:44] Speaker 03:
That's what Judge Moore was alluding to in connection with Figure 17.

[00:16:49] Speaker 03:
And so that's the function of the bump electric.

[00:16:52] Speaker 03:
And so the only thing that Shibata does is say, well, if you're using nickel or gold, those metals have a very high melting point.

[00:16:58] Speaker 03:
And so why don't we just put a little thin

[00:17:01] Speaker 03:
a dollop of solder on it just to facilitate bonding so you don't damage the chip.

[00:17:06] Speaker 03:
So I think that the function is to be a flip-chip bump.

[00:17:10] Speaker 03:
And so to the extent that it's relevant, it only further supports our position.

[00:17:17] Speaker 03:
And I think you can see that in the Yamada reference, where there's an underbump metallization over a bump electrode.

[00:17:25] Speaker 03:
And above that, there's a solder layer.

[00:17:28] Speaker 03:
But that doesn't convert

[00:17:30] Speaker 03:
the bump electrode into a part of the UVM, which Shimada says is distinct.

[00:17:34] Speaker 03:
And again, they make this argument that these are separate layers of the bump electrode as part of one of the layers of the UVM, but that's not correct.

[00:17:43] Speaker 03:
The board found that the bump electrode is clearly a distinct structure.

[00:17:49] Speaker 03:
So I hope I answered your question, Judge Malley, but I think to the extent that the function

[00:17:53] Speaker 03:
is relevant.

[00:17:55] Speaker 03:
It only supports our position.

[00:17:58] Speaker 03:
And so why did the board find that the barrier metal layer is UVM?

[00:18:02] Speaker 03:
Well, Dr. Brotman, Intel's expert, says UVM typically has three layers, gold, copper, and chromium.

[00:18:10] Speaker 03:
Those are the exact same three layers that are present in barrier metal layer 14.

[00:18:16] Speaker 03:
It is a prototypical

[00:18:18] Speaker 03:
UBM, and it looks like a prototypical UBM.

[00:18:21] Speaker 03:
If you look at, in our papers, we compared the shape of the UBM in Shibata to other UBMs in the record, and they all kind of look like this sort of Cheshire grin, for lack of a better term.

[00:18:34] Speaker 03:
It looks exactly like a typical UBM, and it has a bump on top of it.

[00:18:37] Speaker 03:
And the bump lecture, just to reiterate, both experts agree that a bump lecture is used to refer to a flip-chip bump, and Dr. Nykerk

[00:18:48] Speaker 03:
And so wonder they agreed, because Dr. Nykerk cited six different references that use Bumper lecture precisely that way.

[00:18:54] Speaker 03:
And he also cited nine different references that uses barrier metal layer to be synonymous with UVM.

[00:19:01] Speaker 03:
And so I think Judge Moore is precisely correct that this is a fact-bound question.

[00:19:06] Speaker 03:
And quite frankly, all of the facts are on our side.

[00:19:09] Speaker 03:
And so what I would like to do with the rest of my time is respond to any questions your honors may have.

[00:19:15] Speaker 03:
And otherwise, I'm prepared to rest.

[00:19:24] Speaker 00:
Okay.

[00:19:25] Speaker 00:
If there's nothing further, then we should hear from Mr. Fleming.

[00:19:31] Speaker 00:
We'll restore two minutes of your rebuttal time, Mr. Fleming.

[00:19:34] Speaker 02:
Thank you, Your Honor.

[00:19:35] Speaker 02:
I have only three points I'd like to focus on.

[00:19:38] Speaker 02:
To Judge O'Malley's question, the function is, of course, important because the issue in an anticipation analysis is not the terminology that is used in the prior arc.

[00:19:46] Speaker 02:
But as this court said in In Ray Clark, which we cite,

[00:19:49] Speaker 02:
The question is whether there's any difference that resides beyond the language used to describe the structure rather than in the structure itself.

[00:19:57] Speaker 02:
And that's what matters.

[00:19:58] Speaker 02:
It's what structure a skilled artisan would see as disclosed in Shabbatah.

[00:20:02] Speaker 02:
And here, it's not really helpful to talk about a flip chip bump because the patent doesn't use that phrase.

[00:20:08] Speaker 02:
Shabbatah's electrode 11 functions exactly like the underbump metallization claimed in the patent.

[00:20:14] Speaker 02:
It's thicker than the solder that is on top of it.

[00:20:16] Speaker 02:
It has a higher melting point because it's made of nickel.

[00:20:19] Speaker 02:
and the solder joins it to another metalization, the second metalization.

[00:20:23] Speaker 02:
That is exactly what the underbump metalization does in the 672 patent.

[00:20:28] Speaker 02:
The only difference that Mr. Lowenstein or the board identified was that it was referred to as something different, a bump electrode.

[00:20:36] Speaker 02:
The second point.

[00:20:37] Speaker 00:
This is Judge Moore.

[00:20:39] Speaker 00:
Aren't you also arguing that 14, the barrier layer, is part of the underbump metalization in SHBATA?

[00:20:47] Speaker 02:
Yes, that's correct.

[00:20:48] Speaker 00:
And that's because.

[00:20:50] Speaker 00:
So your argument is that the electrobump and the barrier metal 14 constitute the underbump metallization in Shibata.

[00:20:58] Speaker 00:
Is that right?

[00:21:00] Speaker 02:
Yes, that's correct.

[00:21:01] Speaker 02:
And it's uncontroversial that an underbump metallization can consist of multiple layers.

[00:21:05] Speaker 02:
The board recognizes that on page 23.

[00:21:07] Speaker 02:
And Dr. Nykerk admitted it both in his declaration and at his deposition.

[00:21:12] Speaker 02:
There's nothing in the claims that says that they exclude an underbump metallization made of multiple layers.

[00:21:17] Speaker 02:
And there's likewise nothing that says it can be a barrier metal layer and only that.

[00:21:23] Speaker 02:
Mr. Lowenstein, going back to the point of rebuttal, tried to compare

[00:21:29] Speaker 02:
bump electrode 11 in Shibata to what he called a flip chip bump.

[00:21:33] Speaker 02:
I would say if by a flip chip bump he means a bump of solder, which is how VLSI uses it, the electrode doesn't qualify.

[00:21:39] Speaker 02:
It's made of nickel.

[00:21:40] Speaker 02:
It has a melting point over 2600 Fahrenheit.

[00:21:42] Speaker 02:
It's not solder.

[00:21:43] Speaker 02:
The solder is the gold tin layer 19 that sits on top of the metalization.

[00:21:49] Speaker 02:
The final point, if I may, about the implicit construction, Mr. Lowenstein read from page 8.5, but he neglected to read the word that precedes the language he read, which is although.

[00:22:00] Speaker 02:
And it is true that the board recognized that although claim 9 doesn't require a specific thickness, it then goes on to say it agreed with the LSI's argument that the contrast between, and this is contrast in thickness because it's the only contrast mentioned.

[00:22:15] Speaker 02:
is that Shabata's layer 19 was somehow too thin because it went up to three microns.

[00:22:20] Speaker 02:
Whereas the patent specification only went down to five, but there's nothing in the patent or in the board's decision suggesting that that distinction has any meaningful patentable weight.

[00:22:29] Speaker 02:
That was an improper implicit claim construction just as in the CISCO versus PQ case and in the Corning versus Fastell cases that we cite.

[00:22:37] Speaker 02:
So for those reasons, we respectfully submit that the court should reverse and remand for further proceedings due to the board's legal errors.

[00:22:45] Speaker 02:
If the court has any further questions, I'd be happy to answer them.

[00:22:48] Speaker 00:
I thank Close Counsel for their argument.

[00:22:50] Speaker 00:
The case is taken under submission.

[00:22:53] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.