[00:00:00] Speaker 00:
Mr. Gunter, I understand you reserved four minutes of time for rebuttal.

[00:00:12] Speaker 00:
Is that correct?

[00:00:14] Speaker 02:
Yes, it is, Your Honor.

[00:00:15] Speaker 00:
Okay.

[00:00:16] Speaker 00:
You may proceed.

[00:00:19] Speaker 02:
Good morning, Your Honors.

[00:00:20] Speaker 02:
May it please the Court.

[00:00:22] Speaker 02:
The District Court error would have narrowed the scope of the asserted claim in a manner contrary to the intrinsic record

[00:00:31] Speaker 02:
claim construction.

[00:00:34] Speaker 02:
The district court's construction improperly added a negative limitation, namely the exclusion of any other mechanical support.

[00:00:43] Speaker 02:
That requirement does not exist in the plain reading of the claim, it does not exist in the specification, and in fact reads out preferred embodiments, and it does not arise from statements made in the file history.

[00:00:57] Speaker 02:
So if I could start with the actual claim language, we're really focused at

[00:01:01] Speaker 02:
APPX38, we're looking at the last claim limitation.

[00:01:07] Speaker 02:
And what that claim limitation is directed towards is creating a single connection pipe that is both electrically conductive and mechanically stable.

[00:01:18] Speaker 02:
So the claim you'll see in that last limitation uses the words as well as.

[00:01:24] Speaker 02:
That means both of those properties are achieved by this connection.

[00:01:28] Speaker 02:
And it also uses the word exclusively

[00:01:31] Speaker 02:
That means that it's the one connection that has both properties, electrical conductivity and mechanical stability.

[00:01:41] Speaker 02:
I'll note that this is a method claim, and when you get to the last step of the method, the specification describes it as creating this irreversible bond.

[00:01:49] Speaker 02:
That's an APPX 37, column 5, lines 55 to 65.

[00:01:56] Speaker 02:
So once you have that connection, namely a connection that has both properties,

[00:02:01] Speaker 02:
you meet the claim.

[00:02:03] Speaker 02:
The district court erred by adding another limitation on top of that, mandating exclusion of any other additional mechanical support.

[00:02:13] Speaker 02:
So I'd like to walk through, with the court's permission, a couple of citations in our patent specification that really kind of sets out this distinction.

[00:02:23] Speaker 00:
And so I would first point the court to- Wasn't that part of the claim construction which you say is a negative limitation that

[00:02:31] Speaker 00:
court imported, but wasn't that the result of the prosecution history and what the applicant disclaimed?

[00:02:40] Speaker 02:
So the district court relied on two things to incorporate that limitation.

[00:02:46] Speaker 02:
You're correct that the court looked at the prosecution history and the court also looked at four statements that were made in the specification.

[00:02:52] Speaker 02:
And I would like to address those portions of the file history, if you would allow it.

[00:02:58] Speaker 02:
because I do not believe any of those cited references stand for disavowal or for justification of the corporate indemnity limitation.

[00:03:07] Speaker 02:
So if I could, I would start with the first reference that the court was really looking at.

[00:03:12] Speaker 02:
It's on APPX 848.

[00:03:21] Speaker ?:
So if you start at 848,

[00:03:26] Speaker 02:
If you look at that first paragraph at the top of the page, it's discussing what's referred to as the D1 reference.

[00:03:32] Speaker 02:
This is the fanilla reference that is also a part of our background in our patent specification.

[00:03:38] Speaker 02:
And if you look at paragraph two, what's said here is that fanilla gets a mechanical connection via a separate adhesive layer.

[00:03:49] Speaker 02:
In other words, the separate adhesive layer is what provides the mechanically stable

[00:03:55] Speaker 02:
aspect that would be found as referred to in our claim limitation.

[00:04:00] Speaker 02:
And that's different than our invention is talking about with a single connection that gets both the electrically conducted as well as mechanically exclusive via contacts in the lands.

[00:04:13] Speaker 02:
And so what you'll see in paragraphs three and then four on page 848 and then going on to the next page at 849,

[00:04:27] Speaker 02:
vanilla could have solder, therefore it would need to mechanically stay old aspect.

[00:04:34] Speaker 02:
And what the patent owner's point was not that

[00:04:55] Speaker 02:
that in the familiar reference.

[00:04:57] Speaker 02:
That was patent owner's point here.

[00:05:01] Speaker 04:
Counsel, can you address the sentence at the end of the first paragraph on 849 while you're at it?

[00:05:08] Speaker 02:
Yes.

[00:05:09] Speaker 02:
And so here, what the patent owner was saying was not that you must eliminate the additional layer.

[00:05:17] Speaker 02:
The patent owner was basically saying that there's no indication that it has to be eliminated.

[00:05:29] Speaker 02:
The mechanical stability can be captured through the single point that is both electrically conductive and mechanically stable.

[00:05:38] Speaker 02:
And there was nothing in vanilla to show that that separate mechanical stable adhesive layer could be removed.

[00:05:48] Speaker 02:
And so that's what the patentee was referring to.

[00:05:50] Speaker 02:
He should be eliminated and be obtained solely.

[00:05:54] Speaker 02:
Words in that paragraph.

[00:05:59] Speaker 02:
And if I could direct the court's attention to the patents, you'll see that.

[00:06:10] Speaker 00:
Does it, the prosecution history and the language that in the amendment made as a result of the Gemma rejection,

[00:06:21] Speaker 00:
And the amendment made where it talks about the two substrates is established exclusively.

[00:06:26] Speaker 00:
Doesn't that directly go to your argument and undermine it?

[00:06:32] Speaker 02:
The exclusively is talking about a single connection that has both properties, electrically conducted and mechanically stable.

[00:06:39] Speaker 02:
So if you have others that provide mechanical stability, for example, that's fine, but there has to be one connection that captures both properties.

[00:06:51] Speaker 02:
describing here and distinguishing from the vanilla reference.

[00:06:54] Speaker 02:
And that same concept is captured in the background of our patent, namely column 3, lines 39 to 59, where again the patentee is describing the difference with vanilla as having separate connections for electrical conductivity and mechanical stability.

[00:07:12] Speaker 02:
So in vanilla it has

[00:07:19] Speaker 02:
Epoxy resin adhesive for the mechanical stability and again, that's different than our patent which has one connection with both properties The same thing we said the district court looked at several statements in our specification and none of those statements rise to a clear unambiguous words of

[00:07:48] Speaker 02:
for incorporating this negative notation.

[00:07:52] Speaker 02:
So first, if you look at column three, lines 31 to 34, this is talking about another prior reference, the 723 reference.

[00:08:02] Speaker 02:
And in the 723 reference, again, it had an electrical connection that was provided via a soldered joint, and then it had a mechanical connection that was by virtue of use of a polyimide.

[00:08:15] Speaker 02:
So again, those are two separate

[00:08:17] Speaker 02:
connections that are handling the two different properties.

[00:08:21] Speaker 02:
And so that's what the statements here are referring to in column three, bar patent.

[00:08:26] Speaker 02:
The same can be said at column five, lines 26 to 32.

[00:08:32] Speaker 02:
Again, the words that the patentee is using here is, quote, is not necessary.

[00:08:38] Speaker 02:
So the fact that a separate layer is not necessary, that does not equate to must be excluded.

[00:08:44] Speaker 02:
Those are not the two things.

[00:08:47] Speaker 02:
No mechanical connection is required, does not equal separate mechanical connections.

[00:08:55] Speaker 02:
And again, on the third citation, in column five, lines 32 to 36, the patentee is using a similar language.

[00:09:04] Speaker 02:
He's using the language can be dispensed.

[00:09:07] Speaker 02:
So can be dispensed does not have the same effect of what the district court did, which was a signage construction of must be dispensed.

[00:09:15] Speaker 02:
Those are not the same thing.

[00:09:18] Speaker 02:
And finally, at column five, line 41 to 48.

[00:09:21] Speaker 02:
Again, this is not a disclaimer.

[00:09:23] Speaker 02:
It's not clear.

[00:09:24] Speaker 02:
It's not ambiguous.

[00:09:26] Speaker 02:
It's not using words of manifest exclusion and does not serve to add the negative connotation.

[00:09:33] Speaker 02:
If I could point the court to one other aspect, we believe that the court's construction reads out one of the preferring points.

[00:09:42] Speaker 02:
If you look at the specification at APPX 37,

[00:09:47] Speaker 02:
Palms 6, lines 9 through 13.

[00:09:52] Speaker 02:
What you'll find here is that the patentee is using the language, the present invention.

[00:09:58] Speaker 02:
And so it's indicating that this is a preferred environment.

[00:10:01] Speaker 02:
And what it says here in lines 9 to 13, it says you can have it easily at certain locations without electrical conductivity.

[00:10:11] Speaker 02:
In other words, you can have other mechanical connections and still be within the present invention.

[00:10:17] Speaker 02:
And so there was some discussion at the Markman hearing of dependent claim 11.

[00:10:22] Speaker 02:
And I think the point here is that if you look at dependent claim 11, which depends from claim 1 that we've been discussing so far, claim 11 would both mandate exclusion of other mechanical connections by virtue of it, depending from claim 1, and it would also require mechanical connections.

[00:10:43] Speaker 02:
It would conjugate itself, and therefore be read out.

[00:10:47] Speaker 02:
And this was talked about at the Markman hearing for the court's ease of reference.

[00:10:52] Speaker 02:
That was at APPX 962 to 964.

[00:10:54] Speaker 02:
So I'd like to turn to support for the plaintiff's construction.

[00:11:03] Speaker 02:
Again, starting with the plain language of the claims, the last step of a method claim, the as well as language and the exclusively language.

[00:11:12] Speaker 02:
Both of those go towards one connection type

[00:11:15] Speaker 02:
mainly via the lands, that has both electrical conductivity and mechanical stability.

[00:11:22] Speaker 02:
And the specification goes to some relief to describe this connection.

[00:11:25] Speaker 02:
There was some discussion at the district court level of whether this was indefinite or not.

[00:11:29] Speaker 02:
But I would point the court's attention to APBX 37 at column 5, lines 26 to 48.

[00:11:38] Speaker 02:
This is where the patent's really talking about a suitable bonding method, what it refers to as a suitable bonding method.

[00:11:49] Speaker 02:
invention is really about making 3D stack chips.

[00:11:54] Speaker 02:
It's about doing kind of an iterative stacking process.

[00:11:57] Speaker 02:
So you're wanting to have a suitable bonding that's useful.

[00:12:00] Speaker 04:
Can I ask you another question about column 6 where you pointed us before?

[00:12:03] Speaker 04:
So does that section that you pointed us to, I think it's around line 9 through 13 or so, does that really talk about having other types of connections or is it more so focused on that the sole connection doesn't have to be

[00:12:18] Speaker 04:
Electrically activated, how would you understand that phrase?

[00:12:23] Speaker 02:
I would understand this phrase to say that you can it the patent is saying you can have other locations that have adhesive And so they're only mechanical and not electrical and so what it's saying is as long as you meet the last limitation of the claim namely having a connection that has both properties a Single connection with both properties.

[00:12:44] Speaker 02:
You can have other locations that have mechanical adhesion

[00:12:49] Speaker 02:
And again, that would be read out under the district court's construction.

[00:12:53] Speaker 02:
And it would also render dependent claim 11 self-contradictive.

[00:13:04] Speaker 02:
Returning to plaintiff's construction, one other spot I want the court's attention to is column 5, lines 49 to 65.

[00:13:24] Speaker 02:
and it's talking about using appropriate materials and it gives several examples such as copper and tin.

[00:13:29] Speaker 02:
And what this has the effect of doing is that as you melt the materials, they form a higher bonding temperature than the process used to melt them.

[00:13:40] Speaker 02:
And that's what really creates the irreversible connection and that's what we've tried to capture in our proposed construction.

[00:13:49] Speaker 02:
One other thing that I will mention before I go reserve to rebuttal time

[00:13:57] Speaker 02:
before it.

[00:13:58] Speaker 02:
And so while that's not legal error per se, on de novo review, we believe this court can consider it.

[00:14:05] Speaker 02:
And so at APPX 349 to 362, and then 369 to 70, there exists the testimony of one ordinary still in the art, Dr. Garou, who is unchallenged based on his qualifications and credentials.

[00:14:21] Speaker 02:
He's clearly one still in the art.

[00:14:24] Speaker 02:
And under Phillips, he gives meaning

[00:14:26] Speaker 02:
as a personal ordinary still yard would understand the claim terms.

[00:14:30] Speaker 02:
And so if you look specifically at paragraphs 27 to 36 of his declaration, he walks through the same analysis, looking at the same references that I just mentioned to the court, and agrees that it's not indefinite, and agrees that the construction proposed by the plaintiff.

[00:14:47] Speaker 00:
Counselor, you're well into your rebuttal time.

[00:14:49] Speaker 00:
Do you want to reserve that time?

[00:14:51] Speaker 02:
Yes, Your Honor.

[00:14:53] Speaker 00:
OK.

[00:14:53] Speaker 00:
Thank you.

[00:14:57] Speaker 00:
See you for Mr. Jacobs.

[00:15:38] Speaker 01:
Thank you, your honor, and may it please the court.

[00:15:42] Speaker 01:
Blair Jacobs from Coolsmith on behalf of the Appellee TSMC.

[00:15:48] Speaker 01:
In this patent, we have a process of connecting two semiconductor substrates in a way that the connection is made exclusively through the lands without any other mechanical connection layer or mechanical support.

[00:16:05] Speaker 01:
We know this because the applicants used

[00:16:08] Speaker 01:
expressed words of exclusion in the claim language through a claim amendment, in fact, adding the words exclusively.

[00:16:18] Speaker 01:
They explained the reason for this exclusion of additional mechanical layers of support in the specification, discussing disadvantages of using additional layers of support and advantages of eliminating these additional layers of support.

[00:16:34] Speaker 01:
And they triply explained this exclusion of additional layers of support in the prosecution history, informing the examiner that words such as solely the lands were connecting the two substrates.

[00:16:52] Speaker 01:
and that the additional epoxy resin adhesive support layer, which was at issue in the prior art reference, vanilla, should be eliminated.

[00:17:01] Speaker 01:
And they also used the words must be eliminated.

[00:17:04] Speaker 01:
So three separate times, in every part of the intrinsic record, the patentee made similar statements, clearly informing the meaning of the claim language and showing how the inventor understood the invention.

[00:17:18] Speaker 00:
What about the specification?

[00:17:21] Speaker 00:
and not write prohibition in the specification that prevents using the mechanical layer between the substrates?

[00:17:32] Speaker 01:
Your Honor, that would be more of a disclaimer argument.

[00:17:35] Speaker 01:
The argument here at the district court found that this is a Phillips interpretation, plain and ordinary meaning.

[00:17:40] Speaker 01:
So there is, and we're not claiming, and we didn't claim below, that there is disparagement that rises to the level of disclaimer

[00:17:48] Speaker 01:
in the specification.

[00:17:50] Speaker 01:
Instead, when you talk about disadvantages of using the additional mechanical layer, such as difficulty in leveling and thermal property difficulties and things of that nature, and then when you follow that up, Your Honor, with saying the present invention is advantageous

[00:18:09] Speaker 01:
Insofar as, due to the fact that vertical, mechanical, and electrical connections are realized between the upper and lower substrate by means of a suitable bonding method, it is not necessary to apply any separate layer, such as a polymide layer, things of that nature.

[00:18:26] Speaker 01:
That is informing the plain and ordinary meaning.

[00:18:28] Speaker 01:
And actually, Your Honor, it's very, very consistent with the claim language.

[00:18:32] Speaker 01:
The claim language tells us that we have an electrically conductive

[00:18:37] Speaker 01:
as well as mechanically stable connection between the two substrates and that's important.

[00:18:43] Speaker 01:
that is established exclusively via the first and second lands.

[00:18:48] Speaker 01:
The construction that we're hearing, the single connection instruction that has been put forth by the appellant here, eliminates the substrate completely from the analysis.

[00:18:58] Speaker 01:
And it focuses instead just on the lands.

[00:19:01] Speaker 01:
But the establishing exclusively language exclusively is modifying the verb established.

[00:19:08] Speaker 01:
And it's referring to the connection of the two substrates.

[00:19:11] Speaker 01:
And that is consistent with the Planned and Ordinary Meaning construction of the district court here.

[00:19:15] Speaker 01:
You start with the claim language when you're looking at Phillips.

[00:19:19] Speaker 01:
And this claim recites a mechanically stable connection between two substrates

[00:19:25] Speaker 01:
that must be established exclusively through the first and second lands.

[00:19:29] Speaker 01:
Now, think about it this way.

[00:19:30] Speaker 01:
If there were any other mechanical connection, layer, or support between the two substrates, then the mechanically stable connection between these two substrates would not be established exclusively via the first and second lands.

[00:19:47] Speaker 01:
And that's one of the fundamental issues when we're looking at the intrinsic record here.

[00:19:52] Speaker 01:
The claim language tells us the plain and ordinary meaning of this claim term that's in dispute.

[00:19:59] Speaker 01:
And the appellant has consistently not addressed the connection of the two substrates.

[00:20:05] Speaker 01:
And that's important because when we move to the intrinsic record, we understand the plain and ordinary meaning from the claim language itself.

[00:20:13] Speaker 01:
But when we move to the specification,

[00:20:16] Speaker 01:
Your Honor, Judge Raina, this criticism of the disadvantages of the prior art that used separate mechanical connection layers or support confirms, it's confirmatory under Phillips, of that plain and ordinary meaning that we have.

[00:20:31] Speaker 01:
And the reason why we have such plain and ordinary meaning here

[00:20:35] Speaker 01:
And we do not need to resort to disclaimer is because the exclusion is actually in the claim language itself, when that word exclusively needed to be added during prosecution to overcome a reference that actually used a separate mechanical layer.

[00:20:51] Speaker 01:
And that's exactly where that word is.

[00:20:53] Speaker 04:
Can you address column 5, lines 26 through 32 in the statement there about it's not necessary to apply any separate layer?

[00:21:01] Speaker 04:
I believe that was also addressed by your opposing counsel previously.

[00:21:04] Speaker 01:
So 26 through 32 and appendix 37, Your Honor, is that right?

[00:21:09] Speaker 01:
Yes.

[00:21:09] Speaker 01:
Again, Your Honor, that is part of the confirmatory language that's telling us that it's not necessary to provide any layer, but it's advantageous to eliminate that.

[00:21:23] Speaker 01:
And if it's advantageous to eliminate that, we're not saying, once again, that this is disparagement that rises to the layer of disclaimer, nor did the district court find that that was necessary in this plain and ordinary meaning construction.

[00:21:37] Speaker 01:
We're just saying that under Phillips, when you see the word exclusively in the claim that results from an amendment,

[00:21:44] Speaker 01:
that is distinguishing prior art.

[00:21:46] Speaker 01:
And when you look at the Notice of Allowance here, that's important to the record as well, the Notice of Allowance is found at Appendix 319.

[00:21:55] Speaker 01:
And the conclusion under the Reason for Allowance is, I'm at the very, very end of the first paragraph.

[00:22:03] Speaker 01:
However, none of the prior art tardis suggested a method of forming second lands which are connected

[00:22:10] Speaker 01:
an electrically conductive manner to second contact areas connecting the first and second semiconductor substrate in such a way that electrically conductive as well as mechanically stable connection between the two substrates is established exclusively via the first and second land.

[00:22:27] Speaker 01:
So the reasons for allowance also tie into this

[00:22:34] Speaker 01:
amendment that was made with regard to prior art, the vanilla reference, that actually contained additional mechanical layers.

[00:22:41] Speaker 04:
Do you contend that there is a disclaimer in the prosecution history?

[00:22:44] Speaker 04:
We were looking at that previously with your present counsel.

[00:22:48] Speaker 01:
So the best way to respond to that, Your Honor, is that the district court did find prosecution history disclaimer, but it was done so in a confirmatory fashion.

[00:22:59] Speaker 01:
In other words, confirming

[00:23:00] Speaker 01:
the plain and ordinary meaning construction.

[00:23:03] Speaker 01:
This court has said in the past that without finding a disclaimer, the prosecution history can be evaluated to determine how a person of ordinary skill in the art would understand a given claim term.

[00:23:16] Speaker 01:
And that's our argument here, Your Honor.

[00:23:18] Speaker 01:
You don't have to get to the issue of prosecution, history, disclaimer, because under Phillips, we have statements that we can look to ascertain how one of ordinary still in the art understood the scope of this invention.

[00:23:32] Speaker 01:
And it's fully consistent with the specification.

[00:23:35] Speaker 01:
And it's fully consistent with the claim language as well.

[00:23:39] Speaker 01:
However, Your Honor, I will mention that when we look to Appendix 849, I believe you brought that up during Appellate's arguments, there's a couple of things that we think are very, very telling.

[00:23:50] Speaker 01:
with regard to Appendix 849 and statements that were made to the examiner.

[00:23:55] Speaker 01:
Again, they're looking at prior art that uses an epoxy resin adhesive layer.

[00:24:01] Speaker 01:
That's the additional mechanical support.

[00:24:04] Speaker 01:
And they tell the examiner that the epoxy resin adhesive layer should be eliminated and that the mechanical connection between the two substrates is then to be obtained

[00:24:16] Speaker 01:
solely via the solder points.

[00:24:18] Speaker 01:
The solder points are the lands.

[00:24:19] Speaker 01:
So that's exactly the claim of construction, plain and ordinary meaning, that the district court provided here.

[00:24:24] Speaker 01:
But I would also mention that if you look further on 849, the argument is made, quote, that the epoxy resin adhesive layer

[00:24:33] Speaker 01:
Must be omitted so it's not just that it should be omitted it must be omitted and that's because if it's not omitted We'll have additional support and the vanilla reference would invalidate the claim That's exactly why we're here right now, and that's why focusing on this single connection layer is

[00:24:50] Speaker 01:
construction that is being put forth by the appellant misses the boat.

[00:24:56] Speaker 01:
And the boat here is the connection of the two substrates, and whether you have additional mechanical support in the connection of those two substrates.

[00:25:11] Speaker 01:
So if I could, let me just touch briefly upon their proposed construction, subject to any questions that the court may have regarding the plain, ordinary, meaning construction that we're putting forward.

[00:25:21] Speaker 01:
Now their construction is a connection that is both electrically conductive and mechanically stable is created exclusively via the appropriate connections, they use the word appropriate connections, of the first and second lands.

[00:25:36] Speaker 01:
Now think about it, that connection and the argument that we heard earlier today has nothing to do

[00:25:42] Speaker 01:
with the connection of two substrates.

[00:25:45] Speaker 01:
And yet, if you look at claim one, which is a method claim, the first step is identifying a first substrate.

[00:25:51] Speaker 01:
The second step is identifying a second substrate.

[00:25:54] Speaker 01:
And the last step of that method claim is combining.

[00:25:58] Speaker 01:
It's actually connecting those two substrates.

[00:26:02] Speaker 01:
And so to read the substrates out of the connection essentially is reading the point of novelty out of the invention completely.

[00:26:10] Speaker 01:
But the bottom line here is their construction, and they don't hide this, page one of their gray brief, relies upon the premise that the invention does not exclude

[00:26:22] Speaker 01:
does not include an exclusion of additional mechanical support.

[00:26:25] Speaker 01:
Said another way, they're saying that the invention allows for additional mechanical support between the two substrate layers.

[00:26:33] Speaker 01:
Now what's the problem with that?

[00:26:35] Speaker 01:
The problem with that is it contradicts the intrinsic record, every part of the intrinsic record.

[00:26:40] Speaker 01:
It would read into the disadvantages that they state that their invention was trying to overcome in the prior art.

[00:26:48] Speaker 01:
It would create those same disadvantages once again.

[00:26:51] Speaker 01:
But more importantly, it would run us right back into this vanilla reference.

[00:26:55] Speaker 01:
And all of the way that they distinguished vanilla in trying to obtain this invention would rear its head once again.

[00:27:02] Speaker 01:
Vanilla would once again be invalidating, because you'd have that additional mechanical stability.

[00:27:07] Speaker 04:
How do you respond to opposing counsel's arguments with respect to Column 6, Lines 9 through 13?

[00:27:12] Speaker 01:
Yes, Your Honor, thank you very much.

[00:27:14] Speaker 01:
So the district court looked at this.

[00:27:17] Speaker 01:
This was appendix 15.

[00:27:19] Speaker 01:
And the district court found that column 6 only teaches that the disclosed method can be used to create contacts that are used only as a mechanical connection.

[00:27:29] Speaker 01:
That would be if an electrical connection is not desired.

[00:27:32] Speaker 01:
But it does not go so far as to allow for additional mechanical layers.

[00:27:38] Speaker 01:
So what Appellant is arguing here with regard to column six, your honor, is that all lands must be connected in both an electrically conductive and mechanically stable manner.

[00:27:50] Speaker 01:
And if they're not connected in electrically conductive manner, they are only mechanical support, not lands.

[00:27:58] Speaker 01:
This makes no sense, because as we know, lands provide mechanical support.

[00:28:04] Speaker 01:
And also, I should make clear, when we look at the statement that's identified here, Your Honor, there are always more than one land.

[00:28:10] Speaker 01:
There are many, many lands connecting these substrates.

[00:28:14] Speaker 01:
Column 6 explains that some of your lands are electrically conductive and lend mechanical support, and some are not.

[00:28:21] Speaker 01:
This is through the use of the words certain locations, which is on line 11 of Column 6.

[00:28:29] Speaker 01:
So this doesn't undermine the fact, Your Honor, that the lands must still be

[00:28:34] Speaker 01:
the exclusive provider of both mechanical stability and electrical connectivity in connecting the two substrates.

[00:28:43] Speaker 01:
If we look at claim 11, it's entirely consistent with the judge's claim construction and the claim construction that is the claim of ordinary meaning here.

[00:28:52] Speaker 01:
It's a method according to claim one where not all the first, second lands are connected in an electrically conductive manner.

[00:29:00] Speaker 01:
So some are and some are not.

[00:29:02] Speaker 01:
The some are would still be consistent with claim one.

[00:29:07] Speaker 01:
It would still be establishing each and every one of the limitations of claim one.

[00:29:11] Speaker 01:
The fact that some are not shows us that we have a dependent claim that's limiting the full scope of claim one as dependent claims tend to do.

[00:29:20] Speaker 04:
In your view, do we need to reach the extrinsic evidence?

[00:29:23] Speaker 04:
They talked about some of it being not reached by the district court.

[00:29:27] Speaker 01:
The extrinsic evidence argument is interesting because it wasn't touched upon by the district court.

[00:29:33] Speaker 01:
So it raises a higher level procedural issue with regard to TAVA.

[00:29:37] Speaker 01:
But let's only get to the bottom line.

[00:29:39] Speaker 01:
The bottom line is that this court has said many times that you only need to look to and resort to extrinsic evidence when the claims, the specification, the prosecution history are equivocal.

[00:29:51] Speaker 01:
That's the word the court has chosen to use.

[00:29:53] Speaker 01:
And further guidance is necessary.

[00:29:56] Speaker 01:
That's found in Phillips as well.

[00:29:58] Speaker 01:
Well, here we have very, very clear claim language.

[00:30:01] Speaker 01:
Claim language of actual exclusion itself.

[00:30:04] Speaker 01:
The word exclusively is a chosen word of manifest exclusion in the claim language.

[00:30:09] Speaker 01:
Specification supports it perfectly.

[00:30:12] Speaker 01:
Specification provides that same plain and ordinary meaning.

[00:30:15] Speaker 01:
And that is corroborated by a very, very detailed prosecution history.

[00:30:19] Speaker 01:
So under those circumstances, Your Honor,

[00:30:21] Speaker 01:
There was no need to look to the extrinsic evidence, and it was perfectly consistent with court's decisions in the past when Phillips is applying without need to applying the extrinsic evidence.

[00:30:32] Speaker 04:
Is my understanding correct that the parties agree that under a district court's construction, the accused products would not be infringing?

[00:30:39] Speaker 01:
That is absolutely correct.

[00:30:40] Speaker 01:
You're out of the parties stipulated that under the district court's construction that there could not be infringement in this case, and that's the posture we find ourselves in.

[00:30:52] Speaker 01:
Subject, any further questions?

[00:30:54] Speaker 01:
Thank you so much for your time.

[00:30:55] Speaker 01:
Thank you.

[00:31:17] Speaker 00:
Mr. Gunter, we'll restore four minutes in rebuttal time.

[00:31:21] Speaker 00:
Can you hear me?

[00:31:22] Speaker 02:
Yes, thank you, Your Honor.

[00:31:25] Speaker 02:
OK.

[00:31:25] Speaker 02:
Well, I really just have two brief points I'd like to touch on that was just discussed.

[00:31:30] Speaker 02:
Your Honor, you asked if there was an outright prohibition and specification for additional mechanical support.

[00:31:36] Speaker 02:
The answer to that question is no.

[00:31:37] Speaker 02:
There is no outright prohibition.

[00:31:40] Speaker 02:
The only discussion there is certain disadvantages, but never rising to the level

[00:31:51] Speaker 02:
And then, Your Honor, you also asked about column 5, rights 26 to 32.

[00:31:57] Speaker 02:
And I would again say that the language used here, while it is talking about a disadvantage, it uses the words not necessary.

[00:32:05] Speaker 02:
And not necessary does not equate to must be excluded.

[00:32:09] Speaker 02:
Just because an adhesion is not necessary anymore does not mean that it must be excluded.

[00:32:16] Speaker 02:
And that's what the effect of the district courts

[00:32:27] Speaker 00:
You would argue that the language of the specification permits the exclusion of the mechanical adhesive layer, but it doesn't require that it be excluded.

[00:32:40] Speaker 00:
Is there any type of weight we should give to the language of specification that appears to suggest strongly that exclusion may be required?

[00:32:58] Speaker 02:
must exclude it.

[00:32:59] Speaker 02:
So there could be other reasons that you might want to have this other adhesion.

[00:33:06] Speaker 02:
For example, there may be thermal dissipation, or there may be other reasons that you might want it.

[00:33:11] Speaker 00:
But it's a long walk.

[00:33:13] Speaker 00:
Wouldn't that statement corroborate the disclaimer history that we're talking about?

[00:33:22] Speaker 02:
And so on that, I would like to take just one more chance

[00:33:29] Speaker 02:
explain that as to why I do not think that there's a disclaimer there.

[00:33:33] Speaker 02:
And so, what, again, at MX8... I think we have that, we may have that argument.

[00:33:38] Speaker 00:
I'm asking whether the language of the specification corroborates a disclaimer finding.

[00:33:47] Speaker 02:
I don't believe it does.

[00:33:48] Speaker 02:
I don't believe that it rises to the level of the clear and unabused disclaimer.

[00:33:52] Speaker 02:
It's just saying that it's no longer required, not that it must be excluded.

[00:33:57] Speaker 02:
And it even uses that language that says not necessary.

[00:34:02] Speaker 02:
In our view, we think that that does not mean it must be excluded.

[00:34:06] Speaker 04:
Council, does your proposed construction eliminate the alleged advantages of the invention?

[00:34:13] Speaker 02:
No, I don't believe so, your honor.

[00:34:15] Speaker 02:
You used to have to have a separate layer.

[00:34:17] Speaker 02:
That was a disadvantage in and of itself.

[00:34:20] Speaker 02:
Now you no longer need to have the other layer.

[00:34:23] Speaker 02:
You don't have to eliminate it.

[00:34:24] Speaker 02:
You just no longer need it.

[00:34:26] Speaker 02:
So you can, as I mentioned, you could still have other certain advantages.

[00:34:29] Speaker 02:
Maybe there's other reasons to have, maybe depending on what application you're using, there could be other reasons to have mechanical support, but you're not mandated to exclude it.

[00:34:43] Speaker 02:
And so just one more point on the file history.

[00:34:46] Speaker 02:
The vanilla reference where it has the two different types of connections.

[00:34:50] Speaker 02:
It has the indium for the electrical conductivity and the epoxy resin adhesive for the mechanical support.

[00:34:56] Speaker 02:
The examiner was really saying in the argument here, well, you can just change indium to solder.

[00:35:02] Speaker 02:
Therefore, it's mechanically stable to be able to solder.

[00:35:05] Speaker 02:
And that's the issue that the Pac-Noble was saying.

[00:35:08] Speaker 02:
There's no reason to believe that.

[00:35:10] Speaker 02:
it would, in fact, be mechanically stable.

[00:35:12] Speaker 02:
And you would no longer have to have this additional layer, meaning you'd still have to have the epoxy resin adhesive.

[00:35:19] Speaker 02:
You'd still have the same problem with the miller that's described at 848 to 849.

[00:35:24] Speaker 02:
And that appears, again, in the background specification of our patent suit.

[00:35:28] Speaker 02:
And unless there's any other questions, I see that I'm out of time.

[00:35:31] Speaker 02:
Thank you for your time.

[00:35:33] Speaker 02:
This is what I did.

[00:35:33] Speaker 00:
Thank you very much.

[00:35:36] Speaker 00:
We thank all counsel for the arguments.

[00:35:38] Speaker 00:
I think that's the extent of all our