[00:00:00] Speaker 02: Our first case this morning is AMP Plus versus DMF. [00:00:05] Speaker 02: It includes a cross-appeal. [00:00:07] Speaker 02: Mr. Tasche, you may begin when you're ready. [00:00:10] Speaker 02: Have I said your name correctly? [00:00:11] Speaker 03: It's Tasche. [00:00:12] Speaker 03: Tasche. [00:00:12] Speaker 03: But I have been called worse. [00:00:16] Speaker 03: Good morning. [00:00:18] Speaker 03: May it please report, Rick Tasche on behalf of the appellant. [00:00:21] Speaker 03: AMP Plus ain't doing business as Elko lighting. [00:00:25] Speaker 03: I think it would be helpful to put the 266 patent at issue in this case and somewhat into context to help explain the discussion this morning. [00:00:37] Speaker 03: The 266 patent is directed to an LED light that is a recessed lighting fixture that fits inside a casting and is not required but may or is capable of fitting inside a junction box that's normally used in a building or a structure. [00:00:53] Speaker 03: LED lights by nature have a significantly lower requirement for heat dissipation and are much smaller in size than traditional fluorescent or incandescent lights, which allows designers to create lighting products that are substantially smaller in size. [00:01:09] Speaker 03: And because of the significant cost increase at the time with LED lights, they were first used in mobile environments, such as in aircraft and boats and other vehicles that required much larger, heavier batteries and additional fuel to power the inefficient incandescent and fluorescent lights. [00:01:30] Speaker 03: This increase in cost of LED lights because of the decrease in size was offset by the weight and fuel savings. [00:01:39] Speaker 03: And so it allowed the LED lights that were recessed lightings to first be used and achieve commercial success in mobile environments. [00:01:49] Speaker 03: And in the early 2000s, the price of LEDs started to come down. [00:01:53] Speaker 03: And so designers started to use them in fixed environments, such as buildings and structures. [00:02:00] Speaker 03: And so by the time the 266 patent was filed in 2013, the technical issues associated with installing LEDs were well known to proceed as in the lighting industry, and they were being applied to mounting these LED lights into fixed structures, fixed environments such as buildings and structures. [00:02:23] Speaker 03: And why is this important? [00:02:26] Speaker 03: Without oversimplifying the 266 patent, [00:02:29] Speaker 03: DMF characterizes the 266 patent and its technology as a lighting fixture that's recessed that fits and complies with building codes and safety requirements that are used in fixed environments. [00:02:44] Speaker 03: But if you carefully look at the prior art, all of this technology was known and used in the mobile environment decades before. [00:02:54] Speaker 03: And so in essence, what we're fighting about here is a change in size. [00:03:00] Speaker 03: All that was done was taking smaller mobile lights that were used in aircraft and in boats, which are much smaller environments. [00:03:10] Speaker 03: So the ceilings are much lower. [00:03:12] Speaker 03: The spaces in which they're lighting are much smaller. [00:03:15] Speaker 03: And moving it into homes and other buildings that are much larger in volume and size. [00:03:21] Speaker 03: And so the lights had to progressively get bigger. [00:03:23] Speaker 03: And then as DMF points out in its briefing and in its arguments before the board, [00:03:29] Speaker 03: These lights fit inside, at least as to buildings that require code compliance, fit inside a junction box. [00:03:36] Speaker 03: So all they've done is taken a smaller light and make it larger and make sure that the flange to mount it fits inside a junction box and remove the can. [00:03:47] Speaker 01: Can we talk about your driver construction? [00:03:50] Speaker 01: I'm sorry? [00:03:51] Speaker 01: Can we talk about the driver construction? [00:03:52] Speaker 03: Absolutely. [00:03:53] Speaker 01: And in particular, I want to look at the prosecution history [00:03:58] Speaker 01: page 4634 if you've got access to that. [00:04:03] Speaker 00: I do. [00:04:05] Speaker 01: And I'm focused on the last paragraph of that page in particular. [00:04:22] Speaker 01: Do you think this last paragraph, or can you tell me why this last paragraph would not be a disavowal of non-building main power input in terms of that particular construction of driver? [00:04:35] Speaker 03: I'm sorry. [00:04:36] Speaker 03: I'm sorry. [00:04:37] Speaker 03: Judge Cunningham, may I have the page number again, please? [00:04:40] Speaker 01: Yes, of course. [00:04:40] Speaker 01: So it's appendix page 4634, the last paragraph in particular. [00:04:47] Speaker 03: And I'm sorry, your question was? [00:04:50] Speaker 01: Yes, so I want to know, in your opinion, why is the statement, and I'm going to point you to the statement, the statement that is around his recognition of various challenges. [00:04:59] Speaker 01: Do you see that statement in the last paragraph, through the end of that sentence? [00:05:05] Speaker 01: Yes. [00:05:05] Speaker 01: And can you tell me why that statement would not be a disavowal of non-building main power input in terms of the driver construction? [00:05:15] Speaker 03: In the first instance, it's permissive. [00:05:18] Speaker 03: And in the second instance, it's got to be read in the context of the patent itself, the specification, as well as the file history. [00:05:25] Speaker 03: And DMF makes clear in its arguments to the Patent Office that while building code requirements are something that they have to comply with, [00:05:38] Speaker 03: It's not a disavowal. [00:05:39] Speaker 03: It's one embodiment of what's being taught. [00:05:43] Speaker 03: And the patent is replete with examples of how the castings, the junction boxes, and the use of the device can be much smaller. [00:05:52] Speaker 03: And for example, DMF's counsel admitted at the final hearing before the board that you can be found to infringe, regardless of whether or not you move it into a junction box. [00:06:06] Speaker 03: And so the driver is not limited to attaching a lighting system to a building's main. [00:06:15] Speaker 03: In fact, they said just the opposite to the board. [00:06:17] Speaker 03: They said that you can be found to infringe [00:06:21] Speaker 03: whether or not you attach it to a junction box. [00:06:23] Speaker 03: So it goes back to my comment of just a moment ago. [00:06:26] Speaker 03: This is really all about size. [00:06:28] Speaker 03: This is really not whether or not it attaches to a building's main. [00:06:33] Speaker 03: And at worst, that statement that you just cited to, Your Honor, is permissive. [00:06:39] Speaker 03: And it's counteracted by the specification itself [00:06:42] Speaker 03: and the fact that the board found there was no disavowal, coupled with the statement and admission made by DMS counsel at the hearing that you can be found to infringe. [00:06:56] Speaker 00: Can you say that the specification you're referring to, column 4, lines 21 through 4? [00:07:03] Speaker 03: Yes. [00:07:03] Speaker 03: In addition, lines 25 through 27 go further and say that the driver may be any type of power supply [00:07:11] Speaker 03: including power supplies that deliver an alternating current or a direct current voltage to the light source module 3. [00:07:25] Speaker 03: The case law is really clear on this. [00:07:30] Speaker 03: The Teleflex versus Ficosa case from this court in 2002 states that [00:07:39] Speaker 03: Unless the patentee demonstrated its intent to deviate from the ordinary and customary meaning of the claim term by redefining the term or by characterizing the invention in the intrinsic record using words or expressions of manifest exclusion or restriction representing a clear disavowal of claim scope, the claim terms take on their ordinary and customary meaning. [00:07:59] Speaker 03: And I believe that that applies here, particularly given [00:08:03] Speaker 03: The TMF went out of its way to define a driver. [00:08:07] Speaker 03: And they did so, as you point out, Your Honor, in column four, lines 21 through 24. [00:08:15] Speaker 03: And the board adopted almost verbatim their proposed construction. [00:08:20] Speaker 01: Are you making an lexicography argument? [00:08:24] Speaker 03: In some respects, yes, but I would be making that argument if what was proposed in the 266 patent specification was different than dictionaries that were relied upon by the board. [00:08:38] Speaker 03: They went further than just relying on the intrinsic evidence. [00:08:40] Speaker 03: They looked to a definition found in [00:08:51] Speaker 03: Thank you. [00:08:51] Speaker 03: A definition in the Underwriter Laboratories Standard for Safety, UL 8. [00:08:55] Speaker 03: 8570 that defines a driver. [00:08:59] Speaker 03: And that definition found in that dictionary is very consistent with what was found in the specification. [00:09:06] Speaker 03: So I would rely on lexicography if they were somehow taking a construction or a definition that was different than the norm. [00:09:13] Speaker 03: But I believe it's on all fours with what was understood by the UL dictionary, by Pasitas at the time. [00:09:20] Speaker 03: And so no, I don't think that we would need to rely on that. [00:09:22] Speaker 03: But if we had to, we certainly could. [00:09:25] Speaker 02: Did you want to address the obviousness, your obviousness argument in claim 22? [00:09:30] Speaker 03: I can address it in a number of ways. [00:09:34] Speaker 03: Thanks, Your Honor. [00:09:36] Speaker 03: In the first instance, we believe that the board failed in its entirety to consider claim 22 and its obviousness argument. [00:09:45] Speaker 03: And according to the Supreme Court in Motor Vehicle Manufacturers Association versus State Farm from 1983, that constitutes a quintessential failure of an administrative body to adjudicate an issue. [00:09:57] Speaker 02: And so the- Why isn't it just a mistake? [00:10:01] Speaker 02: Because they did list, I think, claim 22 in a table. [00:10:05] Speaker 02: Why isn't it just a mistake, a typographical error, but in fact, they considered claim 22? [00:10:12] Speaker 03: For two reasons. [00:10:13] Speaker 03: The first is it was not even listed in the claims that were considered in ground two. [00:10:21] Speaker 03: And it tracks claim 17 in its entirety, with the exception of being attached to a building's main. [00:10:29] Speaker 03: And so the board, from our perspective, didn't look at it at all. [00:10:36] Speaker 03: The board rendered its findings with respect to obviousness only on the polarity of elements that is not even contained in claim 22. [00:10:45] Speaker 03: And so we don't believe it's just a typographical error. [00:10:47] Speaker 03: We don't believe that the board actually looked at claim 22 at all. [00:10:51] Speaker 03: I think the mistake, Your Honor, is that they just forgot to look at it. [00:10:55] Speaker 03: And I think that had they done so, given that they found claim 17 to be both anticipated and obvious in light of the IMTRA references, we believe that the board would have similarly found claim 22 to have been obvious. [00:11:10] Speaker 01: If we affirm the board's anticipation finding of claim 17, do we need to reach the board's obviousness finding on claim 17? [00:11:20] Speaker 03: I don't believe you do. [00:11:24] Speaker 03: is pretty clear that the case law with respect to claim 17 says that the court may but does not need to do a separate analysis with respect to obviousness and that given it found anticipation, case law is clear that you can rely on that anticipation finding because in essence it is an obvious analysis at the end of the day as well. [00:11:56] Speaker 03: In fact, the court says that, sorry, I've answered. [00:12:05] Speaker 02: Thank you. [00:12:06] Speaker 03: I'll reserve the rest of my time. [00:12:07] Speaker 03: Thank you very much. [00:12:21] Speaker 02: Thank you, Mr. Long. [00:12:25] Speaker 04: May it please the court, my name is David Long. [00:12:27] Speaker 04: I'm with the Organic Law Firm, here on behalf of the cross-pallant DMF. [00:12:31] Speaker 04: With me today is my co-counselor, Mr. Davidson, from the Davidson Law Group. [00:12:36] Speaker 04: I wanted to start out just to address some of the questions that were raised, but to clarify something that Alper's counsel has stated. [00:12:43] Speaker 04: One of the things he stated was that for LED lights, there's a lower heat requirement. [00:12:48] Speaker 04: Well, that's actually not true, and this is in the record, and Eric talked a lot about this. [00:12:52] Speaker 04: LEDs actually have a significant concern about heat. [00:12:56] Speaker 04: What happens is LEDs, they can't radiate heat like incandescent light bulbs can do. [00:13:02] Speaker 04: They can't convect heat by wind. [00:13:03] Speaker 04: The only way to get rid of the heat is by conducting it away from the back of it. [00:13:07] Speaker 04: And that's important because the juncture in that LED semiconductor gets too hot. [00:13:13] Speaker 04: Its temperature rises, and the LED will fail. [00:13:16] Speaker 04: So it's very important, a very significant design constraint with LEDs, is to get that heat away. [00:13:21] Speaker 04: So that's important when you look at the invention here, [00:13:24] Speaker 04: The inventor, Mr. Donnis, used a very bulky unified casting that served many functions, but one of them is to dissipate heat generated by the LEDs during operation. [00:13:36] Speaker 04: You'll see that, for example, in claim one. [00:13:38] Speaker 04: So that is very important. [00:13:39] Speaker 04: When you look at, for example, the EMTRA device, it's put up in a ceiling where air can flow over. [00:13:44] Speaker 04: right and convect the heat away. [00:13:47] Speaker 04: If you put the device in a junction box, there's not that convection. [00:13:51] Speaker 04: So it's a significant concern. [00:13:53] Speaker 04: The requirements with dealing with heat didn't go away with LEDs. [00:13:56] Speaker 04: It actually became more complex with LEDs. [00:13:59] Speaker 04: Another statement that Elkwood's council said was that it was known, you're using known techniques. [00:14:06] Speaker 04: And Elkwood's experts said that, that it was known to put lights inside of a junction box. [00:14:11] Speaker 04: But that's not true in the board's decision to comment on that, that it wasn't known to put lights, recessed lights, in the junction boxes. [00:14:21] Speaker 04: White Elk was actually relied on, which was this Lynch patent, you may recall it. [00:14:26] Speaker 04: But Lynch, L-Y-N-C-H. [00:14:30] Speaker 04: Yes, sir. [00:14:31] Speaker 04: It's the one that's putting it kind of in a plug socket for long. [00:14:35] Speaker 04: And he said Lynch taught putting the entire device inside of a junction box. [00:14:39] Speaker 04: And it didn't. [00:14:40] Speaker 04: And the board commented on that. [00:14:41] Speaker 04: And it was reasonable for the board to conclude. [00:14:44] Speaker 04: There's substantial evidence for them to conclude that priority didn't teach recessing the light in a junction box. [00:14:49] Speaker 04: And they did the same thing with the Glimpse patent that their expert relied on. [00:14:53] Speaker 04: Glimpse was actually a surface-mounted light. [00:14:56] Speaker 04: And it didn't teach recessing the entire fixture inside of the junction box. [00:15:01] Speaker 04: And there are substantial evidence to support the board's view of that, because when you look at, and in our expert's testimony and the ELPA's own expert's testimony about that prior art, was that, yeah, the whole thing is not recessed inside of the junction box. [00:15:16] Speaker 01: Do you contend that the board substantively penalized whether Claim 22 was obvious? [00:15:24] Speaker 04: We believe they did, but they did not mention it in the obviousness ground. [00:15:30] Speaker 01: So what's the basis for your contention that they substantively analyzed? [00:15:35] Speaker 04: Our ultimate contention is this court would reverse if there was error. [00:15:39] Speaker 04: Not just any error, though. [00:15:40] Speaker 04: It has to be prejudicial. [00:15:41] Speaker 04: We've got to show there would have been a different result if the board had not committed the error, because you're not going to remand it. [00:15:48] Speaker 04: if the board's going to reach the same result. [00:15:49] Speaker 04: Why is that relevant? [00:15:51] Speaker 02: Even under the APA? [00:15:53] Speaker 02: I think so, Your Honor. [00:15:54] Speaker 02: Are we really to guess what they would have done with Claim 22? [00:15:58] Speaker 04: Here's why I say that, Your Honor, is that there's no dispute. [00:16:03] Speaker 04: Elko agreed. [00:16:03] Speaker 04: In fact, as it argued to the board below, that Claim 22 requires the driver to be coupled to building mains power. [00:16:13] Speaker 04: and the building in which it's installed. [00:16:14] Speaker 04: There's no dispute about that. [00:16:16] Speaker 04: There's also no dispute that ALCO did not present an argument as to why it would have been obvious to modify that low voltage electrolyte so it could receive building mains power, which is a high voltage, and be installed in a building. [00:16:29] Speaker 04: There's no dispute about that. [00:16:30] Speaker 04: In fact, ALCO in its appeal briefing said that we didn't know we had to because they alleged that we didn't challenge that. [00:16:37] Speaker 04: But we absolutely did challenge that. [00:16:41] Speaker 01: Are you just relying on the analysis on claim construction to support up some type of analysis on obviousness on claim 22? [00:16:49] Speaker 04: No, Your Honor. [00:16:50] Speaker 04: We rely on that to the point that the board absolutely was cognizant of claim 22. [00:16:56] Speaker 04: It was a key issue and was cognizant and agreed without that it required receiving building mains power. [00:17:02] Speaker 02: What appendix sites would you have us look at to support your contention that it was actually considered? [00:17:09] Speaker 04: Yes, Your Honor. [00:17:10] Speaker 00: I think you have it. [00:17:12] Speaker 04: Oh, thank you. [00:17:13] Speaker 04: Actually, I have. [00:17:14] Speaker 04: I put this so small, I'm having a hard time seeing it. [00:17:17] Speaker 04: But I list every point, in fact, where we said that. [00:17:20] Speaker 04: Yes, we cited in our brief, and I had it just right here. [00:17:25] Speaker 04: We said it for both ground two and ground three. [00:17:29] Speaker 02: But where is it that we would see that the PTAB actually considered the Claim 22? [00:17:36] Speaker 04: Oh, yes, Your Honor. [00:17:37] Speaker 04: As far as the PTAB, I thought your question was that we argued it. [00:17:39] Speaker 02: I know that you argued it. [00:17:42] Speaker 04: OK, I'm sorry. [00:17:43] Speaker 04: That they considered it. [00:17:44] Speaker 04: We know they considered the Claim 2. [00:17:47] Speaker 04: They didn't discuss it in their obviousness analysis. [00:17:50] Speaker 04: I agree with that. [00:17:51] Speaker 04: But the point is that's not reversible error. [00:17:55] Speaker 04: Because since Elko never argued why it would have been obvious, [00:17:59] Speaker 04: If you remanded it back to the board, all they would say is, well, Elko, we repeat, they didn't meet their burden. [00:18:06] Speaker 04: It was impassable, because they made no argument that it would be impassable. [00:18:11] Speaker 04: And so under this court's laws, we understand it. [00:18:14] Speaker 04: You don't reverse and send something back to the board just to give the same result. [00:18:20] Speaker 04: And there's no other outcome they could reach. [00:18:22] Speaker 04: Again, Elko admits, it's only argument now [00:18:26] Speaker 04: about why claim 22 would have been obvious is something they made in their appeal brief. [00:18:30] Speaker 04: It's a new argument which they can't make. [00:18:35] Speaker 04: And so it wouldn't make sense to remand this to the board for the board just to say, well, we said it was unpatentable because they also presented new arguments that it was unpatentable. [00:18:43] Speaker 04: And so it would be the same result. [00:18:45] Speaker 04: And that's why we think their decision should be affirmed on that issue. [00:18:51] Speaker 04: There's another issue Elko raised. [00:18:53] Speaker 04: We explained this in our briefing. [00:18:54] Speaker 04: I think it's fairly readily understood. [00:18:59] Speaker 04: We said, yeah, you don't need a junction box to infringe with claims. [00:19:02] Speaker 04: Well, that's really an infringement issue. [00:19:04] Speaker 04: Claim one, for example, says that you have a plurality of elements that align with the tabs of a standard junction box. [00:19:10] Speaker 04: Claim one doesn't say, and you put it in a junction box. [00:19:15] Speaker 04: Now, you still infringe claim one if you sell a device that has tabs that would align [00:19:20] Speaker 04: uh... where i don't have a line that has been jumped by so when we said yes we're still friends it is because it has those features you don't actually have to put it in a junction box for ten friends we do have some claims that say and then the device is actually put in a junction box and of course the discussion of infringement is only relevant because that which infringes also anticipates or renders something obvious that would be correct your honor and so the device would absolutely though have to have [00:19:50] Speaker 04: of elements that align with tabs of a standard junction box. [00:19:53] Speaker 04: And so standard junction box is absolutely relative to that. [00:19:57] Speaker 04: And our whole point to the board was you didn't actually have to put it in the junction box to have direct infringement. [00:20:03] Speaker 02: Did you want to address the interpretation of driver? [00:20:06] Speaker 04: Yes, Your Honor. [00:20:10] Speaker 04: So when we look at driver, we cite many places in the specification [00:20:17] Speaker 04: where the patent describes the importance of this invention. [00:20:22] Speaker 04: The importance of this invention is to make it compact size so that you can put it inside of a standard junction box. [00:20:29] Speaker 04: You do that by putting the driver and putting the LED module all in the same unified casing. [00:20:36] Speaker 04: That makes it smaller. [00:20:38] Speaker 04: The patent discusses [00:20:40] Speaker 04: Problems with the prior art that would have bigger devices. [00:20:44] Speaker 01: They weren't compact because the driver was outside of the housing for the LED Like around lines 21 through 26 27 [00:21:03] Speaker 01: on that in particular with respect to driver construction? [00:21:05] Speaker 01: Yes, Your Honor. [00:21:05] Speaker 04: That was the one where I believe they said that defined what a driver was. [00:21:09] Speaker 04: That would be like saying a car has wheels to roll, and they're saying, well, OK, all cars are things that have wheels, but a wagon is not a car. [00:21:18] Speaker 04: All that said was a driver. [00:21:24] Speaker 04: can provide the power for the LED. [00:21:27] Speaker 02: It doesn't say. [00:21:28] Speaker 02: It says the driver is an electronic device that supplies and or regulates electrical energy to the light source module and thus powers the light source module to emit light. [00:21:38] Speaker 02: Why isn't that, if not, like psychography, at least strong evidence as to what the [00:21:45] Speaker 02: term driver means? [00:21:47] Speaker 04: Because you have to look at the rest of what the specification says. [00:21:51] Speaker 04: Again, it would be like saying, if you said a car is a vehicle that has wheels, saying, well, that's a car. [00:21:55] Speaker 04: But we know a car has other features, too. [00:21:58] Speaker 04: And when you look in the specification, and one more thing is still in there, you know the driver has other features as well. [00:22:05] Speaker 04: And it's undisputed, Elko's own expert testified that low voltage drivers, drivers that receive low voltage, they don't need a junction box. [00:22:13] Speaker 04: Why is that important? [00:22:15] Speaker 04: When you review the specification, the point of the specification is to make this device small enough that you could fit it inside of a junction box. [00:22:22] Speaker 04: We don't need a junction box for your low voltage device. [00:22:25] Speaker 04: The patent isn't trying to solve any problem about putting low voltage devices in junction boxes that are required, because junction boxes are not required for low voltage devices. [00:22:34] Speaker 04: Their expert agrees. [00:22:36] Speaker 04: I think the only situation he could think of under cross-examination is if you're in a submarine or an industry room that has explosive gases floating around. [00:22:45] Speaker 04: In that case, you might put low voltage light in some kind of special junction box. [00:22:49] Speaker 01: What's your best support for saying that buildings should be read into the construction driver? [00:22:56] Speaker 01: What would you point us to? [00:22:58] Speaker 04: The best thing I would point to is when you look at the patent specification and the final history just as a whole, the whole issue is putting a device that requires a junction box, which is only high voltage devices that require building main voltage, inside the junction box. [00:23:18] Speaker 01: OK, so let me follow up on that. [00:23:20] Speaker 01: So I was looking at what I thought was your best evidence and talking about it with opposing counsel. [00:23:26] Speaker 04: Yes, Your Honor. [00:23:26] Speaker 01: But the question I then have for you is, are there other claims that have building in the limitation, like looking at Claim 22, for example? [00:23:35] Speaker 01: And if we were to put building into the driver construction, wouldn't that make this other part of the limitation somehow redundant? [00:23:44] Speaker 04: Your Honor, it would not, for a couple of reasons. [00:23:49] Speaker 04: What claim 22 says is you have the driver, and claim 22 is about using these complementary key connectors to couple the driver to building mains voltage. [00:23:58] Speaker 04: So the drivers coupled to building mains voltage, in all claim 22 adds, is that you would couple it using complementary key connectors. [00:24:06] Speaker 04: That didn't suddenly convert it into a device that receives building mains power. [00:24:12] Speaker 04: That was always understood when you read the specification in the file history. [00:24:17] Speaker 04: You can't take building and building codes out of this. [00:24:20] Speaker 04: I think Your Honor had referred to in the file history the patent owner's statement that you have to appreciate and understanding our invention that there's problems and challenges in trying to comply with building codes. [00:24:35] Speaker 04: And the invention was designed to address that issue. [00:24:38] Speaker 04: Part of that problem is junction boxes and needing them and connecting to building mains voltage. [00:24:43] Speaker 04: And that's what the patent sought to solve. [00:24:45] Speaker 01: But isn't the part of specification we looked at together even more clear about how drivers should be interpreted? [00:24:55] Speaker 04: It is if you look at the other parts, too. [00:24:57] Speaker 04: For example, and we have this in our briefing, whenever the patent talked about what input went into the driver, it always says, for example, 120 volts or 240 volts. [00:25:06] Speaker 04: And we cite that in our briefing. [00:25:07] Speaker 04: The only examples it gave of the type [00:25:10] Speaker 04: power that the driver received is the type that requires a junction box, this high voltage building mains voltage. [00:25:16] Speaker 04: So you can't just take one little snippet out of the specification and say that defines it. [00:25:21] Speaker 04: You have to look at the entire invention and how it's used. [00:25:24] Speaker 04: Again, if you have low voltage, you don't need a junction box. [00:25:26] Speaker 04: So the invention wouldn't have solved the problem that existed. [00:25:31] Speaker 00: A moment ago, I think you referred to a driver in a low voltage context. [00:25:38] Speaker 00: Are you saying that driver is incompatible with a low voltage system? [00:25:46] Speaker 04: The term driver in the 266 patent? [00:25:51] Speaker 00: Yes. [00:25:51] Speaker 00: Let's talk first about just the way the term driver is used in the industry. [00:25:56] Speaker 00: You can have, and what I think you were saying, if I understood you correctly, was that you could have a driver in a low voltage setting. [00:26:06] Speaker 00: Is that right in terms of the way it's used in the industry, setting aside the 266 patent for them? [00:26:12] Speaker 04: Not for buildings. [00:26:13] Speaker 04: I see I only have 30 seconds left. [00:26:14] Speaker 04: I'd like to reserve that if at all possible, because I want to find those times. [00:26:18] Speaker 02: You can answer these questions, and I will give you extra time for the rebuttal. [00:26:21] Speaker 04: OK. [00:26:21] Speaker 04: Thank you, Your Honor. [00:26:24] Speaker 04: Can you just refresh me the question? [00:26:26] Speaker 00: Yeah. [00:26:29] Speaker 00: reference you made earlier, and I just wanted to clarify what you were saying. [00:26:35] Speaker 00: You suggested to me that you were saying that a driver, at least as usually, the term is usually used, incorporates not only the building mains level of power, but also a lower voltage system. [00:26:50] Speaker 00: Is that [00:26:51] Speaker 00: Did I misunderstand you, or were you drawing a distinction between the way the term driver is generally used in the industry versus the way it's used in the 266 pack? [00:27:00] Speaker 04: So my intention, if I misspoke, was that in the industry, when you're talking about buildings, when you say building mains power, that brings to mind if someone's still in the area, oh, that's a very high voltage. [00:27:11] Speaker 00: I'm actually wanting to focus on the term driver. [00:27:14] Speaker 00: Yes, Your Honor. [00:27:15] Speaker 00: Without respect to building mains or anything else, [00:27:18] Speaker 00: If you were to describe to a person of skill in this art, a driver, would that person understand that to be limited just to building mains level power, or would it incorporate low voltage systems as well? [00:27:34] Speaker 04: Thank you. [00:27:35] Speaker 04: Yes, and in fact, I was getting to that. [00:27:36] Speaker 04: Because you know that buildings have building mains power, any deriver you use will need to be coupled powered by building mains power. [00:27:45] Speaker 04: Because that's high voltage, you know [00:27:47] Speaker 04: What driver you're using here is one that's going to have to receive building mains voltage. [00:27:51] Speaker 04: Or the alternative would be to have a converter outside of the casting to convert that building mains voltage to other voltage. [00:27:58] Speaker 02: Especially, I don't think you're answering the question asked. [00:28:00] Speaker 02: The question asked was, is the word driver unique? [00:28:05] Speaker 02: As I understand it, is it unique to building mains? [00:28:08] Speaker 02: Or can the word driver be used outside of that context? [00:28:11] Speaker 02: In which case, what does it mean? [00:28:15] Speaker 04: And so it can be used outside of the context, but it depends on the context. [00:28:20] Speaker 04: A driver for low voltage landscaping would be one that receives or outputs low voltage. [00:28:25] Speaker 04: In the building industry, in the context of the 266PAT, which is talking about building codes and such, in that context, when you say driver, you know it means one that receives building mains. [00:28:36] Speaker 04: It may mean something, for example, they cite to this UOLab standard, and that UOL standards, they define driver in a way that encompass things like garden lights and the such. [00:28:46] Speaker 04: And so when they define driver there, they have to define it broadly to encompass these other circumstances. [00:28:52] Speaker 02: OK, thank you. [00:28:53] Speaker 02: Do you have any further questions? [00:29:02] Speaker 02: Mr. Tache, you have about three minutes. [00:29:06] Speaker 02: I'll give you four minutes as well, just to make sure you have a similar amount of time. [00:29:12] Speaker 03: Thank you, Your Honor. [00:29:13] Speaker 03: Hopefully I won't need the time. [00:29:16] Speaker 03: Let me answer the question with respect to Driver. [00:29:20] Speaker 03: The intra-references specifically include the driver. [00:29:25] Speaker 03: So the short answer to your question is, Your Honor, absolutely driver is not limited to high voltage usage. [00:29:33] Speaker 03: It's clearly shown in LED recessed lighting, and it's been there for decades. [00:29:37] Speaker 03: And so the short answer is driver is not limited to high voltage. [00:29:41] Speaker 03: The second thing is, with respect to heat dissipation, ceilings in boats are lower than ceilings in houses. [00:29:47] Speaker 03: So the same heat dissipation issues exist in the mobile environment and had existed for decades before they were put into junction boxes. [00:29:58] Speaker 03: One thing I would like to address is Council for DMF [00:30:04] Speaker 03: takes issue with some statements made by our expert in the context of the board and in their declaration. [00:30:12] Speaker 03: One of the things that we're most concerned with and most disappointed in is the misrepresentations that were made by DMF to the board with respect to ALCO's characterizations and that of our expert with respect to what Gifford teaches. [00:30:28] Speaker 03: And it's very clear from paragraph 110 of our experts' declaration that begins at appendix 168 through 274. [00:30:55] Speaker 03: Pardon me. [00:30:58] Speaker 03: 110, our expert makes unequivocally clear that what he's showing is a partial image of the Gifford figure three, or figure one, pardon me. [00:31:08] Speaker 03: And the reason he does so is to simply show that the adapter is recessed within the junction box. [00:31:15] Speaker 03: And so for some reason, the board [00:31:19] Speaker 03: adopted the position and then questioned the credibility of our expert and discounted the Gifford reference throughout. [00:31:28] Speaker 03: And the Gifford reference is a relevant reference because it's pertinent to the art, not because it's analogous art, because the board limited the art to recessed lighting, but because it actually relates to the same kind of problem that was being connected, which is in its primary purpose connecting a recessed light to a junction box. [00:31:47] Speaker 03: And so all of [00:31:49] Speaker 03: the references to the Gifford prior art and all of the statements made by our expert were discounted by the board and his credibility was questioned and we believe that that stems predominantly to TMS misrepresentations as to the fact that our expert at no point [00:32:08] Speaker 03: intentionally withheld or misrepresented what that image was that was included in his declaration. [00:32:14] Speaker 03: And secondly, neither did ELCO nor its expert at any time represent to the board that the Gifford reference was teaching a recessed lighting. [00:32:24] Speaker 03: And TMS brief is replete with statements as to that nature, but they don't want sight to anything specific because they can't. [00:32:36] Speaker 03: Thank you. [00:32:42] Speaker 02: Mr. Locke? [00:32:43] Speaker 04: Thank you, Your Honor. [00:32:44] Speaker 04: I wanted to respond to ALCO's counsel about what they represent to the board about what Gifford disclosed. [00:32:50] Speaker 04: The board cited to the following passages on either ALCO's petition or its expert. [00:32:55] Speaker 04: ALCO's petition states, quote, a procedure would have been motivated to apply the teaching of Gifford that a housing for components of compact lighting devices can be inserted into and attached to a junction box. [00:33:07] Speaker 04: That's the board's decision at page 44. [00:33:10] Speaker 04: The board cites, at page 49, the statement in Elkwood's petition that Gifford teaches that such compact recessed lighting systems may be recessed within an electrical junction box suitable for installation of ceiling. [00:33:28] Speaker 04: The board at page 49 cites Elkwood's expert testimony that Gifford teaches a lighting system that is able to be installed in a standard junction box. [00:33:37] Speaker 04: The board of page 50 cites the ALGOS expert testimony that Impton and Gifford are both directed to lighting products that install in shallow recesses. [00:33:46] Speaker 02: And that first quote that you said said it was recessed lighting, right? [00:33:50] Speaker 02: The other two don't refer to recessed lighting as a lighting. [00:33:53] Speaker 04: The first one could be recessed with analytics. [00:33:57] Speaker 00: Also, importantly, an ALGOS page that you cited for that. [00:34:02] Speaker 04: The page for that one. [00:34:04] Speaker 04: You have the appendix site, that would be great. [00:34:06] Speaker ?: I do. [00:34:07] Speaker 04: That's appendix site page 135 of the board decision. [00:34:12] Speaker 04: And it's the board decision that, no, I apologize. [00:34:18] Speaker 04: The appendix site for the petition is at appendix 135. [00:34:22] Speaker 04: The board decision is 4448. [00:34:24] Speaker 04: ALCA also ignores a significant argument they made. [00:34:28] Speaker 04: ALCA and its expert testified that. [00:34:31] Speaker 04: that adapter plate in Gifford was equivalent to the unified casting. [00:34:37] Speaker 04: The unified casting is claimed to house the driver, house the LED, and dissipate heat generated by the LED. [00:34:43] Speaker 04: In fact, Elkins' expert, you may recall, had an image where they took the image of the unified casting to patent, and the image of that adapter oriented them the same, colored them the same, and said that they were equivalent. [00:34:57] Speaker 04: And the board looked at that and said, no, no, they're not. [00:35:02] Speaker 04: And so they absolutely made the argument that it taught recessing and recessing a light inside of the junction box. [00:35:10] Speaker 04: And that just wasn't true. [00:35:11] Speaker 04: When you look at Gifford, the light fixture actually is a serviceman light that hangs well below the adapter plate. [00:35:19] Speaker 04: As the board properly and with substantial evidence found, you wouldn't conclude that that houses a light fixture. [00:35:25] Speaker 04: So in looking at the [00:35:29] Speaker 04: The obvious is sorry, but then overall, the issues for ground three, which is the only one they appeal for every claim, but claim 22, the board has substantial evidence for their conclusion. [00:35:40] Speaker 04: They concluded that Alco had not shown one would use Gifford and would be motivated to use Gifford to mount a lighting device inside of a junction box. [00:35:50] Speaker 04: In fact, the board also pointed to testimony from DMS expert Mr. Benio that [00:35:57] Speaker 04: The person still in the yard wouldn't be motivated to take this entry device, this low voltage device that can be mounted, readily mounted directly to the ceiling with screws, and that didn't need a junction box. [00:36:08] Speaker 04: They wouldn't be motivated to go through the time, labor, and expense of installing a junction box and then attaching it to a junction box that doesn't need. [00:36:17] Speaker 04: Our experts explain, in fact, that this is important because [00:36:20] Speaker 04: You may be installing thousands of lights in a building or the such, so you can just screw it directly into the ceiling and do a five-minute install, or you can install a junction box and revert five minutes to 20. [00:36:32] Speaker 04: And when you're doing that for a thousand lights, that makes a big difference. [00:36:35] Speaker 04: RF decided it's undisputed, unchallenged. [00:36:39] Speaker 04: that the reason you use low voltage lights is because you don't have to deal with the safety standards. [00:36:44] Speaker 02: I'm going to interrupt you and just let you know that you are now out of time. [00:36:47] Speaker 02: Do you have one sentence that you would like to provide to summarize it? [00:36:50] Speaker 02: Because we do have your briefs. [00:36:53] Speaker 04: OK, well, then I guess we rest certainly on our briefing on these issues. [00:36:58] Speaker 04: I thank your honor for taking the time. [00:37:04] Speaker 02: Thank you. [00:37:04] Speaker 02: The case is submitted. [00:37:05] Speaker 02: I thank both counsel for their argument.