[00:00:00] Speaker 00:
Our first case for argument this morning is 20-1237, seabed geosolutions versus magsius.

[00:00:09] Speaker 00:
Mr. Lane, please proceed.

[00:00:12] Speaker 02:
Thank you, Your Honor.

[00:00:16] Speaker 02:
The reissued 245268 patented issue in this appeal addresses devices called seismometers.

[00:00:23] Speaker 02:
The only issue in the appeal is the claim construction of the term geophone internally fixed within, which the board construed as a non-gimbled geophone.

[00:00:35] Speaker 02:
Based solely on this construction, the board then distinguished all the prior art of record which describes seismometers with gimbaled geophones.

[00:00:45] Speaker 02:
However, the 268 patent specification never mentions anywhere non-Gimbled geophones, nor does it mention anywhere Gimbled geophones.

[00:00:58] Speaker 02:
Likewise, neither Gimbled or non-Gimbled geophones are mentioned anywhere in the prosecution history of the 268 patent or in any of the prosecution histories of the 268 patents to parent patents.

[00:01:13] Speaker 02:
So the single feature non-gimbaled geophones that the board found distinguished all the prior art of record is never discussed in the patent or the prosecution history.

[00:01:24] Speaker 02:
That should, as an initial matter, raise some red flags in our opinion.

[00:01:30] Speaker 02:
Moreover, the intrinsic evidence, both the specification and the prosecution history, make clear that the board's construction is erroneous.

[00:01:42] Speaker 02:
Many early seismometers had a geophone in one case and all the other components of the seismometer in another case with the two cases connected by electrical wires or cable.

[00:01:56] Speaker 02:
But that arrangement, having two cases connected by wires or cable, presented various problems.

[00:02:03] Speaker 02:
For example, when a seismometer is on the ocean floor, small currents on the ocean bottom could move the cable, and the geophones would detect that movement, causing unwanted noise in the data.

[00:02:16] Speaker 04:
Mr. Lane?

[00:02:16] Speaker 02:
Yes.

[00:02:17] Speaker 04:
This is Judge Chen.

[00:02:19] Speaker 04:
We have very limited time, so let me see if we can cut to the chase.

[00:02:24] Speaker 04:
Assume for the purposes of this question, this is just a hypothetical, that the extrinsic evidence

[00:02:32] Speaker 04:
in this record makes it clear or clear enough that there was a default understanding in this art for the meaning of the term fixed and fixed necessarily excluded gimbaled geophones.

[00:02:48] Speaker 04:
So if that is the case, then the next question becomes what is in the prosecution history that makes it clear or clear enough

[00:03:00] Speaker 04:
that the claim usage of the term fixed is somehow something more of a generic usage.

[00:03:09] Speaker 04:
And it's not the more technical understanding of excluding the gimbal geophone.

[00:03:17] Speaker 02:
Yes, Your Honor.

[00:03:18] Speaker 02:
So the language internally fixed was added to the claim language during prosecution.

[00:03:25] Speaker 02:
It doesn't appear anywhere in the patent.

[00:03:30] Speaker 02:
It was added to overcome a rejection over two prior art patents, the Thornhill and Orbit.

[00:03:40] Speaker 02:
And in discussing those rejections, the examiner indisputably used the term fixed inside to describe geophones that are permanently attached and operate while inside a seismometer's case, which was in distinction to the way Thornhill's

[00:03:57] Speaker 02:
geophone work.

[00:03:59] Speaker 02:
It was ejected from the case and driven into the crowd.

[00:04:01] Speaker 00:
It might be helpful if you would direct us to the pages in the appendix that correspond to the portion of the prosecution history that you are referring to.

[00:04:09] Speaker 02:
Right.

[00:04:10] Speaker 02:
So at Appendix 3059, the examiner stated that

[00:04:16] Speaker 02:
Orban teaches that seismic sensors, or geophones, can be coupled to the earth to sense seismic signals while being fixed inside of the housing of the device containing the geophone.

[00:04:30] Speaker 02:
In the very next sentence, again on Appendix 3059, the examiner explained he was referring to an enclosed case

[00:04:39] Speaker 02:
with a geophone inside the census seismic waves while keeping the geophone in the protective case instead of ejecting the geophone from the case to implant the geophone in the ground.

[00:04:56] Speaker 02:
In direct response to those objections, the applicants amended the claim language from geophone disposed with inset housing to geophone internally fixed with inset housing.

[00:05:08] Speaker 02:
Those claim amendments are Appendix 3077 to 3079.

[00:05:15] Speaker 02:
So again, the examiner said, used the term fixed inside, Appendix 3059, and in the very next sentence, clearly explained that he was referring to geophones that stay inside the case of a seismometer.

[00:05:31] Speaker 02:
And the applicant then, in direct response to that, amended the claims to mirroring that language, adding internally fixed to the claim.

[00:05:42] Speaker 02:
In contrast,

[00:05:43] Speaker 02:
Neither the applicants or the examiners ever mentioned gimbaled or non-gimbaled geophones, and neither does Thornhill.

[00:05:50] Speaker 02:
There's never any mention of gimbaled or non-gimbaled geophones anywhere in the specification or the prosecution history.

[00:06:00] Speaker 03:
Mr. Lane, this is Judge Lynn.

[00:06:03] Speaker 03:
Is the geophone in Thornhill gimbaled?

[00:06:08] Speaker 02:
No, Your Honor.

[00:06:10] Speaker 02:
Thornhill has what's called a self-orienting mechanism, a very complicated mechanism.

[00:06:17] Speaker 02:
But Thornhill never uses the word gimbal.

[00:06:22] Speaker 02:
Mag Stice's arguments on the prosecution history depend entirely on Thornhill's self-orienting mechanism being a gimbal, but it's not.

[00:06:32] Speaker 02:
There's simply no evidence in the record that's true.

[00:06:35] Speaker 02:
Again, Thornhill

[00:06:38] Speaker 02:
never used the word gimbal as MagSys concedes in its red brief at 14.

[00:06:45] Speaker 02:
The applicants and examiner never mentioned gimbals in discussing Thornhill.

[00:06:50] Speaker 02:
Their discussion of Thornhill was at Appendix 3055 to 3062 and Appendix 3083 to 3084.

[00:06:59] Speaker 02:
MagSys never submitted any expert declaration explaining that Thornhill's self-orienting mechanism was a gimbal, even though its technical experts submitted a 76-page expert declaration discussing many other technical details.

[00:07:14] Speaker 02:
That declaration is Appendix 2722 to 2797.

[00:07:20] Speaker 02:
And MagSys argued below that Thornhill's self-orienting mechanism was a gimbal, but the board didn't make any such findings.

[00:07:30] Speaker 04:
Mr. Lane, this is Judge Chen again.

[00:07:33] Speaker 04:
We're going to hear from the other side that when you use the term internally fixed to distinguish Thornhill, you use the word fixed in your amendment as a skilled artisan would.

[00:07:47] Speaker 04:
And a skilled artisan would understand the word fixed to exclude gimbal geophones.

[00:07:54] Speaker 04:
So if there's

[00:07:56] Speaker 04:
And I think that's why we need to look at your other prosecution history statements that might clarify, what did you mean?

[00:08:04] Speaker 04:
What did your client mean when it used the word fix?

[00:08:09] Speaker 02:
Right.

[00:08:10] Speaker 02:
Exactly, Your Honor.

[00:08:11] Speaker 02:
So in the reissue, this is a reissue patent, a 37 CFR.

[00:08:17] Speaker 04:
Mr. Lane, before we get there to your additional prosecution history statement,

[00:08:22] Speaker 04:
The other side argues that it's too late for you to raise them now in the first instance on appeal.

[00:08:29] Speaker 04:
You may have cited to them, but at the same time, you never really relied on them in the way that you're relying on them now on appeal.

[00:08:39] Speaker 04:
Could you get to the waiver question first before you walk us through the prosecution history?

[00:08:45] Speaker 02:
Right.

[00:08:45] Speaker 02:
So the single claim construction issue in this appeal was one of many, many arguments, mag size rates below, which you can see a summary of their arguments at appendix 332 to 335.

[00:08:58] Speaker 02:
But the board based its entire decision on this single issue at appendix 23 to 24 and appendix 27.

[00:09:07] Speaker 02:
On appeal, though,

[00:09:11] Speaker 02:
For example, an interactive GIF versus CompuServe, which we cited in our briefs, is 256 F3D 1323.

[00:09:22] Speaker 02:
The court held that arguments that are based on specification and evidence and that are in support of an existing claim construction are not barred by the doctrine of waiver for the sole reason that they were not presented to the trial court.

[00:09:36] Speaker 02:
So here you have this myriad of issues, but the board focused on this

[00:09:41] Speaker 02:
thin slice of the pie in making its determinations.

[00:09:45] Speaker 02:
So, of course, we've expanded on that from the arguments below, but all of these prosecution histories were cited below.

[00:09:52] Speaker 02:
All of them were in the record, and they were all cited below for the exact same claim construction issue and the exact same position that CBED proffers on appeal.

[00:10:04] Speaker 02:
You can see that at Appendix 450.

[00:10:07] Speaker 00:
Council, thank you for that answer.

[00:10:11] Speaker 00:
It's very clear.

[00:10:13] Speaker 00:
My question about the precedent you cited, it made it sound like almost any evidence would be fair game to rely upon on appeal.

[00:10:23] Speaker 00:
Is that your position of our law with regard to claim construction or is it somehow limited to say portions of the intrinsic record or something like that?

[00:10:35] Speaker 02:
Right.

[00:10:36] Speaker 02:
Yes, Your Honor.

[00:10:36] Speaker 02:
It's limited to the intrinsic evidence.

[00:10:39] Speaker 02:
So in interactive gift, the quote I just read, and I won't read you back, but it said based on the specification.

[00:10:48] Speaker 02:
And here we're relying on the prosecution history, which is also intrinsic evidence.

[00:10:54] Speaker 02:
We don't see any principled reason the prosecution should be treated differently than the specification in this regard.

[00:11:00] Speaker 02:
Again, both are intrinsic.

[00:11:02] Speaker 02:
And again, here, all the prosecution history CBED cited in its blue brief was, quote unquote, in evidence below and was cited for the exact same arguments that we cited for now.

[00:11:15] Speaker 00:
Given our limits in time, I'd like to ask you to move on.

[00:11:18] Speaker 00:
Are there additional portions of the prosecution history that you now want to reach that respond to Judge Chen's earlier question?

[00:11:25] Speaker 02:
Yes, Your Honor.

[00:11:26] Speaker 04:
So we're about to move as the appendix

[00:11:28] Speaker 04:
Page 710, right?

[00:11:32] Speaker 02:
Yes, Your Honor, exactly.

[00:11:34] Speaker 02:
So years before this IPR, when no one was looking, the applicants explained to the Patent Office for purposes of patentability in their reissue application that the claim language, quote, at least one geophone internally fixed within said internal compartment

[00:11:53] Speaker 02:
conveys, with more than reasonable certainty to want to skill in the art, a seismic data collection that includes one geophone disposed and electrically connected within the internal compartment.

[00:12:05] Speaker 02:
And that, again, is Appendix 710.

[00:12:08] Speaker 02:
They never said anything about gimbal geophones when they were required to explain where the specification support existed for that claim.

[00:12:20] Speaker 00:
Please continue.

[00:12:23] Speaker 02:
Well, I've used up my time, Your Honor.

[00:12:27] Speaker 02:
I'm happy to answer any more questions, but I'd like to reserve my remaining time for a little.

[00:12:32] Speaker 00:
Okay, Mr. Lane, that's fine.

[00:12:34] Speaker 00:
Mr. Rodriguez, please proceed.

[00:12:40] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:12:43] Speaker 01:
So Steve's argument here is that the construction is inconsistent with the intrinsic record in an attempt to avoid considering the extrinsic record.

[00:12:53] Speaker 01:
But this is not a case where the intrinsic record suggests that the claims must covered in both geophones.

[00:13:01] Speaker 01:
And I do want to clarify one point.

[00:13:03] Speaker 01:
Magspice's proposed construction below was that the internally fixed geophone that's claimed in the claims is a geophone that does not move.

[00:13:12] Speaker 01:
That internally fixed means that it does not move.

[00:13:15] Speaker 01:
As a consequence of that, gimbal geophones would be excluded.

[00:13:19] Speaker 01:
I just want to clarify that because the advanced construction was not simply that non-gimbal geophones would be excluded.

[00:13:30] Speaker 01:
And in support of that, below, before the board, Max Zeiss argued that the specification and the written description actually did support its proposed construction.

[00:13:40] Speaker 04:
And especially... Mr. Rodriguez, this is Judge Chen.

[00:13:43] Speaker 04:
What is the claim instead of saying internally fixed within the housing, it said internally mounted within the housing?

[00:13:53] Speaker 04:
Um, it could... Does that include a gimbal geophone?

[00:13:58] Speaker 01:
If it was internally mounted, I don't necessarily believe that would exclude a gimbal geophone.

[00:14:05] Speaker 04:
However, I do want to stress about... When I read through the specification, there's only really one location in the patent spec that talks about how the geophone is connected to the housing.

[00:14:23] Speaker 04:
And at column 6, line

[00:14:27] Speaker 04:
43 it says it will be further noted that Geophone 18 is internally mounted within pod 10 and thus requires no external wiring or connection.

[00:14:42] Speaker 04:
So as far as I can tell that's the only written description support for understanding the claim phrase Geophone internally fixed within the housing.

[00:14:54] Speaker 04:
And so

[00:14:56] Speaker 04:
Why would it be wrong to understand usage of the claim term fixed in the same way as the spec describes the geophone being mounted within the housing?

[00:15:14] Speaker 01:
Yes, Ron, may I address that question?

[00:15:16] Speaker 02:
Yes.

[00:15:18] Speaker 01:
So I think it's important, well first I would note the words mounted and fixed are different words.

[00:15:24] Speaker 01:
And part of the argument below in support of MagSys's construction was the plain meaning of the term fixed and how it doesn't support movement.

[00:15:33] Speaker 01:
Now at the end of the day the board found the specification and everything ambiguous and we'll get to that.

[00:15:36] Speaker 01:
But let me stop for a moment and describe, sort of reiterate our argument as to why we did believe the specification does support MagSys's construction of fixed.

[00:15:46] Speaker 01:
The first is the plain meaning of the word fix.

[00:15:49] Speaker 01:
But in addition to the portions that you're on are cited in the specification, I would point to two things.

[00:15:55] Speaker 01:
I point to figure one itself which demonstrates the geophones as 18A, 18B, and 18C.

[00:16:02] Speaker 01:
There are no gimbals present in that diagram.

[00:16:05] Speaker 01:
The geophones are in three different orthogonal orientations in that diagram as is explained further below in the last paragraph of

[00:16:16] Speaker 01:
which we'll get to in a second.

[00:16:18] Speaker 01:
And there's another portion in column six that describes how the geophones can be mounted adjacent to the casing wall.

[00:16:28] Speaker 01:
You know, we believe that a fair interpretation of mounting a geophone adjacent to the casing wall, that type of mounting is excluding a gimbal as well, that that would be a fixed type of mounting.

[00:16:39] Speaker 01:
In addition to that, going forward on column six of the last paragraph beginning at line 56, there's a specific embodiment disclosed.

[00:16:48] Speaker 01:
And this is really inconsistent with what CBED has been advancing, suggesting there's no fixed geofoam disclosure whatsoever in this specification.

[00:16:56] Speaker 01:
In line 56 of column 6, it goes on to describe how the geophones can be set in three or four geophones can be set in either a tetrahedral configuration or with just three of them in an XYZ configuration such that each geophone is picking up a signal on its plane.

[00:17:16] Speaker 03:
I mean, that is describing... Mr. Rodriguez, this is Judge Lin.

[00:17:23] Speaker 03:
But in the preceding paragraph,

[00:17:26] Speaker 03:
Well, first of all, in the paragraph you referenced beginning at column 6, line 56, it's talking about another embodiment.

[00:17:36] Speaker 03:
But in the preceding paragraph, it talks about geophone 18, not directed to specifically 18 A, B, C, and D as shown in figure 1.

[00:17:50] Speaker 03:
So to me, it seems that the specification

[00:17:56] Speaker 03:
more broadly describes the geophones that are appropriate.

[00:18:01] Speaker 03:
And whether it's the geophones in the alternative embodiment 18A, B, C, and D, which perhaps are fixed in place and may or may not be gimbaled, there is no such implication as I read it with respect to the preceding paragraph and the discussion about geophone 18.

[00:18:28] Speaker 03:
Comment?

[00:18:30] Speaker 01:
Yes, your honor.

[00:18:31] Speaker 01:
So I would note that my reference to the last paragraph is to push back against this idea presented by Steve that there's no disclosure in the specification for a fixed fee account.

[00:18:42] Speaker 01:
With regards to your honor's comments about the preceding paragraph.

[00:18:47] Speaker 03:
I'm sorry to interrupt, but let me ask you just to follow up to that.

[00:18:51] Speaker 03:
Is there anything in the specification to suggest that the quote unquote

[00:18:59] Speaker 03:
fixed geophones, 18A, B, C, and D, are not each gimbaled?

[00:19:08] Speaker 01:
I would admit that the paragraph itself, that that wouldn't necessarily make sense to have them gimbaled if the goal is to have them on different planes.

[00:19:17] Speaker 01:
I'm not sure how one would construct gimbals to accomplish that.

[00:19:23] Speaker 00:
Is there testimony to that extent?

[00:19:25] Speaker 00:
Because, you know, you may or may not be an expert, but there's a record that we have to attend to in this case.

[00:19:33] Speaker 00:
Is there testimony that a skilled artisan would never organize 18A, B, C, and D in different planes and use Gimbals?

[00:19:43] Speaker 01:
Your Honor, I'm not aware of any specifically and in part that's because this written description issue was not before the Board.

[00:19:51] Speaker 01:
And so I want to refocus, if I may, back on the prior paragraph and address Judge Lynn's comments.

[00:20:01] Speaker 01:
So with respect to that paragraph, by using internally fixed in the claim language as a person of ordinary skill in the art would understand that term,

[00:20:10] Speaker 01:
we do believe the claims were being limited to exclude any gimbals that move.

[00:20:16] Speaker 01:
And we believe that's consistent with the specification.

[00:20:18] Speaker 01:
And we argued below that the specification supported that.

[00:20:21] Speaker 01:
Now at the end of the day, the board found that the specification and the intrinsic record to be ambiguous.

[00:20:28] Speaker 01:
And we don't believe the board, while we maintain our original arguments, we don't believe the board erred in finding that ambiguous.

[00:20:36] Speaker 01:
And we are therefore focused on this

[00:20:39] Speaker 04:
Mr. Lane, I mean you're not Mr. Lane, I'm sorry.

[00:20:43] Speaker 04:
Mr. Rodriguez.

[00:20:44] Speaker 04:
Okay.

[00:20:46] Speaker 04:
Can you just go straight to appendix page 710 and this is the statement in the reissue application prosecution history where the applicant explains where to, how to understand internally fixed and where is the support in the application?

[00:21:09] Speaker 04:
And it describes how the geophone is disposed and electrically connected within the internal compartment.

[00:21:19] Speaker 04:
And so when I look at that statement, A710, in combination with the other statement I quoted to you from column six, which describes a geophone as internally mounted within the pod 10 and thus requires no external wiring or connection.

[00:21:38] Speaker 04:
Why don't those two statements together paint the picture that to whatever extent there might be some extrinsic technical meaning of the term fixed for purposes of this patent and this intrinsic record, that term should be understood in a more generic sense to be referring to something that's mounted or disposed and electrically connected within the housing.

[00:22:09] Speaker 01:
Yes.

[00:22:10] Speaker 01:
Let me address that.

[00:22:12] Speaker 01:
I guess I'd first like to start by addressing the waiver argument.

[00:22:15] Speaker 04:
Right.

[00:22:16] Speaker 04:
Let's just assume the court knows our waiver law very well on this issue and let's just get right to the heart of the matter now.

[00:22:25] Speaker 01:
Okay.

[00:22:26] Speaker 01:
So with regards to the statement here, I would... One second.

[00:22:39] Speaker 01:
So a couple things, Your Honor.

[00:22:41] Speaker 01:
I would note that the remarks here that are being cited on 710, they have been couched in terms of examples and that it's only providing examples.

[00:22:50] Speaker 01:
I would also note that the first line of this section, Claim 24, begins with Claim 22 at Appendix 710.

[00:22:57] Speaker 01:
The Claim 22 is a new independent claim.

[00:22:59] Speaker 01:
Support for the subject matter of the new Claim 22 is found, for example, in the abstract Figures 1 and 2, Columns 3, Line 66 to Column 4, Line 12, Column 6, and Lines 14 to 58.

[00:23:12] Speaker 01:
Now, as I understand this,

[00:23:13] Speaker 01:
this is getting to, you know, the written description type of arguments that were not of record below.

[00:23:19] Speaker 01:
And this is citing the majority of column six including up to line 58 which goes into the paragraph which we characterize as the fixed geophones.

[00:23:31] Speaker 01:
Now we didn't have testimony on that because the written description issue wasn't before the court below.

[00:23:36] Speaker 01:
But were we to have litigated this we would have submitted further

[00:23:42] Speaker 01:
testimony and evidence to support the written description portion of this.

[00:23:50] Speaker 00:
I'm not sure why you're so focused on written description.

[00:23:53] Speaker 00:
Please focus on Judge Chen's question.

[00:23:55] Speaker 00:
Why doesn't this language on 710, which was the applicant's own language describing Claim 22, focusing in particular on the internally mounted

[00:24:08] Speaker 00:
language in the spec, not, by the way, encompassing the other embodiment that you tried to point us to with the 18A, B, C, and D. Notice that the portion of column 6A.2 does not include that as support for this particular claim.

[00:24:25] Speaker 00:
Why aren't these statements, statements that make clear there are two plausible definitions of the word

[00:24:35] Speaker 00:
one in the technology which might be non-gimbaled, and one which simply means internally mounted, and that they are using the word to mean what they say in the spec as internally mounted.

[00:24:47] Speaker 00:
How do you dispute that that is what JA710 pretty strongly supports?

[00:24:56] Speaker 01:
Well, I guess I would thank you, Your Honor, for helping me focus my answer.

[00:25:00] Speaker 01:
I would stress that in Appendix 710,

[00:25:05] Speaker 01:
equate internally fixed with the mounting language.

[00:25:10] Speaker 01:
The sentence reads, the application also conveys one with, convey with more than reasonable clarity, one is skill in the art, that in at least one embodiment, the seismic data collecting unit includes at least one geophonic block, a power source, et cetera, and then cites the support for that.

[00:25:28] Speaker 01:
The sentence doesn't actually recite the internally fixed

[00:25:31] Speaker 01:
language and tie it to that portion of the specification.

[00:25:36] Speaker 01:
I think that's where I would really push back against this argument.

[00:25:39] Speaker 01:
There's no tying of internally fixed.

[00:25:41] Speaker 01:
It does cite those portions of the specification, but it doesn't tie that language to internally mounted in any way.

[00:25:48] Speaker 03:
And again, I would read it as... Go ahead, Judge Lane.

[00:25:52] Speaker 03:
Sorry.

[00:25:53] Speaker 03:
This is Judge Lane.

[00:25:55] Speaker 03:
Let me ask you the same question that I asked Judge Lane in Thornhill.

[00:25:59] Speaker 03:
Is the Geophone 66 gimbal mounted?

[00:26:06] Speaker 01:
We would argue yes.

[00:26:08] Speaker 01:
The answer is yes, and we believe that it is.

[00:26:10] Speaker 01:
But we would also stress that one can conclude that the amendment was made to exclude Geophones that don't move more generally without necessarily having to exclude gimbals necessarily.

[00:26:22] Speaker 03:
Well, in operation, the Geophone

[00:26:26] Speaker 03:
is forced into the ground and is stationary in the ground.

[00:26:32] Speaker 03:
And I assume that the geophone itself is not self-orienting.

[00:26:40] Speaker 03:
Once it's in the ground, it's in the ground at whatever angle it happens to find itself, correct?

[00:26:48] Speaker 01:
That is correct.

[00:26:49] Speaker 01:
However, it is before being driven into the ground, it is on the self-orienting mechanism of Thornhill, which as we described in the red brief on pages 10 to 14, that self-orienting mechanism is the fundamental invention of Thornhill that we believe the applicants were distinguishing from by adding internally fixed into the claim language.

[00:27:11] Speaker 01:
I would also point to Dr. Bodwin's testimony about gimbling and how some of these other devices like Willoughby that also had self-orienting mechanisms, but those would count as gimbals as well in support of the idea that if necessary, Thornhill does teach a gimbal.

[00:27:36] Speaker 01:
Okay.

[00:27:37] Speaker 01:
If there are no other questions, I know, Justin, you had asked me to move on from the waiver argument.

[00:27:43] Speaker 01:
There's one point on the waiver argument I would like to make without... Nope.

[00:27:47] Speaker 01:
But my time is over, so never mind.

[00:27:50] Speaker 00:
Okay.

[00:27:50] Speaker 00:
Thank you, Mr. Rodriguez.

[00:27:51] Speaker 00:
Mr. Lane, you have some rebuttal time.

[00:27:55] Speaker 02:
Yes, Your Honor.

[00:27:55] Speaker 02:
There's two main points I'd like to address.

[00:27:59] Speaker 02:
Mr. Rodriguez disputed my argument that non-Gimbal geophones are disclosed in the specification.

[00:28:07] Speaker 02:
by pointing first to Figure 1 in the patent.

[00:28:12] Speaker 02:
However, MagSys's expert, Dr. Datomo, testified in his deposition that Figure 1 is not a mechanical drawing and it only shows schematically where various components are laid out in the seismometer case.

[00:28:28] Speaker 02:
Second, MagSys's counsel,

[00:28:32] Speaker 02:
pointed to column six, this is appendix 684, column six in the patent starting on line 56, about these geophones in the X, Y, or Z plane.

[00:28:43] Speaker 02:
That argument has never been addressed or raised in this appeal before.

[00:28:47] Speaker 02:
It was just raised for the first time in opposing counsel's oral argument.

[00:28:52] Speaker 02:
But regardless, that paragraph never mentions gimbaled or non-gimbaled geophones, just like the rest of the patent.

[00:29:00] Speaker 02:
The second point I want to address is that we've talked about this plain meaning of fixed, but

[00:29:10] Speaker 02:
Below, MagSys submitted numerous patents and other publications, as the board found at appendix 15 to 16.

[00:29:19] Speaker 02:
But it's undisputed that all of those patents and publications were from years after the 268 patents 2003 priority date.

[00:29:30] Speaker 02:
And by the way, the board erroneously found that CBED had submitted some of those patents and publications, but they were all submitted by MagSys.

[00:29:38] Speaker 02:
So in our view,

[00:29:41] Speaker 02:
This shows that fix at the time of the invention, at the priority date, was not understood.

[00:29:48] Speaker 02:
It may have had some meaning later in time, but as this court found in Massachusetts Institute of Technology versus Abacus at 462 F3D 1344 page 1353,

[00:30:02] Speaker 02:
Acclaimed terms proper construction is the meaning that the words would have had to a person of ordinary skill and art in question at the time of the invention, i.e.

[00:30:13] Speaker 02:
as of the effective filing date of the patent application.

[00:30:17] Speaker 02:
So again, these patents and publications, numerous ones raised by MagSci were all from years after

[00:30:24] Speaker 02:
the priority date, which in our view doesn't support Magstis's argument, it supports Sebed's argument, the fix was not understood at the priority date to mean non-Gimbal geophones.

[00:30:36] Speaker 02:
And I believe that's all my time.

[00:30:38] Speaker 00:
I thank both counsel for their arguments.

[00:30:40] Speaker 00:
This case is taken under submission.