[00:00:01] Speaker 02: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:05] Speaker 02: God save the United States and this honorable court. [00:00:10] Speaker 00: The first two cases for argument, which are consolidated, are 19-19-02 and 20-1250, consolidated for purposes of argument. [00:00:23] Speaker 00: Both are named Power Packer North America versus GW LISC. [00:00:28] Speaker 00: Mr. Margolis, whenever you're ready. [00:00:31] Speaker 02: May it please the court. [00:00:33] Speaker 02: The board erred here by failing to adopt the broadest reasonable interpretation of the term flow regulating valve. [00:00:41] Speaker 02: The term flow regulating valve is not ambiguous, and its meaning is crystal clear from the intrinsic evidence. [00:00:47] Speaker 02: A flow regulating valve is a valve that regulates flow. [00:00:51] Speaker 02: The board's departure from the plain meaning of this term by using extrinsic evidence was erroneous. [00:00:58] Speaker 02: The first place to look here is the original argument made by LISC in its opening brief in the IPR. [00:01:08] Speaker 02: It originally told the board that the 821 claims, 821 patent claims and specification provide context informing a person of skill in the arts understanding of flow regulating valves. [00:01:23] Speaker 02: At the time, it did not say that this was a term of art, which required extrinsic evidence to understand. [00:01:28] Speaker 00: At that time... Let me ask you, Mr. Margolis. [00:01:31] Speaker 00: This is Judge Proust. [00:01:32] Speaker 00: Where in the intrinsic evidence is there an explicit or clear definition? [00:01:41] Speaker 02: In terms of the patentee defining it, there's no definition that way, but the term itself [00:01:49] Speaker 02: is a clearly understandable term. [00:01:52] Speaker 02: It uses normal English words, flow, regulating, and valve. [00:01:58] Speaker 00: Is there anything in the specification that disagrees or is inconsistent or contrary to the claim construction provided by the board? [00:02:10] Speaker 02: Yes, there is, Your Honor. [00:02:12] Speaker 02: First of all, the specification excluding the claims does not use the term flow regulating valve. [00:02:18] Speaker 02: It uses flow control valve. [00:02:21] Speaker 02: And in its very last sentence, the patent says, instead of opening and closing a flow control valve, the proportional control can be arranged to adjust the operating positions of other hydraulic and mechanical devices. [00:02:35] Speaker 02: Then in the claims, the term flow regulating valve is used. [00:02:40] Speaker 02: In terms of use of the term regulating flow, that is used in the patent [00:02:47] Speaker 03: Mr. Margolis, this is Judge Chen. [00:02:50] Speaker 03: Did your expert acknowledge that those two terms are synonymous, flow control valve and flow regulating valve? [00:02:57] Speaker 02: He did in the context and immediately after saying that a directional valve is a flow regulating valve and a flow control valve. [00:03:08] Speaker 02: So yes, in his mind, they were synonymous because in his mind, a directional valve is a flow regulating valve. [00:03:16] Speaker 03: Could you, I mean, I am very interested in the answer to Chief Judge Prost's question. [00:03:25] Speaker 03: What in the spec tells us that something about the meaning of flow regulating valves? [00:03:34] Speaker 02: Well, if you look in the specification, Appendix 163 and for the benefit of the court, we have two appendices. [00:03:44] Speaker 02: Sites will be from the 2019, 1902, 1965 appendix. [00:03:50] Speaker 02: At column 1, 65 to 67, it says a directional valve is preferably a four-way servo valve in the form of a spool valve that regulates flows. [00:04:02] Speaker 02: Going on to appendix 164, 335 to 38, it talks about this valve regulating the flow of working fluid. [00:04:12] Speaker 02: Additionally, on column 7, 42 to 45, the directional valve is a four-way directional valve that regulates flow of fluid. [00:04:22] Speaker 03: Mr. Margolis, you completely lost me because I thought you were going to direct us to passages that were going to explain and define how the inventor contemplated the meaning of flow regulating valves and the passages you just quoted are talking about the directional valve. [00:04:40] Speaker 02: Yes, because those are uses of the term regulate or regulating flow in the specification. [00:04:47] Speaker 02: When referring to the main valve, it calls it a flow control valve, and the broadening paragraph at the end of the patent says that the claims can be broader than flow control valve and then uses flow regulation. [00:05:01] Speaker 02: So the only time the patent specification uses the term regulating flow, well, the times it uses it, [00:05:10] Speaker 02: of refer to both directional valves and to flow control valves, which we contend is contrary to the narrowing. [00:05:19] Speaker 03: Mr. Margolis, let me see. [00:05:21] Speaker 03: I want us to be precise here. [00:05:24] Speaker 03: There doesn't seem to be any dispute among the experts, among the parties, that when it comes to a directional valve, a directional valve, its primary purpose is to direct [00:05:40] Speaker 03: flow in one direction versus another direction, but then it could have a secondary purpose, which is to regulate or meter out the flow of fluid going through that valve. [00:05:53] Speaker 03: And so the fact that there could be some discussion of a directional valve in this patent regulating flow, that's perfectly consistent with everyone's understanding of how a skilled artist would ordinarily understand that term in this art. [00:06:11] Speaker 03: But when it comes to flow regulating valves, I don't see anything here in the specification either with respect to that claim term or the referred to term of flow control valve as saying yes. [00:06:28] Speaker 03: And when we talk about a flow control valve, flow regulating valve, we're talking about a valve that can actually direct and channel the flow of fluid [00:06:40] Speaker 03: down one passage versus another passage. [00:06:43] Speaker 03: Is there anything like that in this specification? [00:06:46] Speaker 02: There's nothing like what you just said. [00:06:49] Speaker 02: It is that flow regulating valve, or the term regulating flow, was always used functionally in the patent. [00:06:58] Speaker 02: In describing some aspect of the directional valve, right? [00:07:03] Speaker 03: In both the directional valve and the flow control valve. [00:07:06] Speaker 03: Right. [00:07:07] Speaker 03: So. [00:07:07] Speaker 03: But the term. [00:07:09] Speaker 03: Do you see my problem? [00:07:10] Speaker 03: My problem is I'm trying to find out if there's something in this specification that communicates to me that this patent drafter, this inventor was contemplating flow regulating valve to be something where there's also going to be some channeling of fluid flow down one passage versus another passage. [00:07:30] Speaker 02: Well, what we contend is there's nothing in the patent saying that it's not. [00:07:37] Speaker 02: The board's decision [00:07:39] Speaker 02: was a flow regulating valve stops being a flow regulating valve if it has another function, even if that function is a primary purpose. [00:07:50] Speaker 02: And there's nothing in the specification [00:07:53] Speaker 00: Can I ask you, this is Judge Prose, can I change the direction a little bit? [00:08:00] Speaker 00: I mean, under the process we're dealing with here, there's nothing, as we all acknowledge, this term is not included, referenced in the spec at all. [00:08:10] Speaker 00: There's no prosecution history that anyone's talking about. [00:08:13] Speaker 00: So why was it error for the [00:08:16] Speaker 00: a board judge to say, I think this is a term of art in the context of this whole patent, which is very dense. [00:08:27] Speaker 00: And so I'm going to look to the extrinsic evidence. [00:08:29] Speaker 00: And once he does that, he's got a more deferential standard of review, and he's got a fair amount of evidence that supports his ultimate construction. [00:08:41] Speaker 00: So where is the error in this circumstance? [00:08:45] Speaker 02: The error in this circumstance, first of all, there is something in the prosecution history. [00:08:51] Speaker 02: In the reasons for allowance, the examiner said that among other things, Martin was one of a list of patents that contained a series of elements, including a flow regulating valve. [00:09:10] Speaker 02: The error was also that originally, [00:09:14] Speaker 02: LISC told the board the 821 patent claims and specification provide context in forming a person of skill in the arts understanding of flow regulating valves. [00:09:25] Speaker 02: It was only after the IPR was instituted that they said, oh, we change our minds. [00:09:33] Speaker 02: It's a term of art, and we need extrinsic evidence. [00:09:36] Speaker 03: Mr. Margolis, are you making some kind of waiver or forfeiture argument that [00:09:40] Speaker 03: You're arguing the patentee was barred from arguing that flow regulating valve is an established term of art and so it was wrong for the board to find as such? [00:09:53] Speaker 02: It's more of a credibility argument. [00:09:55] Speaker 02: I'm not arguing waiver. [00:09:56] Speaker 02: We did not make that argument. [00:09:58] Speaker 03: What I'm arguing is... So why don't we just look at whether the extrinsic evidence supports the board's finding that flow regulating valve is in fact a [00:10:11] Speaker 03: established term of art in this technical field. [00:10:14] Speaker 03: And it means something that not only regulates flow, but it does so without any directional control capabilities. [00:10:25] Speaker 02: You would assume that, so the starting point is the term flow regulating valve, which is simple English and used in claims that say flow regulating valve to regulate the flow. [00:10:40] Speaker 02: What you have here is something that contradicts that because it adds that giant negative implication. [00:10:48] Speaker 02: You have the... Well, let's just start with a hypothetical. [00:10:54] Speaker 03: If hypothetically, this term, flow regulating valve, which I was not familiar with before this appeal, had a very specific, widely understood, long established [00:11:09] Speaker 03: definitional meaning in this particular art. [00:11:13] Speaker 03: Let's just assume that for a moment. [00:11:15] Speaker 03: Yeah. [00:11:15] Speaker 03: If that term did, then wouldn't we, for patent claim construction principles, need to abide by that definition unless there was something in the patent itself inside the intrinsic evidence that clearly intended a different meaning for the term? [00:11:34] Speaker 02: I would agree, Your Honor. [00:11:35] Speaker 02: If we had a dictionary definition or even one piece of literature defining flow-regulating valve in that way, it would fall under the proper use of extrinsic evidence under Phillips. [00:11:48] Speaker 03: Okay. [00:11:49] Speaker 03: So then here the Board did find, in its view, enough evidence to clearly establish in its mind that there was a definitional understanding for this claim term, flow-regulating valve. [00:12:04] Speaker 03: it then understood under ordinary claim construction principles when you presume that the patent drafter is using terms of art as they are understood unless the intrinsic evidence tells us otherwise. [00:12:24] Speaker 02: And we believe that the evidence, the extrinsic evidence didn't even give enough extrinsic evidence to change the plain meaning of flow regulating valve in a [00:12:34] Speaker 02: patent that uses the verb regulating flow to apply to direction control valves. [00:12:43] Speaker 03: Before you go, because I just heard your bell go off, could you just respond to what I saw on the record your own expert say about the meaning of a flow regulating valve, as they said they don't have any directional control capabilities at all, quote unquote. [00:13:04] Speaker 03: And the patent owner's expert here, likewise, in its declaration said that flow regulating valve is something that operates without providing directional control. [00:13:18] Speaker 02: I am happy to respond to both those points. [00:13:21] Speaker 02: First, if you read Dr. Labis's, Mr. Labis's, Professor Labis's deposition, including the [00:13:30] Speaker 02: question and answer immediately before what you're focusing on. [00:13:34] Speaker 02: And this is Appendix 562. [00:13:36] Speaker 02: He says, question, so in your opinion, then, all directional valves are flow regulating valves? [00:13:43] Speaker 02: Yes. [00:13:44] Speaker 02: Then he says in answer, what's the difference between directional valve and a flow regulating valve? [00:13:50] Speaker 02: The site you quoted, a flow regulating valve provides monitoring the amount of fluid. [00:13:56] Speaker 02: It doesn't have directional control capabilities. [00:13:58] Speaker 02: But then he goes on to say a directional valve has flow regulation capabilities and continues to go on to say he views directional valves as flow regulation valves. [00:14:10] Speaker 02: The most telling statement from Dr. Craig, LISC's expert, is when faced with what Martin is, which is a servo valve which has both direction and flow control, he did say it is a flow regulating valve. [00:14:27] Speaker 02: So when he applied it to both servo valves, which has both direction and flow control, and to Martin itself, he did admit that that's a flow regulating valve, which contradicts the view that there's that stark dichotomy that the board found. [00:14:47] Speaker 02: And I add, and then I will, I know I'm already using some of my rebuttal time, I'll add that you would expect to find some piece of literature [00:14:57] Speaker 02: with a definition of flow regulating valve or even discussion of flow regulating valve and that's simply not in the record. [00:15:05] Speaker 02: Thank you. [00:15:05] Speaker 02: I'll reserve the rest of my time for rebuttal. [00:15:07] Speaker 00: Okay. [00:15:08] Speaker 00: Thank you very much. [00:15:09] Speaker 00: Mr. Peterson. [00:15:10] Speaker 04: Thank you. [00:15:14] Speaker 04: May it please the court. [00:15:16] Speaker 04: The board correctly construed the term flow regulating valve and in the appeals this court should affirm. [00:15:23] Speaker 04: In the cross appeals, this court should reverse, proclaims 20 to 22 because the feedback mechanism of Martin connects to the device, not to the double acting actuator, proclaims 12 to 13 and 16 to 18 because Eggers does not teach different amounts of feedback, and proclaims one to five. [00:15:42] Speaker 03: Mr. Peterson, this is Judge Chen. [00:15:44] Speaker 03: Just so I understand, how does the outcome of this appeal interact with the pending district court litigation? [00:15:55] Speaker 03: I mean, obviously, if we somehow partially affirmed and partially reversed in such a way that all the claims are rendered unpatentable, that would end that district court litigation. [00:16:05] Speaker 03: But I'm wondering if there's some other outcome where the litigation is going to move on if certain of these claims survive over others. [00:16:16] Speaker 03: Is there an answer you have for that? [00:16:18] Speaker 04: Yes, Your Honor. [00:16:19] Speaker 04: If this court were to affirm in both the appeal and in the cross-appeal, the pending district court litigation would move forward. [00:16:27] Speaker 03: Would move forward? [00:16:28] Speaker 03: Yes. [00:16:29] Speaker 03: Okay. [00:16:30] Speaker 03: But just about any iteration of what we were to do here, barring that total rendering of the entire patent invalid, would the Iowa district court litigation move forward? [00:16:42] Speaker 04: Yes, Your Honor. [00:16:43] Speaker 04: That is essentially correct. [00:16:46] Speaker 04: Okay. [00:16:47] Speaker 00: Mr. Peterson, this is Judge Prost. [00:16:49] Speaker 00: Can I bring you to the claim construction discussion we were having with your friend? [00:16:54] Speaker 00: Because is it not sort of unusual under these circumstances? [00:17:00] Speaker 00: I guess my question is two-part. [00:17:02] Speaker 00: One, for the decision of the board judge to decide to go to extrinsic evidence and that this was a term of art. [00:17:13] Speaker 00: Usually, at least in my anecdotal experience, [00:17:16] Speaker 00: You know, there's loads of engineering dictionaries and texts. [00:17:20] Speaker 00: And you'd think that if one were going to feel like this is a term of art and not sort of just looking at its absolute plain and ordinary meaning, looking at the words, there'd be some further support other than expert testimony. [00:17:36] Speaker 00: I guess this is kind of an important issue in one respect because of the different standard of review for expert testimony. [00:17:45] Speaker 00: It seems like we don't want to open this can farther than it should be opened to allow courts, et cetera, to go to the extrinsic evidence in the first instance. [00:17:55] Speaker 00: That's part one. [00:17:56] Speaker 00: And part two, and I apologize for taking so long, is when you look at the actual extrinsic evidence that the board used, it seems to me a bit of a stretch. [00:18:09] Speaker 00: Because there's plenty of evidence to conclude that any valve with directional control could be a directional valve. [00:18:17] Speaker 00: But the board's conclusion was based on the two being mutually exclusive. [00:18:22] Speaker 00: And I didn't see that conclusion buttoned down in the expert testimony. [00:18:28] Speaker 00: So could you try to respond to both? [00:18:30] Speaker 00: Thank you, Your Honor. [00:18:32] Speaker 04: So let me first discuss briefly the turning to the extrinsic evidence. [00:18:37] Speaker 04: And I think what my friend argued for was that you look at the words in simple English. [00:18:43] Speaker 04: And I disagree with that because the fundamental principle of claim construction is that we read the words as they're used to want a skill in the art. [00:18:52] Speaker 04: And the Supreme Court in Teva versus Sandals and a number of this court's cases have told us that this is a classic use for extrinsic evidence. [00:19:01] Speaker 00: Well, are you saying this is a term of art? [00:19:04] Speaker 04: The board found that this was a term of art and it was a term that the board found had an ordinary meaning to a person of skill in the art. [00:19:12] Speaker 00: If it's a term of art in this field, I mean, wouldn't one normally not find, therefore, the meaning of this term of art in some sort of text as opposed to just relying on expert testimony? [00:19:28] Speaker 04: I think you would, but I think if you look, the board quoted this on appendix pages 21 and going to appendix page 23 as well. [00:19:38] Speaker 04: The merit reference talked about the functional classification of valves. [00:19:43] Speaker 04: And it noted these as different functional types, flow control valves and directional control valves. [00:19:50] Speaker 00: I'm sorry, you said page 21 of the board opinion? [00:19:54] Speaker 04: I'm sorry, page 24 of the board's opinion, I believe it's appendix [00:19:58] Speaker 04: No, I'm sorry, Your Honor. [00:19:59] Speaker 04: It is appendix page 21 in the 1902 appeal. [00:20:02] Speaker 04: OK, got it. [00:20:06] Speaker 04: And this is the board quoting the Merit reference. [00:20:08] Speaker 04: And Merit says, three broad functional types can be distinguished. [00:20:12] Speaker 04: And it lists two of those types as directional control valves and flow control valves. [00:20:18] Speaker 04: And then if you turn to appendix page 23, you see the hydraulics and pneumatics publication, which again is the board recognized contrast [00:20:27] Speaker 04: flow control valves and directional control valves. [00:20:31] Speaker 04: It talks about flow control valves on one hand and what they do and directional control valves on the other hand. [00:20:38] Speaker 03: Mr. Peterson, just to follow up on Chief Judge Prost's question, these general descriptions of directional control valves and then the reference in the HP2 about flow control valves, they don't really [00:20:58] Speaker 03: tell me anything about why a flow control valve necessarily lacks any directional control capabilities. [00:21:07] Speaker 03: I mean, I read all of this carefully, as I'm sure you did, and that seemed to be the missing link in all of this documentary evidence. [00:21:16] Speaker 03: And that's why I also, like Chief Judge Fros, found it curious that a supposed technical term of art like this [00:21:27] Speaker 03: Your side, which is very motivated, couldn't drum up any actual documentary evidence that would show us why it's correct to think of flow control valve as necessarily lacking any directional control capability. [00:21:48] Speaker 04: Well, I think what you take from the references is that flow control valves and directional control valves are understood to be different categories. [00:21:57] Speaker 04: That is, none of these references, none of the extrinsic evidence suggests in any way what my friend is suggesting, which is that there is a category of flow control valves known to those of skill in the art, and that directional control valves are just a subset of that. [00:22:14] Speaker 00: Because it's undisputed. [00:22:15] Speaker 00: Mr. Peterson, I'm sorry to keep pounding on you, but just to follow up on Judge Chen's point, I mean, the board went a little farther than that, though. [00:22:24] Speaker 00: They said that the terms are mutually exclusive. [00:22:28] Speaker 00: and that the flow-regulating valves must entirely lack directional control. [00:22:33] Speaker 00: That's a pretty stark, definitive definition, right? [00:22:40] Speaker 00: It's not just that they may. [00:22:42] Speaker 00: It's not just that they can. [00:22:43] Speaker 00: It's that they must, necessarily. [00:22:48] Speaker 00: And where is your best support for that in the record in terms of, I assume it's the expert testimony, [00:22:58] Speaker 00: Can you just point us to the best support for that conclusion? [00:23:03] Speaker 04: Yes, Your Honor. [00:23:04] Speaker 04: And that is exactly what I was going to point you to, which is appendix page 33. [00:23:08] Speaker 04: And it's the testimony of Gitz's expert. [00:23:11] Speaker 04: What is the difference between a directional valve and a flow regulating valve? [00:23:15] Speaker 04: A flow regulating valve ellipses does not have any directional control capabilities at all. [00:23:22] Speaker 04: And on substantial evidence review, there's no reason the board couldn't credit that testimony, which the board concluded was consistent with the extrinsic evidence that recognized flow regulating valve and directional control valve as separate categories. [00:23:38] Speaker 04: Thank you. [00:23:41] Speaker 04: With the course of permission, I'd like to turn briefly to the cross appeal. [00:23:45] Speaker 03: Before you do, I just had a quick hypothetical question when it comes to Martin. [00:23:50] Speaker 03: Obviously, Martin. [00:23:52] Speaker 03: Martin refers to, I believe, a directional valve 16 that the petitioner was pointing to as being the alleged flow regulating valve, right? [00:24:04] Speaker 03: Yes, Your Honor. [00:24:05] Speaker 03: And so, am I right to understand that the only difference between the Martin reference and these particular claims is that Martin at the tail end discloses a directional valve rather than a flow regulating valve? [00:24:24] Speaker 04: We believe there are other differences as well, including one that I'm planning on arguing as part of the cross appeal. [00:24:30] Speaker 04: However, the one relied upon by the board was the difference between the flow regulating valve and the directional control valve. [00:24:39] Speaker 03: Just hypothetically, why wouldn't it be obvious to substitute a directional valve in Martin? [00:24:45] Speaker 03: Or I mean, I'm sorry, a flow regulating valve in Martin for the [00:24:52] Speaker 03: directional valve that it uses at the end. [00:24:54] Speaker 03: Can you think of a reason? [00:24:56] Speaker 03: Because I was looking at Martin and I can't think of any earthly reason why it wouldn't be obvious to just slap in and substitute a flow regulating valve for its directional valve. [00:25:07] Speaker 04: Yes, Your Honor, actually, in the context of Martin, and the board touches on this just slightly, Appendix Page 44, the purpose of the main directional control valve 16 in Martin is to operate a double acting cylinder 18. [00:25:23] Speaker 04: And that's a double acting actuator. [00:25:25] Speaker 04: And as the patent makes clear, you need to have a directional control valve to operate a double acting actuator. [00:25:32] Speaker 04: And of course, the instituted ground isn't obviousness, it's anticipation. [00:25:39] Speaker 04: And so questions about whether it would have been obvious to substitute this in Martin were not before the board. [00:25:49] Speaker 04: Let me turn briefly to the cross appeal. [00:25:51] Speaker 04: And let me actually start with Martin. [00:25:53] Speaker 04: The easiest thing to do would be to look at the picture. [00:25:56] Speaker 04: It's on page 48 of our opening brief in the 1902 appeal. [00:26:03] Speaker 04: And you'll see a zoomed in picture colored in from Martin. [00:26:07] Speaker 04: So the claims 20 to 22 require... I'm sorry, could you give me that page number again? [00:26:11] Speaker 00: I'm very sorry. [00:26:13] Speaker 04: I'm sorry. [00:26:13] Speaker 04: Page 48 of our primary brief in the 1902 appeal claims 20 to 22 require a double acting actuator. [00:26:23] Speaker 04: Everyone agrees that Martin has a double acting actuator and that's Martin's double acting cylinder is labeled 46 in the picture. [00:26:31] Speaker 04: Martin tells us exactly what is inside that double acting cylinder. [00:26:37] Speaker 04: This is a quote from Martin. [00:26:39] Speaker 04: Piston 45 and bore 44 define a double acting cylinder 46, including two chambers 47 and 48. [00:26:48] Speaker 04: Notably, the previous sentence of Martin mentions spool 20, but it does not say that spool 20 defines the double acting cylinder. [00:26:56] Speaker 04: So claim 20 requires a connection between the double acting actuator and the device. [00:27:02] Speaker 04: If you look at the petition, it's on page 112 of the 1902 appendix. [00:27:06] Speaker 04: The petition says, well, piston 45 is attached to spool 20 of control valve 16. [00:27:15] Speaker 04: So everything makes perfect sense so far. [00:27:17] Speaker 04: Piston 45 is the double acting actuator. [00:27:20] Speaker 04: We're part of the double acting actuator. [00:27:22] Speaker 04: Spool 20 is the device. [00:27:24] Speaker 04: But there's a problem for this. [00:27:26] Speaker 04: Which is, if you look at Martin, you see the spring labeled 75, it doesn't connect to the double-acting actuator 46. [00:27:34] Speaker 04: It doesn't connect to piston 45, to the bore 44, or anything else that Martin tells us is part of that double-acting cylinder. [00:27:42] Speaker 04: Instead, Martin connects spring 75 to spool 20, which Gitz has previously told us is part of the device. [00:27:50] Speaker 04: So Gitz's solution to this problem [00:27:53] Speaker 04: in the petition and before the board was to take spool 20 and just color half of it red and call it part of the double acting cylinder. [00:28:03] Speaker 04: There are three problems with this issue. [00:28:05] Speaker 04: First, Martin tells you what defines its double acting cylinder. [00:28:10] Speaker 04: It says it is defined by piston 45 and bore 44. [00:28:13] Speaker 04: There is no mention in Martin of spool 20 being part of its double acting cylinder. [00:28:18] Speaker 04: And if you ask my friend just one question about this cross appeal, I would ask you to ask him, please point us to something in Martin that says spool 20 or any piece of it is part of Martin's double acting cylinder. [00:28:30] Speaker 04: Second, nothing supports dividing the school in half. [00:28:34] Speaker 04: There's no structural difference between these two pieces of school 20. [00:28:38] Speaker 04: There's no material difference. [00:28:39] Speaker 04: They don't work differently. [00:28:40] Speaker 04: This is really just petitioner working backwards and saying, well, we need the spring to connect to the double acting actuator. [00:28:47] Speaker 04: It touches the school. [00:28:48] Speaker 04: Therefore, we'll call that part of the school part of the double acting actuator. [00:28:52] Speaker 00: Mr. Peterson, I had trouble with this argument from the briefing. [00:28:57] Speaker 00: It's hard for me to buy it. [00:29:00] Speaker 00: as it's clear that different regions of one structure are being mapped to each limitation, not one structure doing double duty as you suggest. [00:29:10] Speaker 00: I mean, how is this different? [00:29:12] Speaker 00: Let's say we have a claim to a hammer having a head, a claw, and a handle. [00:29:16] Speaker 00: If we found a prior out hammer that had one single piece of metal, it seems controversial to say that all those limitations could be met by one piece of metal, and that wouldn't be improper. [00:29:27] Speaker 00: So I don't understand how this is any different than that. [00:29:31] Speaker 04: But Your Honor, we don't disagree with that principle in the abstract as it relates to the hammer. [00:29:36] Speaker 04: The problem here is that there's no principled reason for saying this part of the spool is part of the double acting actuator and this part of the spool is the device. [00:29:45] Speaker 04: It's not as though you have a separate hammer and a claw. [00:29:48] Speaker 04: You simply have one undifferentiated piece of metal that solely in order to meet the requirements of the claims is being divided in half [00:29:56] Speaker 04: by the patentee. [00:29:57] Speaker 04: And if you look at the board, the board dealt with this in essentially a single sentence in its analysis. [00:30:02] Speaker 03: Mr. Peterson, this is Judge Chen. [00:30:05] Speaker 03: When I look at your spec of your 821 patent at column four, lines 23-24, it talks about a shank 70 connected to the piston head 62. [00:30:24] Speaker 03: And when you look at the figure, [00:30:26] Speaker 03: of that piston with shank 70 and head 62, it's a unitary structure, and yet the patent itself describes one designated portion of that integral structure to be connected to another portion of that integral structure. [00:30:50] Speaker 03: So, I mean, doesn't the patent itself suggest that the term connected to [00:30:55] Speaker 03: could be connecting one zone of an integral structure to another zone of an integral structure? [00:31:10] Speaker 04: Your Honor, I certainly think that is possible. [00:31:14] Speaker 04: But the question here is whether there is any support, evidentiary support in the record, I would say, for dividing the spool in half. [00:31:22] Speaker 04: And what I was going to say is if you look at the board's analysis of this, which you find on appendix page 47, the board says although Martin does not expressly include Spool 20 as part of its double acting cylinder, petitioner recognizes that at least part of Spool 20 is required to enable the movement of Piston 45 and Board 44. [00:31:42] Speaker 04: The board's support for that is not expert testimony. [00:31:45] Speaker 04: The board's support for that is attorney argument from the hero. [00:31:49] Speaker 04: And there's no question of whether that is consistent with the connection argument. [00:31:54] Speaker 04: With the court's permission, and I know I'm into my rebuttal time, I'd like to turn just very briefly to Eggers with the hopes of readdressing it on rebuttal. [00:32:03] Speaker 04: And the easiest here would be looking at the figure from Eggers. [00:32:11] Speaker 04: You can find it on page 177 of the appendix in the 1250 appeal. [00:32:21] Speaker 04: The key to the 821 patent is maintaining its directional control valve in a neutral opinion, neutral position by balancing a strong force from the electric actuator on one side against a strong force from the double acting actuator and a feedback mechanism on the other side. [00:32:42] Speaker 04: The harder the electrical actuator pushes on one side, the harder the double acting actuator pushes on the other. [00:32:50] Speaker 04: Strength is balanced against strength. [00:32:52] Speaker 04: Eggers also maintains its directional control valve 9 in a neutral position, but it does so using an exactly opposite mechanism. [00:33:01] Speaker 04: If you look spring 13, the top of Eggers is fixed. [00:33:05] Speaker 04: Whenever directional control valve 9 is in a neutral position, it remains, there is exactly the same force pulling on it. [00:33:12] Speaker 04: in Spring 2013. [00:33:14] Speaker 04: Anders doesn't balance a strong force against a strong force, it mechanically reduces the force being provided by the electric actuator. [00:33:23] Speaker 04: As a result of that different mechanism, Eggers doesn't have feedback between the double acting actuator and the directional valve that overcomes the force and part of the directional valve. [00:33:34] Speaker 04: Eggers doesn't have different amounts of feedback between the double acting actuator and the directional valve at the neutral position. [00:33:42] Speaker 04: No matter where double acting actuator five is, there is exactly the same force. [00:33:47] Speaker 04: exactly the same feedback on directional control valve nine. [00:33:50] Speaker 00: Well, Mr. Peterson, I don't want to take too much of your time, but it seems to me, I mean, this is a complicated, difficult question that's before us. [00:33:58] Speaker 00: But why didn't you ask for claim construction about what feedback or amount of feedback mean? [00:34:05] Speaker 00: Seems like it would have gone a long way to helping us resolve this. [00:34:09] Speaker 04: I think that is correct, Your Honor. [00:34:12] Speaker 04: It would have been helpful to have had a claim construction on that. [00:34:14] Speaker 04: But the key, from our perspective, is that whatever feedback means, there are not different amounts of it, depending on the different position of the double-acting actuator, because of how Egers works with force. [00:34:26] Speaker 03: And then finally, with proportionality, if you look... I guess claim construction would have helped me, because I didn't see anywhere in your briefing where you actually walk us through an explanation of what this claim limitation even means. [00:34:39] Speaker 03: moving a double actuator through a range of positions corresponding to different amounts of feedback between the double acting actuator and the directional valve at the neutral position of the directional valve. [00:34:49] Speaker 03: I mean, that's a lot to try to take in. [00:34:51] Speaker 03: And I confess, I don't really understand what your conception of what this means is. [00:35:00] Speaker 03: And then beyond just simply attacking Eggers thing, whatever these limitation means, that Eggers doesn't have it. [00:35:10] Speaker 04: Your Honor, may I walk you through that? [00:35:13] Speaker 04: I think it would be helpful to look at figure three of our principal brief in the 1250 appeal. [00:35:41] Speaker 04: And I'm sorry, it's on page 7 of our main brief in the 1250 appeal. [00:35:58] Speaker 04: Your Honor? [00:35:58] Speaker 00: Yeah, OK. [00:36:00] Speaker 00: We're on it. [00:36:02] Speaker 04: Thank you. [00:36:02] Speaker 04: I'm sorry. [00:36:03] Speaker 04: I heard beeping. [00:36:04] Speaker 04: So this is a color-coded version of the 821 patent in Figure 3. [00:36:12] Speaker 04: If you look, the gold color is the flow of engine oil through the patent. [00:36:19] Speaker 04: The piece colored orange is the directional valve. [00:36:24] Speaker 04: And this is what's truly clever about the patent, is it maintains that directional valve in a neutral position while it is operating. [00:36:32] Speaker 04: So in that neutral position, there is no flow going to either side of the double acting actuator. [00:36:40] Speaker 04: That's what's colored blue. [00:36:41] Speaker 04: Now, what would happen if you wanted to move the double acting actuator is the electric actuator, that's number 126 to the right of that directional valve, would push harder. [00:36:54] Speaker 04: And it continues to push. [00:36:56] Speaker 04: And so it pushes that directional control valve to the left. [00:37:01] Speaker 04: When it pushes that directional control valve to the left, fluid is directed to the left side of the double acting actuator, that's the blue [00:37:12] Speaker 04: When fluid is directed to that left side of the double acting actuator, it begins to move to the right, compressing the compression spring that is in between the double acting actuator and the directional control valve. [00:37:28] Speaker 04: As it pushes to the right, that spring compresses, which exerts force on the directional control valve, which returns that directional control valve to the neutral position. [00:37:39] Speaker 04: The harder the electrical actuator pushes from the right and starts to push that directional control valve to the left, the harder the double acting actuator has to push in the opposite direction to maintain that directional control valve in a neutral position. [00:37:57] Speaker 04: Similarly, if you release the force on the electric actuator 126, what that causes is for the directional control valve to shift to the right. [00:38:08] Speaker 04: When it shifts to the right, it directs fluid to the right side of the double acting actuator. [00:38:13] Speaker 04: The directional control valve then begins to move to the left, releasing pressure on the spring so that the directional control valve then returns to the neutral position in the middle. [00:38:25] Speaker 04: So you have this [00:38:26] Speaker 04: Essentially, the harder the electrical actuator pushes on that directional control valve from one side, the harder the double acting actuator pushes on the other. [00:38:37] Speaker 04: So you have feedback from between the double acting actuator and the directional valve that overcomes the force imparted to the directional valve by the electrical actuator and that force [00:38:50] Speaker 04: both from the electrical actuator and in between the directional control valve and the double acting actuator, is proportional to the control signal that's operating on the electrical actuator, which is a solenoid. [00:39:02] Speaker 00: Mr. Peterson, we are going to have to sort of bring this to a close. [00:39:05] Speaker 00: Do you have anything more? [00:39:07] Speaker 00: I don't remember right now. [00:39:08] Speaker 00: I don't remember what Judge Chen's question was. [00:39:11] Speaker 00: So can you finish responding to his question? [00:39:17] Speaker 04: I believe the question was how the 821 patent operates with the phrase about the feedback between the double acting actuator. [00:39:26] Speaker 04: I withdraw the question. [00:39:29] Speaker 04: I apologize that I even asked it. [00:39:32] Speaker 04: Thank you. [00:39:33] Speaker 04: I'm sorry. [00:39:33] Speaker 04: One final point on this. [00:39:36] Speaker 04: The board found, if you look at appendix page 15 to 16 in the 1250 appeal, that the force acting on the directional control valve has to be proportional to the control signal. [00:39:48] Speaker 04: That's how the 821 patent works. [00:39:50] Speaker 04: That's not how EGRS works. [00:39:52] Speaker 04: As best I can tell on this briefing record, everyone agrees the board got that wrong. [00:39:57] Speaker 04: If you look at page 44 of my friend's brief in the 1250 appeal, he doesn't say the board correctly held that the force was proportional in Eggers. [00:40:06] Speaker 04: Instead, what he said is, no, the force doesn't have to be proportional. [00:40:11] Speaker 04: That's a challenge to the board's claim construction. [00:40:13] Speaker 04: That's not a defense of the board's reasoning. [00:40:16] Speaker 00: OK, thank you. [00:40:17] Speaker 04: And thank you especially for the additional talk. [00:40:19] Speaker 00: Okay, well, we'll restore some time if Mr. Margolis reaches the cross-appeal questions. [00:40:25] Speaker 00: Now, Mr. Margolis, you've got some time left. [00:40:28] Speaker 00: Can I just ask you one question on the main appeal for your quick response? [00:40:32] Speaker 00: Sorry to take your time, but your friend got sort of the strongest evidence he has and the testimony on page, on appendix 33, and that was your expert, right, Mr. Labas? [00:40:49] Speaker 00: Mr. Margolis, can you hear me? [00:40:52] Speaker 02: Yes, sorry, Your Honor. [00:40:53] Speaker 00: And so do you have any, did you hear my question? [00:40:58] Speaker 02: I did. [00:40:59] Speaker 02: And my response to that is, while Mr. Labis did say that, and while that is their strongest evidence, Mr. Labis immediately before that colloquy, and when I say immediately before, the question before said, in his view, all directional valves [00:41:19] Speaker 02: are flow regulating valves. [00:41:22] Speaker 02: So this at worst would make this a misstatement by Mr. Labis because he immediately thereafter added that directional valves are flow regulating valves. [00:41:35] Speaker 02: So standing alone, he did make this comment. [00:41:38] Speaker 03: This is Judge Chen. [00:41:39] Speaker 03: Yes. [00:41:40] Speaker 03: He very clearly said flow regulating valves do not have any directional control capabilities at all. [00:41:47] Speaker 03: Now, he may have also said the directional control valves have flow regulation abilities, but that doesn't necessarily mean that the converse is true, that flow regulating valves also have directional control capability. [00:42:01] Speaker 03: That seems to be the consistent distinction I see that both the experts are making. [00:42:07] Speaker 03: Directional valves have directional control capabilities and secondarily can have flow regulation abilities, but when it comes to directional [00:42:16] Speaker 03: When it comes to flow regulating valves, they regulate flow, but they do not have any directional control capabilities at all. [00:42:24] Speaker 03: And that's why you can classify one thing a flow regulating valve and classify another thing as a directional control valve, rather than them both having the same identical functions. [00:42:36] Speaker 03: Otherwise, you wouldn't be able to tell one from the other. [00:42:39] Speaker 02: However, Your Honor, what Mr. Labis says on Appendix 562 [00:42:46] Speaker 02: Question, so in your opinion, then, all directional valves are flow-regulating valves? [00:42:53] Speaker 02: Yes. [00:42:54] Speaker 02: So when he is directly asked the question on how do you characterize directional valves or valves with directional capabilities, he says they are flow-regulating valves, which is why his statement is a misstatement by him. [00:43:16] Speaker 02: And I think we point that out through the language right here, because he said. [00:43:22] Speaker 03: Did he ever try to clean it up at all? [00:43:24] Speaker 03: I know your position is he goofed. [00:43:27] Speaker 03: He made a boo-boo. [00:43:28] Speaker 03: But is there any place where this got cleaned up? [00:43:32] Speaker 02: There is not a place where it got cleaned up. [00:43:35] Speaker 02: I mean, he called direction valves, flow regulating valves, immediately thereafter. [00:43:42] Speaker 02: But is there a question answer where it's a clean up? [00:43:45] Speaker 02: No, there is not. [00:43:46] Speaker 03: Okay, how about that arm and the feedback limitation? [00:43:51] Speaker 03: Pretend hypothetically that I don't understand the board's reasoning. [00:43:57] Speaker 03: Can you explain to me, can you walk me through this limitation and why Eggers discloses moving the double acting actuator through a range of positions corresponding to different amounts of feedback between the double acting actuator and the directional valve with the neutral position of the directional valve? [00:44:14] Speaker 02: What I can point out is that in the record, what Eggers has is a collection of rods, pistons, and a feedback arm that constantly move the piston back to the starting position so that it's adjusted so that new pressure ratios in the working cylinder reverse the original actuating movement. [00:44:44] Speaker 02: And what in an uncontested way our experts stated and cited by the board on Appendix 61, Eggers discloses providing feedback between piston five and control pistons nine that overcomes the force imparted to control pistons and restores the control pistons to a neutral position at which differential flows of compressed air to the first and second [00:45:12] Speaker 03: That's a different claim limitation. [00:45:15] Speaker 03: My question is about the limitation after that. [00:45:19] Speaker 03: Can you please, I'm looking at a picture of the Eggers figure, at the Eggers diagram right now, and now I've got the claim limitation that I'm very concerned about regarding different amounts of feedback also right next to the Eggers diagram. [00:45:35] Speaker 03: Can you walk me through Eggers, the diagram, and show me why the board [00:45:40] Speaker 03: correctly found that this particular limitation about different amounts of feedback is disclosed in this diagram? [00:45:52] Speaker 02: Yes. [00:45:52] Speaker 02: As the board said, feedback is not the same as force. [00:46:00] Speaker 02: So what the board found is that when feedback means the return [00:46:07] Speaker 02: to the input of a part to the output of the machine. [00:46:11] Speaker 02: So that that is exactly what is happening in Edgert's. [00:46:16] Speaker 02: That when it is moving and the pulses are stopping, it is put back into, I don't want to say the start position, but the position where [00:46:32] Speaker 02: it will move when the pulses start again. [00:46:36] Speaker 03: I'm sorry, I'm not seeing how this lines up with the claim limitation at all. [00:46:44] Speaker 03: We know from the prior limitation that when you provide feedback, whatever that word means, feedback, it overcomes the force imparted to the directional valve and restores the directional valve to a neutral position. [00:46:56] Speaker 03: We know that. [00:46:58] Speaker 03: Now I'm looking for something called different amounts of feedback in the Egger's diagram right now that apparently corresponds to moving the double acting actuator through a range of positions. [00:47:13] Speaker 03: You get this different amount of feedback when the directional valve is sent back to its neutral position. [00:47:23] Speaker 03: So can you walk us through that? [00:47:27] Speaker 02: I'm actually not sure that I can. [00:47:33] Speaker 02: I'm trying to follow it on the diagram right now. [00:47:36] Speaker 02: And I think what is the issue is its feedback, which moves it back, depends on the position that it is left in. [00:47:50] Speaker 02: And what I can do is just say that [00:47:54] Speaker 02: As was said in the record, as our expert said, each of these positions of the feedback arm provides a different amount of feedback between the piston five, the double acting actuator, and the control pistons, regardless of the force applied by the spring. [00:48:10] Speaker 02: So that by changing its positions, regardless of the force of the spring, that's the differing amount of feedback. [00:48:20] Speaker 03: So let me get this straight. [00:48:22] Speaker 03: It's the relative position, the relative height of feedback arm four? [00:48:26] Speaker 03: That's what the different amounts of feedback is? [00:48:30] Speaker 02: It's the combination of the piston, the rod, and the arm, which all together move it back to the proper position. [00:48:46] Speaker 03: But what is the different amounts of feedback? [00:48:50] Speaker 03: in Eggers. [00:48:55] Speaker 02: What is it? [00:48:55] Speaker 02: It's not necessarily the force. [00:49:00] Speaker 02: It is the collection of the parts together putting it back in the same place. [00:49:10] Speaker 03: Collection of parts putting it back in the same place. [00:49:13] Speaker 03: I don't see. [00:49:14] Speaker 03: You've got to help me. [00:49:16] Speaker 03: Please help me. [00:49:17] Speaker 03: That was not precise enough. [00:49:19] Speaker 03: Okay. [00:49:28] Speaker 02: Give me one second here. [00:49:45] Speaker 02: Going back to our expert report, [00:49:48] Speaker 02: In the Eggers device, negative input signals cause the motor to unwind the cable pole. [00:49:55] Speaker 02: This triggers a control process for compressed air, which processes opposite of that described above, and therefore causes the working piston to drop and the valve to close. [00:50:08] Speaker 02: There's a neutral position shown in figure one of Eggers, where the compressed air and the atmosphere is blocked through lines seven and eight. [00:50:18] Speaker 02: And then what our expert says is a person of ordinary skill in the art would have understood that restoring control pistons nine to a neutral position would block differential flows of compressed air through seven and eight to the first and second surfaces of working piston five and prevent upward or downward movement. [00:50:38] Speaker 03: No, but then computing any of that understanding of Eggers, that's straightforward and easy to understand. [00:50:44] Speaker 03: Right. [00:50:46] Speaker 02: And then what he goes on to say, [00:50:49] Speaker 02: At each corresponding distance unit, the arm four applies feedback between working piston five and control pistons nine, which a person of ordinary skill in the art would have recognized as functioning to overcome the force imparted to control pistons nine to reverse the actuating movement and return to neutral. [00:51:11] Speaker 02: And how does it apply different amounts of feedback? [00:51:14] Speaker 02: So finally he says thus, [00:51:16] Speaker 02: As piston five is moved through a range of positions, arm four applies different amounts of feedback, and the expert cites Eggers at four, four to six, and five, 20, six to one. [00:51:29] Speaker 02: A person of ordinary skill in the art thus would have understood that Eggers discloses moving working piston through a range of positions corresponding to different amounts of the feedback between working piston and control pistons at the neutral position. [00:51:44] Speaker 03: Okay, we're back where I started, which is all I'm getting out of that is that the relative height and position of the feedback arm is somehow, is itself the different amounts of feedback? [00:52:06] Speaker 03: Or somehow correlates to different amounts of feedback, but I don't just, [00:52:12] Speaker 03: your expert asserting that it is so doesn't explain to me why that is so. [00:52:16] Speaker 02: Well, there's nothing contradicting that in the record. [00:52:23] Speaker 02: And what he says is a person of ordinary skill in the art would recognize that the feedback arm is functioning to overcome the force imparted. [00:52:35] Speaker 02: So as the piston [00:52:39] Speaker 02: goes through different positions, the arm applies different amounts of feedback. [00:52:45] Speaker 02: How? [00:52:48] Speaker 02: I cannot tell you. [00:52:50] Speaker 00: OK. [00:52:54] Speaker 00: OK. [00:52:55] Speaker 00: Time has expired. [00:52:57] Speaker 00: Mr. Peterson, I think we're restoring rebuttal time. [00:53:02] Speaker 00: So we'll restore three minutes of rebuttal, unless there are questions that need to be answered. [00:53:09] Speaker 04: Thank you, Chief Judge Prost. [00:53:12] Speaker 04: I know I went far beyond my time already. [00:53:14] Speaker 04: So unless the court has questions, I will happily return my rebuttal time. [00:53:20] Speaker 00: Hearing none, thank you. [00:53:24] Speaker 00: We thank both sides and the cases are submitted. [00:53:28] Speaker 02: Thank you, Your Honor.