[00:00:00] Speaker 04:
Our next case is appeal number 22-1350.

[00:00:04] Speaker 04:
It will be for photonics.

[00:00:10] Speaker 04:
Ms.

[00:00:10] Speaker 04:
Moulton, is that how I say your name?

[00:00:12] Speaker 04:
Ms.

[00:00:12] Speaker 04:
Moulton, you can proceed whenever you're ready.

[00:00:15] Speaker 00:
Thank you, Your Honors.

[00:00:16] Speaker 00:
May it please the court, Elizabeth Moulton, for Appellant Apple.

[00:00:19] Speaker 00:
I'll reserve three minutes for rebuttal.

[00:00:22] Speaker 00:
The board made separate errors in the two final written decisions covered in this appeal, and I'll start with the claim construction error.

[00:00:29] Speaker 00:
The board departed from the plain meaning of the term fused image with a point of view of the wide camera when it narrowed the term point of view to require both wide shape and wide position point of view.

[00:00:41] Speaker 00:
The specification at column five describes shape and position as two different aspects of point of view and then goes on to detail how a fused image can have combinations of shape and position point of view.

[00:00:55] Speaker 00:
And specifically at column five's line 13 to 15, the system output image can have the shape and position of either sub-camera image or the shape or position of a combination thereof.

[00:01:10] Speaker 00:
The specification never says that to qualify as having a wide point of view, an image must have both wide shape and wide position.

[00:01:19] Speaker 00:
Instead, it uses point of view to refer to either shape or position.

[00:01:24] Speaker 04:
the claims that where does the specification ever use the word point of view generically where it's clear that they're talking about just one of those two things because sometimes the specs says wide perspective point of view and sometimes it says wide position point of view but does it ever refer to point of view generically in the broader category

[00:01:51] Speaker 04:
And in that mean either one, just one of those two.

[00:01:55] Speaker 00:
So I would say in the sentence starting at line 13, that the system output image at column 5.

[00:02:02] Speaker 00:
Yes, column 5.

[00:02:04] Speaker 00:
Yeah, thank you.

[00:02:06] Speaker 00:
So it's appendix 66, column 5, lines 13 to 15.

[00:02:10] Speaker 00:
That sentence, that the system output image can have the shape and position of either sub-camera image or the shape or position of a combination thereof.

[00:02:20] Speaker 00:
What that is?

[00:02:21] Speaker 04:
That sentence doesn't use the word point of view.

[00:02:24] Speaker 04:
I meant expressly.

[00:02:25] Speaker 04:
where there's a sentence that uses the word point of view and then refers to just shape or just position.

[00:02:31] Speaker 04:
Is there any such thing?

[00:02:32] Speaker 04:
I don't think there is.

[00:02:33] Speaker 00:
So in our view, the sentence that covers line 25, infused images, it is possible to register tele-image pixels to a matching pixel set, in which case the output image will retain the wide point of view, wide fusion.

[00:02:51] Speaker 00:
In our view, that retains only wide position and not wide shape.

[00:02:56] Speaker 00:
Because in that sentence, it is just talking about registering from the tele image into the wide image, which is exactly what Pruelty teaches.

[00:03:06] Speaker 00:
Now, Core Photonics says that that sentence actually retains shape and position.

[00:03:11] Speaker 00:
And the way that they get there is by using

[00:03:14] Speaker 00:
figure five and the last steps in figure five regarding error correction to say that once you've performed the error correction steps that necessarily retains shape and position.

[00:03:27] Speaker 04:
Is the figure five the process for registering?

[00:03:31] Speaker 00:
Yes, that's right.

[00:03:33] Speaker 00:
And that's the figure that the board relied on to say that when you refer to wide point of view, the only way to qualify for having wide point of view is to have shape and position.

[00:03:46] Speaker 00:
That violates principles of claim differentiation because the final two steps in figure five that are required to retain wide shape are claimed in claims five and six that depend from claim one.

[00:04:00] Speaker 00:
So by requiring wide point of view to include shape and position, the board has essentially imported claims five and six into claim one.

[00:04:12] Speaker 02:
Is it important to your argument on claim construction that we're talking about fused images?

[00:04:18] Speaker 02:
And I think related to that, if it was not a fused image, it was just a single image, would position and perspective have to go together?

[00:04:30] Speaker 00:
Yes, that's exactly right, Judge Stark.

[00:04:32] Speaker 00:
So in the first sentence in this paragraph on column five, it talks about if you're looking at just a single camera image.

[00:04:40] Speaker 00:
So necessarily, if you take an image from one camera lens, that will have the shape and position of that lens.

[00:04:47] Speaker 00:
But when you get to a fused image, you're combining data from two different lenses.

[00:04:51] Speaker 00:
So you can have this mixed point of view, which is what this invention is trying to capture, is how you use the tele and the wide lens to enhance or change the image effects

[00:05:03] Speaker 00:
of an image captured from two different lenses.

[00:05:06] Speaker 00:
So Apple's construction covers a much broader aspect of this invention.

[00:05:11] Speaker 00:
It covers an image that has mixed points of view from a wide camera and a tele lens, instead of restricting the claims to just wide shape and wide position.

[00:05:22] Speaker 00:
And that's what the claims cover, as Your Honor pointed out.

[00:05:24] Speaker 00:
The claims are about looking at the fused image and what is the point of view reflected in that fused image.

[00:05:31] Speaker 04:
Which?

[00:05:34] Speaker 04:
Do you agree that the language, and again, looking at column five, that the language around lines 10 through 14 sounds definitional?

[00:05:46] Speaker 00:
So we don't agree with that.

[00:05:48] Speaker 00:
The standard for a definition is that it has to be clear and express an intent, clearly express the intent to define.

[00:05:55] Speaker 00:
That's the G lightning.

[00:05:56] Speaker 04:
But would you agree with me that if the paragraph didn't say anything else and this is all it said, that that might be more clear intent

[00:06:06] Speaker 00:
If the sentence ended after this is referred to as point of view, that would be clearer.

[00:06:12] Speaker 00:
However, the next sentence completely undoes that.

[00:06:15] Speaker 04:
I understand.

[00:06:17] Speaker 04:
It's a tough issue.

[00:06:19] Speaker 04:
I'll be honest with you.

[00:06:20] Speaker 04:
I think this is a really hard issue.

[00:06:21] Speaker 00:
And the board itself said that the specification is not a model of clarity, right, at Appendix 11, so that we can't find a definition in here.

[00:06:30] Speaker 00:
It's not clear.

[00:06:31] Speaker 00:
It doesn't meet the standard for redefining.

[00:06:32] Speaker 02:
If it is definitional, does that help you or hurt you?

[00:06:36] Speaker 02:
This, I would think, is singular.

[00:06:39] Speaker 02:
So does that undermine your position, or does that help your position?

[00:06:46] Speaker 02:
And by this, I'm referring to the this in the specification.

[00:06:49] Speaker 00:
Right.

[00:06:50] Speaker 00:
Honestly, I would say it's somewhat neutral.

[00:06:52] Speaker 00:
I don't agree that it's lexicography.

[00:06:55] Speaker 00:
But because at best, this definition is talking about point of view from a single sub-camera and is not talking about point of view of a fused image, it doesn't provide that much information on how to interpret the claim language, which talks about the fused image.

[00:07:14] Speaker 04:
One other question, which is,

[00:07:16] Speaker 04:
I understand that core photonics is taking the position that wide position point of view and wide perspective point of view are not subsets of point of view.

[00:07:27] Speaker 04:
How do you respond to that and why?

[00:07:30] Speaker 00:
So I think you can think about it in a few different ways.

[00:07:33] Speaker 00:
They could be subsets of point of view.

[00:07:35] Speaker 00:
You could think about them as ways to qualify as

[00:07:38] Speaker 00:
calling something with a wide point of view.

[00:07:40] Speaker 00:
So you could say, this image has a wide point of view because it has wide perspective.

[00:07:45] Speaker 00:
Or as an analogy, I could say, I have Scottish heritage because my father is Scottish.

[00:07:52] Speaker 00:
You can't say, I can't claim Scottish heritage because only one of my parents is Scottish.

[00:07:57] Speaker 00:
So those are separate and independent ways to qualify as having wide point of view.

[00:08:03] Speaker 00:
So when the claims use wide point of view without specifying one or the other, it gives you the option of having both.

[00:08:11] Speaker 00:
And that's reflected in column five when it talks about images that have different combinations of wide and tele point of view.

[00:08:20] Speaker 00:
And in figure five, when it goes through the steps of creating a fused image, and if you don't perform the final two error correction steps, you end up with an image that has only wide position and not wide shape.

[00:08:34] Speaker 02:
If we were to agree with you on the claim construction, we would have to remand to the board to apply it and to reach secondary considerations, wouldn't we?

[00:08:42] Speaker 00:
So we think it would be appropriate to reverse because if you accept our claim construction, there's no dispute that the first three grand factors are fully in favor of Apple.

[00:08:53] Speaker 00:
Core Photonics never argued there was no motivation.

[00:08:56] Speaker 02:
Even if you were right about that, there is a fourth factor.

[00:08:59] Speaker 02:
And all you say is usually the fourth factor doesn't outweigh the other three.

[00:09:03] Speaker 02:
But we can't just decide that ourselves, can we?

[00:09:06] Speaker 00:
You could decide that Apple's prima facie case of obviousness was so strong that it wasn't outweighed by the fourth grand factor.

[00:09:13] Speaker 00:
But if you're not comfortable with that, a remand would be appropriate.

[00:09:18] Speaker 00:
And then the board's, the only question for the board would be the secondary considerations question.

[00:09:27] Speaker 01:
Ms.

[00:09:28] Speaker 01:
Milton, you referred to column five.

[00:09:30] Speaker 01:
I'm curious as to what the last sentence in this paragraph we've been focused on means.

[00:09:38] Speaker 01:
The sentence that says, it is also possible to perform the registration after either sub-camera image is shifted, in which case the output image will retain the respective wide or tele-perspective point of view.

[00:09:55] Speaker 01:
What does that sentence mean and how does it relate to what we've been trying to sort out here?

[00:10:03] Speaker 00:
Sure, so this is talking about if you first shift one of the sub-images so that you're getting closer to a matched position point of view, and then you then register pixels, in Apple's view that will retain both shape and position point of view.

[00:10:21] Speaker 00:
So you'll be looking at an image that's much closer to the original wide image that's just been enhanced with some of the tele-pixels.

[00:10:31] Speaker 00:
Core Photonics says that this last example actually only retains wide position and does not retain wide perspective.

[00:10:43] Speaker 00:
They say that that's because you first shift and then cut and paste essentially from the tele image into the wide image.

[00:10:50] Speaker 00:
And so when you're doing that, you're taking the tele image pixels without any error correction.

[00:10:56] Speaker 00:
So then you would

[00:10:57] Speaker 00:
import more telepixels into this fused image.

[00:11:01] Speaker 00:
But either way, the way that both of us are reading this paragraph, Apple says, sorry, I'm now talking about the whole paragraph.

[00:11:12] Speaker 00:
I think that the first example in this paragraph retains both shape and position.

[00:11:17] Speaker 00:
Core Photonics thinks the second example in the paragraph retains shape and position.

[00:11:21] Speaker 00:
So either way, we agree that some of the examples in column five, in this paragraph in column five,

[00:11:27] Speaker 00:
have mixed points of view, which supports.

[00:11:30] Speaker 04:
So in other words, some of the examples in this program we're talking about, some of them have just one of the two, either perspective or position, point of view.

[00:11:43] Speaker 00:
Exactly.

[00:11:44] Speaker 00:
For the wide camera.

[00:11:45] Speaker 00:
Yeah, exactly.

[00:11:45] Speaker 00:
Which supports Apple's construction, which would then cover more embodiments from the specification.

[00:11:50] Speaker 04:
Do you want to talk about your second issue, which is the, I think you allege, an APA violation?

[00:11:57] Speaker 00:
That's right.

[00:11:58] Speaker 00:
So in this second IPR, the board's finding that there was no reasonable expectation of success in scaling Ogata's lens to fit into Piroliski's camera was both a new argument and is not supported by substantial evidence.

[00:12:13] Speaker 00:
So the board's decision relied on what it called two errors in Dr. Sazian's.

[00:12:19] Speaker 04:
You are entering bottled time, unfortunately.

[00:12:22] Speaker 04:
I just want to let you know.

[00:12:23] Speaker 04:
I have asked you a question, so I'm willing to give you a little more time on this.

[00:12:27] Speaker 04:
But I would like to ask you specific questions on this, which is we're very familiar with the facts, right?

[00:12:34] Speaker 04:
So your position, I think, is that the board couldn't rely on this as a basis for reasonable success, reasonable expectation of success.

[00:12:44] Speaker 04:
for maybe two reasons.

[00:12:46] Speaker 04:
One is because no one argued it.

[00:12:47] Speaker 04:
And maybe the second one is because reasonable expectation of success doesn't require anything besides what's in the claim.

[00:12:56] Speaker 04:
And the change of the ABBE number, if it impacted anything, wasn't anything that had anything that was required by the claim.

[00:13:07] Speaker 00:
I'll just restate it how I would say it.

[00:13:10] Speaker 00:
So there was an APA violation in elevating the ABBA number mistake into a case dispositive issue when no one argued that.

[00:13:18] Speaker 00:
And then separately there's a substantial evidence problem based on the a spherical coefficients, which the board called that an error when it was not an error.

[00:13:28] Speaker 00:
And then based on the ABBA number, the board said entering the wrong ABBA number meant that

[00:13:35] Speaker 00:
The ZMAX analysis didn't support Dr. Sazian's conclusion.

[00:13:42] Speaker 04:
That is unsupported by substantial evidence because neither expert... Why can't the board say, you made an error, therefore your entire analysis is not credible, not reliable?

[00:13:54] Speaker 00:
So the board never made any kind of credibility finding.

[00:13:57] Speaker 00:
There was no dispute that you should use the ZMAX analysis and then look at the outputs of that analysis.

[00:14:03] Speaker 02:
The board did say it was unreliable.

[00:14:06] Speaker 00:
They did say it was unreliable.

[00:14:06] Speaker 02:
And they pointed to the error that had been pointed out to you by the patent owner as the basis for that unreliability finding, right?

[00:14:15] Speaker 00:
That's right.

[00:14:16] Speaker 00:
But there were a few steps missing in that.

[00:14:18] Speaker 00:
So no one ever said that the ABA number error had any impact on the school.

[00:14:23] Speaker 02:
But why is that necessary?

[00:14:25] Speaker 02:
I have the same question as Judge Stoll.

[00:14:28] Speaker 02:
The board's a fact funder.

[00:14:30] Speaker 02:
An error had been pointed out to them.

[00:14:32] Speaker 02:
Aren't they free to say, even if no one asked them to?

[00:14:36] Speaker 02:
We are so troubled by this error that it makes all of the analysis you're relying on unreliable.

[00:14:44] Speaker 00:
So that conclusion that it made all of the analysis unreliable is not supported by substantial evidence because Dr. Moore, Core Photonics' expert, said this ABA number error affects certain parameters, and it makes those parameters not accurate.

[00:15:00] Speaker 00:
That said, Appendix 932.

[00:15:02] Speaker 02:
But I guess, Monique, I think it's the same question.

[00:15:08] Speaker 02:
Is a fact finder not permitted to be essentially colloquially scared off from relying at all on an expert once an error in that expert's analysis is pointed out, even if it's maybe not, in your view, a big error?

[00:15:21] Speaker 02:
Maybe it's not even a big error in your friend on the other side's view.

[00:15:25] Speaker 02:
But they're the fact finder.

[00:15:27] Speaker 02:
Aren't they free to decide, this is such a big error, I'm staying away from this expert?

[00:15:34] Speaker 00:
If they explained or if they actually found this is a big error and this actually matters to the scalability analysis, maybe, but no one ever said, either the experts in the arguments to the board, that this was an error that would actually affect the scalability analysis.

[00:15:56] Speaker 04:
Your view is, just to make sure I understand, I think it was a reasonable expectation of success, because that's what the board said.

[00:16:02] Speaker 04:
They couldn't rely on Dr. Sazian's theory for reasonable expectation of success.

[00:16:08] Speaker 04:
That wasn't enough.

[00:16:09] Speaker 04:
It didn't satisfy the burden.

[00:16:11] Speaker 04:
And reasonable expectation of success is a particular inquiry that requires that you would reasonably expect success in combining the two, making the scalability change.

[00:16:24] Speaker 04:
Right.

[00:16:25] Speaker 04:
And so I think what your point is, is that the error that was made is not related to something that is recited in the claim or didn't impact anything recited in the claim.

[00:16:36] Speaker 00:
That's correct.

[00:16:36] Speaker 00:
Yes.

[00:16:37] Speaker 00:
Right.

[00:16:38] Speaker 00:
So the error went to these parameters, the field curvature and OPD fan plots, but it had nothing to do with the parameters that the experts were actually debating, whether that would make for a usable lens or not.

[00:16:52] Speaker 00:
So those were parameters.

[00:16:53] Speaker 04:
What are those parameters?

[00:16:54] Speaker 04:
I mean, there is no evidence whatsoever in the record.

[00:16:57] Speaker 04:
There's three things you've mentioned, I think,

[00:16:59] Speaker 04:
Maybe field of curvature, distortion, and optical path difference.

[00:17:05] Speaker 04:
But what are those things?

[00:17:06] Speaker 04:
Do they impact the manufacturability or the scalability of the lens?

[00:17:11] Speaker 00:
They do not.

[00:17:12] Speaker 00:
So the parameters that actually mattered were the F number field of view and manufacturing tolerances.

[00:17:20] Speaker 00:
That's at appendix 4803.

[00:17:22] Speaker 00:
So those were the parameters that Dr. Moore

[00:17:26] Speaker 04:
and Dr. Sazian were actually debating whether... I understand, but can I go back to my first question?

[00:17:31] Speaker 04:
I apologize.

[00:17:32] Speaker 04:
I think I asked you too.

[00:17:33] Speaker 04:
What is field of curvature?

[00:17:35] Speaker 04:
What is distortion?

[00:17:37] Speaker 04:
What is optical path difference?

[00:17:38] Speaker 04:
Do you know?

[00:17:39] Speaker 00:
So those parameters are about the physical shape of the lens, and then the ABA number is about the material and how light refracts through that material.

[00:17:49] Speaker 00:
So when you enter different ABA numbers, and then you

[00:17:54] Speaker 00:
analyze these field of curvature and distortion plots, those plots will look different depending on which material you've made the lens out of.

[00:18:03] Speaker 04:
Okay, so when I see distortion, that's not distortion of the image.

[00:18:07] Speaker 00:
Well, I think it would be because it's distortion of how the light passes through the lens and then hits the sensor.

[00:18:14] Speaker 00:
But in all of these lenses, there's a range of acceptable outcomes, right?

[00:18:19] Speaker 00:
So you can say, I want

[00:18:22] Speaker 00:
you can say that you want your outputs of the ZMAX software will fall within a range.

[00:18:27] Speaker 00:
And as long as they're within a certain range, it's still an acceptable lens.

[00:18:31] Speaker 00:
And so that's what Dr. Sazian and Dr. Moore were debating, is whether the outputs of the ZMAX analysis would be acceptable or not to a person of ordinary skill.

[00:18:41] Speaker 04:
OK.

[00:18:42] Speaker 04:
I think we're going to have enough time.

[00:18:44] Speaker 04:
Thank you for all your answers.

[00:18:46] Speaker 04:
And let's hear from Mr. Fenster now on these issues.

[00:18:52] Speaker 03:
Good morning, Your Honors.

[00:18:52] Speaker 03:
May it please the Court and my friends here at Pellee.

[00:18:56] Speaker 03:
If you would like to stay with the last issue, I'm happy to.

[00:18:59] Speaker 03:
I do want to get to the claim construction.

[00:19:01] Speaker 03:
But I can give you substantial evidence and answer your question about distortion.

[00:19:07] Speaker 03:
directly so first the board's decision that reasonable expectation of success was not supported because of the error is supported by substantial evidence specifically they cite to dr. Moore's

[00:19:26] Speaker 03:
They cite to Dr. Moore's analysis at appendix 4798.

[00:19:31] Speaker 03:
And where they cite to it is at appendix 39.

[00:19:34] Speaker 03:
They say, because of this error, Dr. Saucion's field curvature, distortion, and OPD.

[00:19:39] Speaker 03:
I'm sorry.

[00:19:39] Speaker 04:
What page are you on?

[00:19:40] Speaker 03:
I apologize.

[00:19:41] Speaker 03:
I apologize.

[00:19:41] Speaker 04:
No, no.

[00:19:42] Speaker 03:
I missed it.

[00:19:44] Speaker 03:
This is appendix 39.

[00:19:48] Speaker ?:
Thank you.

[00:19:48] Speaker 03:
OK.

[00:19:48] Speaker 03:
Because of this error, Dr. Saucion's field curvature, distortion, and OPD.

[00:19:55] Speaker 03:
fan plots do not accurately reflect the performance of a scaled version of Ogata's lens.

[00:20:01] Speaker 03:
And they go on to say, citing Dr. Moore again, that a significant change in the index of refraction or the ABE number can change a highly performing lens design into an unacceptable design.

[00:20:15] Speaker 04:
Was Dr. Moore there in that paragraph that cited paragraph 88?

[00:20:21] Speaker 04:
Was he actually talking about

[00:20:24] Speaker 04:
uh, specifically, uh, the expert's, uh, mistake, Dr. Sazian's mistake with respect to the ABE number, or was that more generic than stated?

[00:20:34] Speaker 03:
It was, it wasn't generic.

[00:20:36] Speaker 03:
It wasn't specifically about that, that point in paragraph 88.

[00:20:40] Speaker 03:
So in paragraph, um,

[00:20:43] Speaker 03:
The first citation to Dr. Moore is at appendix 4798 at paragraph 62.

[00:20:49] Speaker 03:
That one is specifically to the ABE number.

[00:20:53] Speaker 03:
Paragraph 88 is talking about scaling a different lens, Kalimura.

[00:20:59] Speaker 03:
And he talks about the effect of the ABE number and refraction on the lens performance.

[00:21:06] Speaker 03:
And this goes directly to reasonable expectation of success.

[00:21:09] Speaker 04:
So do you agree that reasonable expectation of success

[00:21:13] Speaker 04:
is that our case law says that you have to have a likelihood of success in combining the references.

[00:21:22] Speaker 04:
And it's going to be the claimed invention.

[00:21:25] Speaker 04:
There's a reasonable expectation of success that the invention will be combined and that it will operate

[00:21:32] Speaker 04:
as intended ones, not that they will operate as intended ones combined.

[00:21:37] Speaker 03:
Sure.

[00:21:37] Speaker 03:
So the reasonable expectation of success, the reason this goes to reasonable expectation of success is when you put these lenses together, the OPD fan plots and the distortion, what happens with the fan plots is as the light rays come through the various lenses, they get bent.

[00:21:53] Speaker 03:
And if they converge on the sensor in one point, it's a successful lens.

[00:21:59] Speaker 03:
If they scatter the light, then it's a blurry image.

[00:22:02] Speaker 03:
And that's the distortion.

[00:22:03] Speaker 03:
And so the fan plots, as my friend acknowledged, really do determine whether or not it's a successful lens or not.

[00:22:13] Speaker 04:
The argument wasn't presented to the board at all.

[00:22:15] Speaker 04:
There was no evidence at all.

[00:22:17] Speaker 04:
In fact, you guys didn't rely at all

[00:22:19] Speaker 04:
on the abbey number of discrepancy in order to bolster your reasonable expectation of success argument which is based on an inability to manufacture.

[00:22:30] Speaker 03:
So we pointed out the error in the analysis.

[00:22:34] Speaker 03:
We pointed out that it affects whether or not that it renders unreliable his entire lens software design.

[00:22:44] Speaker 03:
Where did you do that, by the way?

[00:22:45] Speaker 03:
This is at POR 31.

[00:22:47] Speaker 03:
Is it in our appendix?

[00:22:49] Speaker 03:
It is.

[00:22:50] Speaker 03:
And this is cited.

[00:23:02] Speaker 03:
Okay, so at appendix 39, it cites to RPOR 31, which is at appendix 932.

[00:23:10] Speaker 04:
At 932, I don't see where you say that.

[00:23:14] Speaker 04:
I'm looking at appendix page 932.

[00:23:20] Speaker 04:
My understanding is that this is just from like a background section from your POR.

[00:23:27] Speaker 03:
The last sentence of that, Your Honor, is because of this error, the field curvature distortion and fan plots do not accurately reflect the performance of the scaled version.

[00:23:37] Speaker 04:
That doesn't say do not accurately reflect performance and therefore there's no reasonable expectation of success.

[00:23:43] Speaker 04:
It just says, do not accurately reflect.

[00:23:46] Speaker 02:
Nor does it say their whole expert analysis is unreliable.

[00:23:51] Speaker 02:
You never make that argument.

[00:23:55] Speaker 03:
We didn't specifically make that argument.

[00:23:58] Speaker 03:
That's correct.

[00:23:59] Speaker 03:
We said that that renders his analysis that

[00:24:03] Speaker 03:
you can't rely on, that his fan plots are no longer accurately depict.

[00:24:10] Speaker 04:
And the question here is whether there's a change.

[00:24:14] Speaker 04:
But you didn't say other things are no longer accurate.

[00:24:18] Speaker 04:
the field curvature, distortion, and fan plots.

[00:24:21] Speaker 03:
Well, those are all how well the lens performs and whether one of skill and the art would understand that you can scale.

[00:24:27] Speaker 03:
The question here was whether you can scale a 35 millimeter lens down to a miniature by a factor of six.

[00:24:32] Speaker 03:
And there was a lot of argument in the record that we put in Dr. Moore's declaration and in our POR that you can't scale at that.

[00:24:42] Speaker 03:
that much with a reasonable expectation of success.

[00:24:47] Speaker 04:
Sometimes we have claims that come before us in this reasonable expectation issue, like say in a pharmaceutical case, it would say for treating cancer or something like that.

[00:24:56] Speaker 04:
I don't see anything in these claims that have that kind of end goal in them.

[00:25:01] Speaker 04:
Instead, it's just a product, a dual aperture digital camera for imaging an object or scene.

[00:25:08] Speaker 04:
And so what is

[00:25:10] Speaker 04:
That's my problem with the reasonable expectation of success is that I don't think it's very, I think what's required to show in this case, and you can tell me why I'm wrong, what I think is required to show is simply that if you modify, that you could scale and you could result, the result would be a camera that satisfies the claim limitations, but there's no

[00:25:34] Speaker 04:
requirement that it be a great operating, that it be an ultimately very good operating camera.

[00:25:39] Speaker 03:
So the question is whether one would take this big lens and put it into Perulsky.

[00:25:47] Speaker 03:
Out of all the lenses out there in the world, why would one of skill in the art be motivated to take this big lens and scale it down and have a reasonable expectation that it would perform well?

[00:25:56] Speaker 04:
A reasonable expectation being different from motivation, yes.

[00:26:00] Speaker 03:
Yes, that's right.

[00:26:01] Speaker 03:
And so the point here was that there was substantial evidence to support the board's factual determination that they didn't meet their burden of showing that this scaled down version of Ogata would perform as expected with a reasonable expectation of success.

[00:26:19] Speaker 04:
But what is it that you think is expected?

[00:26:21] Speaker 04:
What is the reasonable expectation of what?

[00:26:23] Speaker 04:
Fill in the blank for me.

[00:26:25] Speaker 04:
Like I said, there's an example for treating cancer.

[00:26:27] Speaker 04:
That's pretty clear.

[00:26:28] Speaker 04:
There should be a reasonable expectation that the combination will treat cancer.

[00:26:33] Speaker 04:
Here, what is it there's supposed to be a reasonable expectation of?

[00:26:36] Speaker 04:
And you're saying that it would scale it down.

[00:26:37] Speaker 03:
That it would take a proper image.

[00:26:39] Speaker 03:
It would take a proper image.

[00:26:41] Speaker 03:
One of skill in the art building a lens is not just putting a bunch of pieces of glass together and saying, yeah, I can do this, and it meets the requirements, but I can't see you through it.

[00:26:52] Speaker 03:
It has to be a well-performing lens in order to provide motivation for one of skill in the art to want to combine them in the first place.

[00:27:02] Speaker 03:
I'd like to leave it at there is substantial evidence for that and move on to the plane construction, unless you have further questions on that.

[00:27:09] Speaker 03:
that okay so on the claim construction issue this really is so two points here one it's totally consistent with this intrinsic record and my friends have asserted without evidence that the way the specification defines point of view generally point of view as opposed to perspective or position is inconsistent with the plain meaning and

[00:27:35] Speaker 03:
It's not, and there's no evidence that it is.

[00:27:38] Speaker 03:
So the plain meaning of from one camera versus another, when I view you from this vantage point, you'll have a certain shape and position.

[00:27:47] Speaker 03:
If I view you from this vantage point, you'll have another shape and position.

[00:27:51] Speaker 03:
That's what the paragraph says.

[00:27:54] Speaker 03:
That is the plain meaning of point of view.

[00:27:58] Speaker 01:
Mr. Fenster, in the claim subparagraph E, the very last part of it, talks about the camera controller further operative to output the fused image with a point of view of the wide camera.

[00:28:15] Speaker 01:
Yes.

[00:28:16] Speaker 01:
With a point of view of the wide camera.

[00:28:19] Speaker 01:
Okay.

[00:28:19] Speaker 03:
What does that mean?

[00:28:21] Speaker 03:
So first of all,

[00:28:22] Speaker 03:
A versus B, this is a new argument that was never made below.

[00:28:26] Speaker 03:
Second, they're reading too much into A. A is the first, it's the article that you use in patent language when you introduce a concept for the first time, just like up above where it says, a field of view

[00:28:38] Speaker 03:
FOV wide or a field of view tele here this is the first time point of view is being introduced so that's why it's it's saying a point of view but it is consistent the patent is absolutely consistent that every time it talks about point of view generally it is talking about both shape and position namely the vantage point from the camera it never ever

[00:29:04] Speaker 03:
to your question, Judge Stoll, it never uses point of view generally to refer only to perspective point of view or only to position point of view.

[00:29:14] Speaker 03:
And the way they're trying to read this claim is by saying that instead of saying a wide point of view,

[00:29:23] Speaker 03:
consistent with the specification.

[00:29:24] Speaker 03:
They're trying to read in either one either or both of the wide perspective point of view or wide position point of view.

[00:29:34] Speaker 04:
Can I ask you a question?

[00:29:35] Speaker 04:
This is an analogy, okay?

[00:29:38] Speaker 04:
So let's say that my workout involves 30 minutes of cardio followed by 20 minutes weights.

[00:29:47] Speaker 04:
And I say that's what my workout is.

[00:29:49] Speaker 04:
But what if I do 30 minutes of cardio?

[00:29:52] Speaker 04:
Did I work out?

[00:29:53] Speaker 04:
Did I do a workout?

[00:29:55] Speaker 03:
So if you said, if you defined, if the general plain meaning of a workout included both cardio and weights, and you said if you do cardio, I do a cardio workout.

[00:30:07] Speaker 03:
And if I do weights, I do a weight workout.

[00:30:09] Speaker 03:
But if I do a workout, I do both, which is basically what the specification says.

[00:30:15] Speaker 03:
Then your question would be.

[00:30:17] Speaker 04:
And that's a little contrary to ordinary English language, isn't it?

[00:30:20] Speaker 04:
I mean, I think it really goes to whether wide perspective point of view and wide position point of view are actually subsets of point of view.

[00:30:28] Speaker 03:
They're not subsets.

[00:30:30] Speaker 03:
They're different concepts.

[00:30:31] Speaker 03:
So what it says is, and the specification uses point of view consistently.

[00:30:37] Speaker 03:
There are other examples that column four

[00:30:43] Speaker 03:
Lines 51 to 52, where it talks about fusing from an object or scene from a particular point of view.

[00:30:51] Speaker 03:
And then at column 10, lines 37 to 42, it talks about the dual aperture camera switches between sub-camera four points of view.

[00:31:03] Speaker 03:
So every time it talks about point of view generally, it's talking about the vantage point of the camera, which has both shape and position.

[00:31:15] Speaker 03:
I may have strayed from your question, Judge Stoll.

[00:31:18] Speaker 03:
But the point here is that.

[00:31:21] Speaker 04:
No, you're saying why you think they're not subsets.

[00:31:24] Speaker 03:
That's right.

[00:31:25] Speaker 03:
Because the point of view refers to both.

[00:31:28] Speaker 03:
And then it says, in the context of fusing, I can separate these two things.

[00:31:33] Speaker 03:
And when I do, I'm going to be specific and talk about the wide perspective point of view or the wide position point of view.

[00:31:40] Speaker 02:
But doesn't the right construction have to capture those latter embodiments?

[00:31:45] Speaker 02:
Where where you take one you take perspective from one image and you take position from the other image am I?

[00:31:53] Speaker 03:
Does this claim have to encompass all embodiments?

[00:31:57] Speaker 02:
Is that your question doesn't the claim construction?

[00:32:00] Speaker 02:
That is proper in this case have to capture all of those embodiments and

[00:32:10] Speaker 03:
I think that the claim construction has to be consistent, properly construed.

[00:32:14] Speaker 03:
It is true that this claim, claim one, will not capture all embodiments.

[00:32:20] Speaker 03:
It's limited to those with a wide point of view and doesn't, for example.

[00:32:26] Speaker 03:
So column five claims wide fusion and tele fusion.

[00:32:30] Speaker 03:
Wide fusion where you have a wide point of view, both shape and position.

[00:32:33] Speaker 03:
Tele fusion where you have both tele, right?

[00:32:37] Speaker 03:
Claim one doesn't claim tele at all.

[00:32:40] Speaker 02:
But my understanding was under your construction, which is what the board agreed to, claim one also won't capture all of the wide point of view.

[00:32:53] Speaker 03:
It won't cover the combination.

[00:32:56] Speaker 03:
And that's totally consistent.

[00:32:58] Speaker 02:
Right.

[00:32:58] Speaker 02:
On what basis would we exclude that embodiment from claim one?

[00:33:02] Speaker 03:
Sure just the plain so the plain meaning of POV and let me just take you through one particular section so at column five it starts off the first two sentences define point of view as shape and position then it goes through and talks about the combination you can have combinations then and this gets to

[00:33:26] Speaker 03:
the wide fusion definition.

[00:33:28] Speaker 03:
So infused images, this is at line 24, column five, line 24.

[00:33:33] Speaker 03:
It says infused images, it's possible to register tele-image pixels to a matching pixel set within the wide, in which case the output will retain the wide point of view, and they call this wide fusion.

[00:33:45] Speaker 03:
Now, if you go to paragraph 1E of claim one, that Judge Stoll was asking about earlier,

[00:33:54] Speaker 03:
That's exactly what this is talking about.

[00:33:57] Speaker 03:
This is at column 13, lines 45 to 50.

[00:34:04] Speaker 03:
So it says, further operative to output a fused image with a point of view of the wide camera by mapping tele-image pixels to matching pixels within the wide image.

[00:34:17] Speaker 03:
So this claim is drawn to the specific embodiment of wide fusion.

[00:34:24] Speaker 03:
where you retain the wide point of view, both shape and position, by matching the pixels from the tele, or by registering telepixels into and only using those that match the wide image.

[00:34:40] Speaker 04:
How do you read the last sentence of this paragraph, at lines 30 through 34?

[00:34:46] Speaker 03:
Sure, at column five?

[00:34:48] Speaker 03:
Yeah.

[00:34:50] Speaker 03:
Okay.

[00:34:51] Speaker 04:
Is that fused?

[00:34:52] Speaker 04:
do you have something like wide position point of view with tele perspective?

[00:35:02] Speaker 03:
This is referring to a combination so it talks after the shift then there's a registration and when you have the registration that's what gives you either the wider tele perspective so this is saying that

[00:35:14] Speaker 03:
You could have either, depending on whether it's before or after the shift, either position.

[00:35:20] Speaker 03:
And depending on which way you register it, it could have either the tele or the wide perspective.

[00:35:25] Speaker 03:
But this is the combination kind of discussion.

[00:35:30] Speaker 04:
Can I ask you why, then, if this is a combination?

[00:35:32] Speaker 04:
Meaning that you could have one, you just have, say, a wide position point of view.

[00:35:41] Speaker 04:
Why?

[00:35:42] Speaker 04:
I mean, this sentence here.

[00:35:44] Speaker 04:
uses the phrase, well, it says perspective.

[00:35:48] Speaker 03:
Perspective, exactly.

[00:35:49] Speaker 03:
That's exactly the point.

[00:35:50] Speaker 03:
And it's consistent in doing so.

[00:35:51] Speaker 03:
The only time perspective or position point of view appear is in that paragraph of column five.

[00:35:58] Speaker 03:
Nowhere does position or perspective point of view appear elsewhere in the entire pattern of search data.

[00:36:06] Speaker 02:
I'm a little confused on whether you're arguing lexicography or not.

[00:36:10] Speaker 02:
I think I heard you to say today this is just the plain and ordinary meaning.

[00:36:14] Speaker 03:
So the answer is I absolutely believe that the first two sentences define it.

[00:36:20] Speaker 03:
My point is that it's not defining away from the plain meaning.

[00:36:24] Speaker 03:
It's consistent with the plain meaning.

[00:36:26] Speaker 03:
So I do think that it is an expressed definition.

[00:36:29] Speaker 03:
I don't think that it's inconsistent with the plain meaning.

[00:36:31] Speaker 02:
Did you argue to the board that this was lexicography?

[00:36:35] Speaker 03:
We certainly did.

[00:36:36] Speaker 03:
So, Your Honors, we did that in the POR.

[00:36:39] Speaker 03:
So this is that Appendix 287.

[00:36:43] Speaker 03:
And I didn't use the word lexicography.

[00:36:46] Speaker 03:
I said define or expressly define.

[00:36:49] Speaker 03:
So to be fair.

[00:36:51] Speaker 03:
So at appendix 287 in the POR, we said that 479's patent discussion of POV defines it with respect to shapes and positions.

[00:37:01] Speaker 03:
In the CERB reply, at appendix 413 and 414, we said the 479 patent defines point of view.

[00:37:09] Speaker 03:
And then in the transcript at the oral hearing before the board, I said it three times.

[00:37:15] Speaker 03:
At appendix 600, I argued express definition.

[00:37:18] Speaker 03:
And the appendix at 623 and 625, I argued express definition.

[00:37:24] Speaker 02:
But again, it's a definition that's not inconsistent with the plain and ordinary meaning.

[00:37:28] Speaker 02:
That's right.

[00:37:29] Speaker 03:
There's no evidence from Apple or anyone else that the plain meaning is different.

[00:37:34] Speaker 04:
Ms.

[00:37:34] Speaker 04:
Moulton said one of the things she said is that these sentences

[00:37:39] Speaker 04:
really referring to the point of view of the single camera at this point, so it's not really helpful for thinking about fused images.

[00:37:49] Speaker 04:
What's your response to that?

[00:37:50] Speaker 03:
My response is that point of view doesn't have different definitions

[00:37:56] Speaker 03:
when it's talking to a camera point of view or infused, it has to be used consistently throughout, and it is in the specification.

[00:38:03] Speaker 03:
So it defines it at the first two sentences of column five.

[00:38:06] Speaker 03:
It uses it consistently.

[00:38:08] Speaker 03:
And it uses it consistently with infused images.

[00:38:16] Speaker 03:
Where you can separate the two aspects, it uses specific language, the perspective POV and position POV.

[00:38:24] Speaker 03:
Thank you.

[00:38:31] Speaker 04:
restore two minutes of your rebuttal time.

[00:38:37] Speaker 00:
Thank you.

[00:38:38] Speaker 00:
So on the claim construction issue

[00:38:41] Speaker 00:
I think there's actually quite a bit of agreement that point of view refers to shape and position, that those are two different aspects of point of view, and nothing in the claims requires both.

[00:38:53] Speaker 00:
Council said that position and perspective are not in the claims.

[00:38:57] Speaker 00:
They're only in that passage in column five.

[00:39:00] Speaker 00:
So because the claims don't limit themselves to either shape or position, point of view should be understood to cover either or both aspects of shape and position.

[00:39:12] Speaker 00:
On the 906 IPR, on the reasonable expectation of success, I just remind the court that the board's conclusion on reasonable expectation of success was infected by two errors, both the error about the ABBA number and the board's finding that this aspherical coefficient issue

[00:39:31] Speaker 00:
that that was an error in Dr. Cezion's analysis when that was not an error at all.

[00:39:36] Speaker 00:
So that alone requires a remand for the board to determine whether it would reach the same conclusion on reasonable expectation of success without those non-errors.

[00:39:45] Speaker 00:
Thank you.

[00:39:46] Speaker 04:
Thank you.