[00:00:00] Speaker 03:
The next case for argument is 20-2189 VTT Tech versus SI Time Corporation.

[00:00:09] Speaker 03:
Mr. Woodford, please proceed.

[00:00:11] Speaker 01:
Thank you and good morning.

[00:00:14] Speaker 01:
May it please the court?

[00:00:16] Speaker 01:
The terms drive and sense at the center of this appeal were recognized and used as structural terms

[00:00:23] Speaker 01:
by those of skill and the art in the resonator field for 20 years before VQT ultimately used those terms in the claim.

[00:00:30] Speaker 01:
This is evident from the very first sentence of a 1990 article actually written by Zeitheim's expert, which says, this paper investigates the electrostatic drive and sense of polysilicon resonators and then continues.

[00:00:46] Speaker 01:
Many patents, dictionary definitions continue to use those terms over the next

[00:00:52] Speaker 04:
20 years, and ultimately, Your Honor, the district court's indefiniteness finding here was incorrect because the court applied the wrong... But, Counsel, isn't it true, Counsel, that those terms, though, even if understood generally, still encompassed not even a class, but a potential variety of drivers or censors?

[00:01:20] Speaker 01:
That's correct.

[00:01:21] Speaker 01:
The terms drive and sense over time developed into what I would call a fairly multitude of different structures that fall under those terms or are understood by those terms.

[00:01:33] Speaker 04:
Right.

[00:01:33] Speaker 04:
And isn't that the problem here?

[00:01:35] Speaker 04:
Is that if there's a multitude of different structures that will first, as to phase one of the analysis, if there's a multitude of different structures, then the mere reference to those generic terms

[00:01:49] Speaker 04:
does not connote the structure for purposes of whether it's a means plus function term, right?

[00:01:58] Speaker 01:
Well, no, I don't think that's right.

[00:02:01] Speaker 01:
And that's really kind of the fundamental error in this case.

[00:02:05] Speaker 01:
Ultimately, you look at the law on what constitutes a sufficiently definite meaning as a name for structure.

[00:02:14] Speaker 01:
The court, there are many cases that have addressed this issue.

[00:02:19] Speaker 01:
And one of the issues that has come up many times is does that mean that the term has to connote a specific structure or a precise physical structure?

[00:02:29] Speaker 01:
And the answer is no.

[00:02:30] Speaker 01:
Several cases, MIT, Lighting World, Greenberg, Watts have said that a term can be sufficiently definite even though it covers a broad class of structures.

[00:02:42] Speaker 01:
And even though it identifies structures by their function, which is common, of course, in the electronic arts.

[00:02:49] Speaker 01:
And that's really at the crux of the error by the district court.

[00:02:55] Speaker 01:
The district court, in its opinion, applied the wrong standard.

[00:03:00] Speaker 01:
And there's four examples of this where really it was contrary to this specific structure issue that's been raised.

[00:03:11] Speaker 01:
And the first of which is on page 19.

[00:03:14] Speaker 01:
After, of course, reciting this sufficiently definite meaning as an infrastructure standard, that was recited correctly.

[00:03:23] Speaker 01:
But that begs the question, what is sufficiently definite?

[00:03:26] Speaker 01:
What does that mean?

[00:03:27] Speaker 01:
And then when the court continued, you could see how the court began to deviate significantly and erroneously from the standard.

[00:03:40] Speaker 01:
reciting the standard in Williamson, the sufficiently definite meaning, the court referred to a requirement of connoting specific structure and that was on page 19 of the order.

[00:03:50] Speaker 03:
Council, there's more.

[00:03:51] Speaker 03:
So the first step in this analysis is we have to recognize that you chose to use the word means, so the presumption that this is in fact implicating 112.6 applies.

[00:04:03] Speaker 03:
The next step is we look to the intrinsic record to see if there's anything in the spec that defines a class of structures.

[00:04:14] Speaker 03:
like you're describing.

[00:04:16] Speaker 03:
Is there anything in the spec here that you believe describes a class of structures for the drive or sense means?

[00:04:24] Speaker 03:
Because I certainly saw where the driver could be a transducer, and that's a particular structure, not a class of structures.

[00:04:32] Speaker 03:
But I didn't see anything in the spec that defined a class of structures like you're suggesting.

[00:04:39] Speaker 03:
I'm not saying it has to be in the spec.

[00:04:40] Speaker 03:
I'm just starting, you know, kind of work my way through this.

[00:04:43] Speaker 03:
Is there anything in the spec that I'm missing that you believe the court aired not identifying as defining a class of structures?

[00:04:52] Speaker 01:
No, I don't believe that the spec defines a class.

[00:04:55] Speaker 01:
The spec uses the terms as though they're known

[00:04:59] Speaker 01:
you know, by those of ordinary skill in the arts.

[00:05:02] Speaker 01:
So it's one of those situations where there's really no need to define any and every example of drive and sense, only a few are provided.

[00:05:11] Speaker 03:
So, counsel, so if it's not, this is a, this part, whether it's a 112.6 term or not is a question of law.

[00:05:18] Speaker 03:
But if we can't determine that from the spec, we now have to look to the extrinsic evidence and it now has migrated from a question of law to one where we have to give deference to fact findings.

[00:05:29] Speaker 03:
For example, what dictionaries say or what experts testify to.

[00:05:34] Speaker 03:
Do you, you agree with that, right?

[00:05:36] Speaker 03:
I'm not misstating the law at this point.

[00:05:39] Speaker 01:
Well, no, I wouldn't agree with that in the context of this case.

[00:05:44] Speaker 01:
And I'll explain why.

[00:05:46] Speaker 01:
So with respect to factual, giving deference to factual findings, if you look at really TAVA and what the Supreme Court said, the question that the court answered concerns, and this is right from the case, concerns the review of the district court's resolution of a subsidiary factual dispute.

[00:06:08] Speaker 01:
In this case, there weren't factual disputes relating to those items.

[00:06:13] Speaker 01:
VTT submitted, and because it had to, because these are terms that the district court and generally lay people don't understand, drive and censor, not terms that they use on a regular basis.

[00:06:25] Speaker 01:
So we're forced to put in extrinsic evidence so people understand and can resolve the claim construction issue.

[00:06:34] Speaker 01:
But there weren't factual disputes because Sidetime actually didn't put in any evidence of its own.

[00:06:40] Speaker 01:
Really what happened during the claim construction process was the court, the parties were arguing the law around these statements, these really undisputed facts in the record.

[00:06:54] Speaker 01:
So there were no factual findings.

[00:06:56] Speaker 03:
Council, I'm not sure that's right.

[00:06:59] Speaker 03:
To the extent that the district court is, for example, looking into the dictionary and deciding whether the word drive or sense is being used as a noun or as an adjective, for example.

[00:07:11] Speaker 03:
That's a fact-finding, isn't it?

[00:07:17] Speaker 01:
Well, I suppose it could be.

[00:07:19] Speaker 01:
But, I mean, the dictionary says itself whether or not these words are nouns and in the dictionary they were.

[00:07:26] Speaker 01:
But even if you consider that to be a factual finding, just reading what is stated in a document, that still wouldn't apply here because the law that was used to analyze, the standard that was used to analyze and evaluate this evidence was incorrect.

[00:07:48] Speaker 01:
No matter what, if your factual findings, let's say, for example, hypothetically that those exist, that reading these documents does constitute a factual finding, then if the wrong law is applied in evaluating that, those factual findings are clearly erroneous on their face.

[00:08:09] Speaker 01:
And so there is no deference that needs to be provided to whatever conclusions the district court made when applying the wrong law.

[00:08:19] Speaker 01:
And that's the situation we find ourselves in.

[00:08:21] Speaker 03:
But I guess I'm sort of back at, let's focus on pages 20 and 21 of the district court opinion, where the district court is analyzing the dictionary that you submitted and explaining that a driver is a piece of structure, but a drive means is more functional.

[00:08:42] Speaker 03:
And when looking at the word driver in a dictionary, that is structure.

[00:08:49] Speaker 03:
But the word drive has an entirely different definition.

[00:08:54] Speaker 03:
And he did the same thing or he or she did the same thing with regard to sense or censor explaining these differences.

[00:09:04] Speaker 03:
And you don't think any of that is fact finding to which deference needs to be given?

[00:09:13] Speaker 01:
No, Your Honor.

[00:09:14] Speaker 01:
And for the two reasons, one, there is no factual dispute that was resolved.

[00:09:19] Speaker 01:
And really, in the drive and driver example is a great one to show the legal error here.

[00:09:29] Speaker 01:
Drive was defined as the means or apparatus for transmitting motion or power to a machine from one machine part to another.

[00:09:37] Speaker 01:
So drive was means or apparatus.

[00:09:40] Speaker 01:
Driver was defined as a machine part that transmits motion or power to another part.

[00:09:46] Speaker 01:
So driver was an example of a drive.

[00:09:49] Speaker 01:
The court in really discounted this definition of drive because it referred to a means or apparatus, meaning it didn't define any specific structure.

[00:10:03] Speaker 01:
But the error is that it doesn't need to.

[00:10:06] Speaker 01:
It doesn't need to define a specific structure.

[00:10:08] Speaker 01:
The reference to means or apparatus refers to a broad class of structure.

[00:10:14] Speaker 01:
The very fact that these words are in the dictionary in the specific context of this patent demonstrates that these terms have achieved status as nouns.

[00:10:26] Speaker 03:
Council, this is Judge Moore again.

[00:10:28] Speaker 03:
So, you know, you're focusing on drive, which I understand why.

[00:10:31] Speaker 03:
That is the best word for you.

[00:10:35] Speaker 03:
What about sense?

[00:10:36] Speaker 03:
What is the broad class of structures that the word sense refers to?

[00:10:42] Speaker 01:
Sure.

[00:10:42] Speaker 01:
Sense refers, and this was in our proposed construction, sense refers to the broad class of structures, which includes an ateran deducer.

[00:10:52] Speaker 01:
And sense, again, was used

[00:10:54] Speaker 03:
I'm sorry, I missed it.

[00:10:57] Speaker 03:
What was the definition of the broad class of structures?

[00:10:59] Speaker 03:
How do I define the broad class of structures?

[00:11:02] Speaker 03:
I understand it includes a transducer in your mind, but how would one of skill and the art define the boundaries of the class of structures that constitute the word sense?

[00:11:16] Speaker 01:
that we did not define the boundaries in our proposed construction.

[00:11:21] Speaker 01:
And I don't believe that's necessary, that every construction of a broad class of structures has to define the boundary.

[00:11:29] Speaker 01:
In fact, in Greenberg and cases of that nature, there was this exact argument made.

[00:11:36] Speaker 01:
In fact, I think it was in lighting world, actually, with respect to the connector assembly.

[00:11:41] Speaker 01:
And the district court said that this connector assembly

[00:11:45] Speaker 01:
construction would cover every conceivable structure.

[00:11:48] Speaker 01:
And the court said, didn't require that the claim be construed to define the boundaries of what structures fell in or what structures fell out.

[00:11:59] Speaker 01:
It would actually apply to very broad structure.

[00:12:01] Speaker 01:
I think it used a unit, essentially a unit that connects.

[00:12:04] Speaker 01:
I don't have the exact wording.

[00:12:05] Speaker 04:
Well, first of all, counsel, in lighting world, the presumption didn't apply.

[00:12:10] Speaker 04:
In fact, the presumption went the other way.

[00:12:12] Speaker 04:
But what about Dibold and Nixdorf?

[00:12:15] Speaker 04:
I mean, the district court relied on that case, and it very specifically says that you can't define a class of structures by the functions they perform.

[00:12:26] Speaker 04:
And the district court found that essentially that's what Dr. Meinhof's testimony was doing, is saying that anything that serves these functions, and the spectrum doesn't just talk about transducers, but it refers sort of generally to

[00:12:42] Speaker 04:
physioelectric mechanisms, but isn't that the problem here, is that you're wanting us to say that the structures are broad, it's a class of structures, and it's anything that performs these functions.

[00:12:56] Speaker 04:
And as much as maybe some experts would know that, I don't know that that satisfies the law with respect to how to engage in functional cleaning.

[00:13:09] Speaker 01:
Well, I'll start with Diebold.

[00:13:11] Speaker 01:
In Diebold, the issue was that the expert offered the construction, but didn't offer any supporting evidence.

[00:13:19] Speaker 01:
And that's different here, because Dr. Meinhart referred to intrinsic evidence that was there, dictionary definitions, the prior patents, and that showed that these terms are actually, they're nouns, they're understood, they're real, they're used in the art,

[00:13:37] Speaker 01:
And those in the art understand what structures fall within this class of structures.

[00:13:43] Speaker 01:
One of the reasons that the boundaries weren't set in this case is because there's no dispute over the structures that issue whether or not they were considered drive and sent.

[00:13:55] Speaker 01:
That's why we didn't, in the claim construction process, didn't have to go through and try to define the boundaries.

[00:14:00] Speaker 01:
Usually you're only doing that when there's some dispute where they would come forward and say, well, wait a second.

[00:14:06] Speaker 01:
this is not one of those structures that falls within this class.

[00:14:10] Speaker 01:
And that's why, but if you do look at our proposed constructions, VTT's constructions, they do refer to the class of devices that's known in the field.

[00:14:21] Speaker 01:
So that's how we defined it.

[00:14:23] Speaker 01:
We identified that class and to the extent there was a dispute that never came up and we never had a chance to really

[00:14:30] Speaker 01:
further to find what that, you know, what would fall in or what would fall outside of that.

[00:14:35] Speaker 03:
Judge O'Malley, do you have any follow-up questions or can we move on to the appellee?

[00:14:39] Speaker 03:
No, we can move on.

[00:14:40] Speaker 03:
Thank you, Chief.

[00:14:41] Speaker 03:
Sure.

[00:14:42] Speaker 03:
Mr. Jacobin?

[00:14:46] Speaker 00:
Thank you, Your Honors.

[00:14:47] Speaker 00:
David Jacobin for sidetime.

[00:14:49] Speaker 00:
May it please the Court?

[00:14:51] Speaker 00:
The questions you've been asking just now, I think, highlight the issues here.

[00:14:56] Speaker 00:
The claim term at issue is driver-sense means.

[00:15:01] Speaker 00:
And because the word means is used, the presumption of functionality applies pursuant to 35 USC 112 paragraph 6.

[00:15:10] Speaker 00:
DTT tries to avoid this, but that's there.

[00:15:14] Speaker 00:
They chose that word.

[00:15:16] Speaker 03:
Council, for certification purposes, this is Judge Moore.

[00:15:19] Speaker 03:
If this just said drive means,

[00:15:23] Speaker 03:
you wouldn't have an indefiniteness argument, right?

[00:15:26] Speaker 03:
Because if 112.6 applied, the spec clearly links a transducer as a structure to the drive means in the spec.

[00:15:36] Speaker 03:
Is that right?

[00:15:38] Speaker 00:
Yes, Your Honor, that is correct.

[00:15:40] Speaker 03:
So your case hinges on us concluding this is 112.6 language and then there is no corresponding structure for the sense means, right?

[00:15:50] Speaker 00:
Yes, that's correct, Your Honor.

[00:15:52] Speaker 03:
Okay, please proceed.

[00:15:55] Speaker 00:
And so, as a result, you know, the district court was aware of that.

[00:16:00] Speaker 00:
It got the presumption right.

[00:16:02] Speaker 00:
And it did not impose a heightened standard.

[00:16:05] Speaker 00:
The district court, as counsel just stated, in different places, in its opinion, made it clear that it was using the- What would you say if instead of the claim saying drive or sense means, it said drive or sense circuitry?

[00:16:20] Speaker 03:
What about that?

[00:16:20] Speaker 00:
That would be different.

[00:16:22] Speaker 00:
Drive or sense circuitry would be a noun.

[00:16:25] Speaker 00:
Because circuitry was clearly structure and that was what was used in the common parlance of one of ordinary skill.

[00:16:34] Speaker 00:
I think that the issue.

[00:16:36] Speaker 03:
Well, I think your English teacher from elementary school may be a little sad right now.

[00:16:40] Speaker 03:
Do you think the word means is not announced.

[00:16:44] Speaker 00:
No, the word means is a noun, but it's the nonce term.

[00:16:51] Speaker 03:
Drive means is a noun, and drive circuitry is a noun, right?

[00:16:54] Speaker 03:
So your initial distinguishing characteristic that one was a noun probably doesn't actually work, right?

[00:17:03] Speaker 00:
Well, the distinguishing characteristic of circuitry is that it is commonly understood by those of skill in the art

[00:17:13] Speaker 00:
as having a definite structure in contrast to the word means.

[00:17:21] Speaker 00:
And so as a result, that's what this court, the lower court was grappling with, is that the word drive and the words sense were functional terms.

[00:17:32] Speaker 00:
It was the VTT also chose to use the word means.

[00:17:36] Speaker 00:
They chose not to illustrate this structure in the figures.

[00:17:40] Speaker 00:
They chose not to incorporate by reference

[00:17:43] Speaker 00:
some of the structures that did exist in another application, but they would now like this court to determine that the lower court used a heightened standard.

[00:17:52] Speaker 00:
The lower court didn't do that.

[00:17:55] Speaker 00:
The instances that they pointed to, the use of the word concrete, the court found the chamber's definition does not suggest concrete structure, quite the opposite.

[00:18:06] Speaker 00:
It indicates that the drive is used to refer to anything.

[00:18:10] Speaker 00:
That was a factual finding.

[00:18:12] Speaker 00:
It wasn't the heightened standard.

[00:18:14] Speaker 00:
It was the court taking a close look at that dictionary definition.

[00:18:19] Speaker 04:
What if, counsel, what if, I mean, because part of my problem is it seems like this isn't even really at the heart of what was invented here or what was the inventive concept.

[00:18:30] Speaker 04:
So what if they just said you could use any method to do this?

[00:18:39] Speaker 04:
and they're all sort of generally well-known.

[00:18:43] Speaker 00:
Well, Your Honor, it's established... No, it wouldn't, because it's established law, Your Honor, that every element in a claim is a significant element and has to be accounted for.

[00:18:53] Speaker 00:
You can't simply say, well, this isn't the most important one here, and therefore we don't have to look at it.

[00:18:59] Speaker 00:
DTT chose to do that.

[00:19:01] Speaker 00:
It didn't need to include this limitation in the claim, but it did.

[00:19:05] Speaker 00:
And it's stuck with what it did.

[00:19:07] Speaker 00:
It shows it's European attorney who used the words means, who didn't put figures in the case, and who didn't prosecute it in the way that maybe they would have liked to now.

[00:19:17] Speaker 00:
But they're stuck with that.

[00:19:22] Speaker 00:
The court, as to the lower court, the other word, specific structure, well, the use of the word specific was something that, in fact, VTT's expert

[00:19:34] Speaker 00:
relied upon paragraph 60 of his declaration, where he talked about a specific class of devices.

[00:19:41] Speaker 00:
So it was VTT who introduced that word as well.

[00:19:44] Speaker 00:
Definitely not a heightened standard.

[00:19:47] Speaker 00:
And as to exact structure, this was getting back to the question that Judge Moore just asked me, which was in the context of some dictionary definitions that used the word circuitry or electrode,

[00:20:02] Speaker 00:
the words drive and sense were adjectives modifying those structural terms, but on their own, they were just as plausibly referring to function or operation of structure as they were operation of structures.

[00:20:16] Speaker 03:
So I guess one of the problems for me is I think you and I probably both agree that if it said sense circuitry, that that wouldn't implicate 112.6.

[00:20:28] Speaker 03:
And your responses, which I understand, but it doesn't say sense circuitry.

[00:20:32] Speaker 03:
It says sense means, number one, there's a presumption.

[00:20:34] Speaker 03:
And number two, it's ambiguous as to what that means might be.

[00:20:39] Speaker 03:
But what could the means be other than circuitry in this instance?

[00:20:43] Speaker 03:
What else could it be?

[00:20:45] Speaker 00:
Well, other than circuitry, these are MEMS devices, microelectromechanical systems.

[00:20:52] Speaker 00:
And so it could be any mechanical aspect of a

[00:20:57] Speaker 00:
micro-mechanical system, such as a motor, it could be many things.

[00:21:04] Speaker 00:
And so as a result, we don't know.

[00:21:06] Speaker 00:
And that's the problem that we have.

[00:21:09] Speaker 00:
And the lower court grappled with it.

[00:21:11] Speaker 03:
I'm a little confused.

[00:21:12] Speaker 03:
I'm not a mechanical engineer.

[00:21:14] Speaker 03:
But how's a motor going to be the sense means?

[00:21:19] Speaker 00:
I'm sorry.

[00:21:19] Speaker 00:
If you were referring to sense means,

[00:21:26] Speaker 03:
How could it be anything else?

[00:21:31] Speaker 00:
It depends upon what force is being sensed, whether it would be mechanic, whether it would be optical, whether it's mechanical.

[00:21:42] Speaker 00:
The claim is directed to the actuation or the deflection.

[00:21:47] Speaker 00:
There could be various different ways to sense that deflection that

[00:21:54] Speaker 00:
are not necessarily a circuit.

[00:21:56] Speaker 00:
An optical would be light.

[00:21:58] Speaker 00:
It would be a reflection of light.

[00:22:11] Speaker 00:
But it gets back to then that the class of devices, as they have set out, doesn't have a bounds.

[00:22:21] Speaker 00:
The drive class

[00:22:24] Speaker 00:
as the VTT expert defines it, actuates the semiconductor element and causes it to oscillate.

[00:22:32] Speaker 00:
That has no bounds, that has no structure to it.

[00:22:35] Speaker 00:
Yes, he used such as a transducer.

[00:22:40] Speaker 03:
I'm still struggling, again, you know, not a mechanical engineer over here, not trying to pretend to be one, but the claim element here is sense means functionally coupled

[00:22:51] Speaker 03:
to said semiconductor element.

[00:22:55] Speaker 03:
So I'm sort of wondering if your example that, well, it could be optical is really realistic in light of this claim language.

[00:23:10] Speaker 03:
I don't know how that optical sensor could be.

[00:23:12] Speaker 00:
I use the optical because optical was one of the forces that DTT included within its definition of the forces that its class of devices could sense.

[00:23:25] Speaker 03:
I guess, but we're trying to understand what driver sense means functionally coupled to said semiconductor element would mean to a PACETA, right?

[00:23:34] Speaker 03:
That's the goal.

[00:23:36] Speaker 03:
Would that have or draw a PACETA to a particular class of structures?

[00:23:43] Speaker 00:
We don't believe that it would.

[00:23:45] Speaker 00:
And if you look at paragraph 61, Dr. Meinhart's declaration in appendix 542,

[00:23:52] Speaker 00:
He says the sense means can measure electrical, mechanical, optical, piezo or magnetic signals over time.

[00:24:01] Speaker 03:
What, can you, I'm sorry, can you tell me again what page that is?

[00:24:04] Speaker 03:
You went so fast, I'm trying to keep up.

[00:24:05] Speaker 00:
I am sorry.

[00:24:06] Speaker 00:
Appendix 542.

[00:24:08] Speaker 03:
Oh yeah, yeah, I have that flagged actually.

[00:24:11] Speaker 03:
Okay, so go ahead, Appendix 542.

[00:24:13] Speaker 00:
At paragraph 61.

[00:24:14] Speaker 03:
Yep, I have that underlined in fact.

[00:24:16] Speaker 00:
Sense means can measure electrical, mechanical, optical, piezio, or magnetic signals over time is what their expert is used to then say

[00:24:30] Speaker 00:
This is what this class of devices can do.

[00:24:34] Speaker 00:
And it's very clear that there is no, that that word does not define sufficient structure, does not connote sufficient structure to one of ordinary skill in the art for all of those different forces.

[00:24:55] Speaker 00:
And that's where the court then, when it was talking about the class of devices,

[00:25:01] Speaker 00:
While it found that Dr. Meinhart referred to a transducer, it ended up finding that the class was not limited to that and the class was undefined.

[00:25:11] Speaker 04:
But we are supposed to read this in the context of the claims, right?

[00:25:16] Speaker 04:
So in the context of the claims, isn't there a limited universe of structures that would work?

[00:25:25] Speaker 00:
I'm sure that the answer to that is yes, Your Honor.

[00:25:31] Speaker 00:
But nonetheless, the language itself doesn't connote what that limited universe is.

[00:25:44] Speaker 00:
And that's the problem with the claim.

[00:25:51] Speaker 04:
And you're saying it wouldn't connote what that limited universe is to even one of skill in the art.

[00:25:56] Speaker 00:
Well, one of ordinary skill in the art reading, drive or sense, could put together that it could build something.

[00:26:02] Speaker 00:
We're not saying that that isn't the case.

[00:26:05] Speaker 00:
But it isn't what one of ordinary skill in the art would use to connote a specific structure.

[00:26:12] Speaker 00:
As one of your honors had said, well, drive was his best argument that then there was sense.

[00:26:19] Speaker 00:
And so sense is in contrast to claims

[00:26:26] Speaker 00:
cases that actually have means language that were found not to be, such as a system memory means in the TACSEC, the IDM case.

[00:26:36] Speaker 00:
It's interesting to note that various cases that council relied upon, which I believe were the Greenberg and the Watts case, those were all cases where the presumption didn't apply because it was either a, they were words without means in them.

[00:26:59] Speaker 03:
Anything further?

[00:27:01] Speaker 00:
The last aspect to cover is that as you go to the second step, it's then the intrinsic evidence that the court has to look at.

[00:27:12] Speaker 00:
And in fact, as VTT's expert, Dr. Meinhart, referred to only one small part of the VTT patent relating to sense means,

[00:27:24] Speaker 00:
And that is at, if you'll excuse me, I'll open it up to that page.

[00:27:33] Speaker 00:
Column 3, lines 12 to 15 at APPX 79, where it only states, in addition, there is provided driver sense means functionally coupled to semi-conductor element for actuating or sensing said resonance or deflection.

[00:27:53] Speaker 00:
Period.

[00:27:53] Speaker 00:
That's what it says.

[00:27:54] Speaker 00:
Nothing more.

[00:27:56] Speaker 00:
That's all I have.

[00:27:57] Speaker 00:
Thank you very much.

[00:27:59] Speaker 03:
Thank you, Council.

[00:28:00] Speaker 03:
Mr. Woodford, you have a little bit of a huddle time.

[00:28:03] Speaker 03:
Please proceed.

[00:28:05] Speaker 01:
Thank you, Your Honor.

[00:28:07] Speaker 01:
So I think the, you know, where we're at here is that these terms, drive and sense, are both nouns

[00:28:15] Speaker 01:
They were both used for 20 years before the patent.

[00:28:19] Speaker 01:
BTT used these terms in the claim.

[00:28:20] Speaker 01:
And yes, BTT used the term means in both the presumption, but the essential inquiry in the presumption is whether or not those terms drive and sense sufficient structure.

[00:28:33] Speaker 01:
And evidence was put forward of what one of Ordinary's skill in the art would understand those terms to mean.

[00:28:40] Speaker 01:
While it didn't define all of the boundaries of all the various structures that accumulated over 20 years that people called drive and sense, that's not necessary.

[00:28:52] Speaker 01:
It certainly is permissible to have a claim defined with those terms defining a broad class of structures.

[00:29:00] Speaker 01:
That broad class is known to one of ordinary skill in the art.

[00:29:05] Speaker 01:
The only problem the district court had, and this was the error,

[00:29:09] Speaker 01:
was that it didn't define a specific structure.

[00:29:12] Speaker 01:
The district court felt that that was necessary and it's not.

[00:29:16] Speaker 03:
We thank both counsel.

[00:29:17] Speaker 03:
This case is taken under submission.

[00:29:19] Speaker 01:
Thank you.