[00:00:00] Speaker 03:
And we have one last case today, and it's appeal number 22-1455, Corp of Tonics versus Apple.

[00:00:11] Speaker 03:
It has a number of the same issues in it as the case we just heard.

[00:00:17] Speaker 03:
And we do not want to read your argument on those issues.

[00:00:21] Speaker 03:
So please just refrain, limit your arguments to those new issues that are in this last appeal.

[00:00:28] Speaker 03:
Thank you.

[00:00:29] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:00:32] Speaker 00:
Once again, Brian Liddell for Court for Connix.

[00:00:35] Speaker 00:
I think with that direction, I'll keep this pretty brief, because the only unique issue to this second appeal is really the last issue in the briefing about whether the Togo reference actually is properly relied on to teach the effective resolution as a no-switching criteria that the claims require.

[00:00:59] Speaker 00:
We submit there's a couple of different errors that the board made here.

[00:01:05] Speaker 00:
The first is a claim construction error that basically the board ignored pretty clear definitional language in the specification that required that the

[00:01:16] Speaker 00:
The effective resolution was that those references in the claims refer to an effective resolution score, not some hazy or uncertain concept of maybe it's fuzzy in some way.

[00:01:29] Speaker 00:
And that's basically something that you can find both by seeing how the specification describes this, including

[00:01:37] Speaker 00:
listing that definition in a section called definitions and specification.

[00:01:41] Speaker 00:
But also, when you look at the claim language, the claims specifically contemplate that you make these switches based on whether one is lower than the other, whether the effective resolution of one is lower than the effective resolution of the other.

[00:01:55] Speaker 01:
Isn't the definition a definition of effective resolution score and not just effective resolution?

[00:02:03] Speaker 00:
The language in that column in the specification in column six does refer to effective resolution score.

[00:02:09] Speaker 01:
That's what it's defining there, isn't it?

[00:02:11] Speaker 00:
It is.

[00:02:12] Speaker 00:
And everywhere that the patent talks about using effective resolution, that's what it's talking about using.

[00:02:17] Speaker 01:
Well, you say that, but there's no definition provided at least expressly of just effective resolution.

[00:02:26] Speaker 00:
It's true.

[00:02:26] Speaker 00:
The specification never says effective resolution equals effective resolution score in HEC-VIRVA.

[00:02:32] Speaker 00:
That is not something that it says.

[00:02:35] Speaker 00:
It never defines effective resolution separately.

[00:02:38] Speaker 00:
It only ever talks about using an effective resolution score.

[00:02:43] Speaker 00:
And when it talks about the embodiments, it talks about using that score, just as the claims do, and recognizing whether that score is higher or lower for one of the two images, and using that as the criteria in which you might determine to switch or not to switch the output.

[00:03:00] Speaker 01:
What can you point to in the claims or elsewhere in the patent that would cause us to limit the scope of the claims to just the score?

[00:03:07] Speaker 00:
So I think the most important feature is the claims references to using a term like lower.

[00:03:15] Speaker 00:
to describe when you switch, or when you don't switch in this case, when you have the non-switching criteria, that when the effective resolution of one is lower than the other, that's talking about making a measurement comparison, that this one is lower than that one.

[00:03:29] Speaker 03:
Your suggestion is that lower implies that there has to be a number assigned.

[00:03:36] Speaker 00:
Right, the lower is the lower score, not some lower aesthetic component that's ill-defined and can't be measured in some way.

[00:03:46] Speaker 00:
I can say that the number three is lower than the number five, for example, if there were scores.

[00:03:52] Speaker 00:
I can't say that prettier is lower than really pretty.

[00:03:57] Speaker 00:
Those are not going to be quantitative measures from which one could choose to

[00:04:05] Speaker 00:
implement this kind of automated non-switching criteria that the patent described.

[00:04:09] Speaker 01:
But if that's true, why didn't the patentee just say efficient resolution score or effective resolution score in the claim?

[00:04:17] Speaker 00:
I think it's a shorthand for the same thing, is the simple answer, Your Honor.

[00:04:22] Speaker 03:
So you're suggesting we should understand the specification to say these are synonyms?

[00:04:28] Speaker 00:
Yes.

[00:04:28] Speaker 03:
You know, it uses different words.

[00:04:30] Speaker 00:
That's correct.

[00:04:35] Speaker 00:
But even putting aside the construction, Togo doesn't actually, so if we were to accept, and I would say the board's construction here is not exceptionally clear as to what it's using as the definition of effective resolution, but

[00:04:57] Speaker 00:
Togo, the reference that it relies on for this purpose, and the only reference that's purported to teach this, doesn't actually teach using blurriness or sharpness, which are the criteria the board talks about as non-switching criteria.

[00:05:11] Speaker 00:
It just uses two things, magnification and distance, imaging distance from an object.

[00:05:19] Speaker 00:
Those are not measures of sharpness or blurriness.

[00:05:21] Speaker 00:
This is where, so Togo,

[00:05:25] Speaker 00:
Paragraph 18 of the reference, which is at page 5682 of the appendix, and at paragraphs 49 to 50 of the reference, which is page 5685, it's only talking about making its no switch determination based on those two parameters, magnification and distance.

[00:05:42] Speaker 03:
What about the language in TODA talking about a telephoto imaging module being less sharp at close distances, so thus implying that by making

[00:05:54] Speaker 03:
shifts at distances it's implicitly doing it based on resolution and whether in sharpness.

[00:06:05] Speaker 00:
So I think

[00:06:09] Speaker 00:
I think that's a step too far in terms of drawing a few too many inferences.

[00:06:15] Speaker 00:
Essentially, what I think that argument boils down to is the reference doesn't exclude using sharpness or blurriness.

[00:06:22] Speaker 00:
It's using something different, but I don't think it's a proxy.

[00:06:28] Speaker 00:
That would be the argument, but I don't think there's enough proxy there to suggest that simply saying how far away it is

[00:06:37] Speaker 00:
The reference notes that sometimes the distance can affect that.

[00:06:43] Speaker 00:
But it doesn't really say that it's using the distance as a proxy for sharpness or blurriness.

[00:06:48] Speaker 00:
It appears to be using distance simply because it's a convenient and easily measurable system that the reference talked about.

[00:06:58] Speaker 00:
It doesn't talk about measuring sharpness or blurriness.

[00:07:01] Speaker 00:
It doesn't talk about looking to see if, in fact, the distance does or does not affect sharpness or blurriness.

[00:07:07] Speaker 00:
So under Togo's criteria, it's entirely possible that

[00:07:11] Speaker 00:
you could have the no switching based on the distance even though the one you were keeping had a lower effective resolution than the one you weren't keeping.

[00:07:20] Speaker 00:
Togo's not really consistent with doing what the patent says.

[00:07:24] Speaker 00:
The fact that maybe on occasion it might end up with the same answer is not the same as teaching using sharpness or blurriness as your criteria.

[00:07:32] Speaker 03:
Why was the board not entitled to rely on Dr. Duran's opinion?

[00:07:37] Speaker 00:
So I think

[00:07:39] Speaker 00:
Here, first of all, obviously, as I said, the core of that is, as we said, the claim construction issue.

[00:07:46] Speaker 00:
But also, I think, because they don't address, obviously, under what we believe to be the correct construction, Dr. Durand doesn't provide an opinion to support that.

[00:07:55] Speaker 00:
But putting that aside, I don't think that simply, it's not sufficient for an expert to say, well, this thing which Togo concedes is different.

[00:08:07] Speaker 00:
and could sometimes correlate to effective resolution under this very vague concept of that, that that's sufficient.

[00:08:16] Speaker 00:
I don't think that the board can simply credit expert testimony of that type when the reference clearly says something different.

[00:08:29] Speaker 00:
That's taking the substantial evidence a step too far.

[00:08:33] Speaker 00:
I'm happy to answer other questions about this, or if the court had other questions about any of the other issues, I'm happy to address them.

[00:08:38] Speaker 00:
But this is obviously a pretty discreet piece.

[00:08:41] Speaker 00:
All right.

[00:08:42] Speaker 00:
Thank you very much.

[00:08:44] Speaker ?:
OK.

[00:08:44] Speaker ?:
Miss Leach, whenever you're ready.

[00:08:46] Speaker 03:
Do you go by Boyd Leach or Leach?

[00:08:48] Speaker 03:
It's just Leach.

[00:08:49] Speaker 03:
It's fine.

[00:08:49] Speaker 03:
Thank you.

[00:08:51] Speaker 02:
Good morning.

[00:08:51] Speaker 02:
May it please the court.

[00:08:53] Speaker 02:
My name is Erin Leach, and I represent Apple, Incorporated.

[00:08:56] Speaker 02:
Your honors, we recognize that the court has already heard argument on the analogous art issue in the 1340 and 1341 consolidated appeal.

[00:09:09] Speaker 02:
So I will not raise new arguments.

[00:09:11] Speaker 02:
But to the extent that the court has open questions or their concerns were not addressed by the previous argument, I would invite questions if the court sees fit.

[00:09:22] Speaker 02:
Otherwise, I'll move on to the effective resolution limitation.

[00:09:27] Speaker 02:
So on the effective resolution claim construction issue, the board properly rejected core photonics's attempt to read the term score from the specification into the claims.

[00:09:39] Speaker 02:
As the board explained, there was no lexicography and there was no disclaimer to justify doing so.

[00:09:48] Speaker 02:
Both the intrinsic and the extrinsic evidence shows that the patents treat effective resolution and effective resolution score differently.

[00:09:59] Speaker 02:
With respect to the intrinsic evidence, if the court wants to turn to the 898 patent, I have a few citations here that could help the court.

[00:10:10] Speaker 02:
At appendix 159,

[00:10:21] Speaker 02:
It states, in some exemplary embodiments, the no switching criterion includes effective resolution of the tele image being lower than an effective resolution of the wide image.

[00:10:34] Speaker 02:
And then if you turn over to 160.

[00:10:36] Speaker 01:
If we could pause there, how can that be, as your friend on the other side suggested, two is lower than three, but how is one image lower than the other?

[00:10:49] Speaker 02:
We would disagree that lower implies that you have to have a quantitative number.

[00:10:57] Speaker 02:
You could look at an image, using your eyes and qualitatively tell whether the image quality or the effective resolution is higher or lower from one picture to another.

[00:11:09] Speaker 01:
And that could be converted to a number, presumably, right?

[00:11:13] Speaker 02:
Of course, Your Honor.

[00:11:14] Speaker 02:
There are a number of ways to determine effective resolution.

[00:11:17] Speaker 02:
Some of them would be calculating the effective resolution score.

[00:11:21] Speaker 02:
The board also talked about the Jacobson reference, which talks about determining a resolution by resolving power.

[00:11:29] Speaker 02:
There's also the spatial frequency way of determining effective resolution, and Togo teaches when the object is close to the camera, well then in that case the effective resolution of the tele would be, or the image quality of the tele would be superior to the wide.

[00:11:50] Speaker 02:
And so if you turn over to 162, appendix 162 however,

[00:11:55] Speaker 02:
at lines 10, 15 through 19.

[00:12:00] Speaker 02:
Which column is that?

[00:12:01] Speaker 02:
Calum 10.

[00:12:02] Speaker 02:
Thank you.

[00:12:05] Speaker 02:
It says the effective resolution score of the tele image is lower than that of the wide image.

[00:12:10] Speaker 02:
And so there are two options here.

[00:12:15] Speaker 02:
Core Photonics could have claimed that of the one in column four, or that of 10, they chose only the

[00:12:25] Speaker 02:
former.

[00:12:26] Speaker 02:
And so we believe that there is no equality between effective resolution and effective resolution score.

[00:12:36] Speaker 02:
Those are just two options.

[00:12:38] Speaker 02:
The next is at appendix 160, at column 6, lines 16 through 18.

[00:12:46] Speaker 02:
And that's actually the definition of the effective resolution score.

[00:12:49] Speaker 02:
And what the board said was that inside of that definition, it talks about the effective resolution score can be derived from a combination of the sharpness scores and the edge scores.

[00:13:03] Speaker 02:
So sharpness is a feature of the effective resolution.

[00:13:06] Speaker 02:
And it also says that the effective resolution score provides a good indication of the effective resolution level in the image.

[00:13:15] Speaker 02:
the effective resolution score is just a good indication of the effective resolution, but not the effective resolution itself.

[00:13:25] Speaker 02:
And finally, I just want to point the court to figure four, which is at appendix 157.

[00:13:36] Speaker 02:
And what this figure, the important takeaway from this figure is that you have effective resolution that is changing, is dependent on the zoom factor.

[00:13:45] Speaker 02:
So this is not the effective resolution score.

[00:13:47] Speaker 02:
This is sort of a qualitative assessment of how effective resolution can change with the zoom factor increases.

[00:13:57] Speaker 02:
So with the extrinsic evidence, it tells a similar story.

[00:14:02] Speaker 02:
I think Judge Stoll mentioned our expert's testimony.

[00:14:06] Speaker 02:
And he, at Appendix 6321, he said that a faceta would not understand the meaning of effective resolution to include or necessarily mean effective resolution score.

[00:14:18] Speaker 02:
Core Photonics, his own expert, at Appendix 6753, said that the effective resolution score is just a measurement of the effective resolution, not the effective resolution itself.

[00:14:30] Speaker 02:
And final point regarding the Togo reference and whether it teaches the limitation.

[00:14:39] Speaker 02:
Substantial evidence supports the board's finding that the Togo reference does teach the effective resolution limitation.

[00:14:48] Speaker 02:
Dr. Durand's testimony that Togo teaches comparing the image quality of the wide and the tele images is at appendix page 5511.

[00:15:00] Speaker 03:
So I was just going to ask you, how do you respond to the argument that the board erred in relying on Mr. Duran's testimony because it's inconsistent with Togo itself?

[00:15:12] Speaker 02:
Are you referring to the claim six, claim four?

[00:15:14] Speaker 03:
I'm just referring to the argument that was made here today that I heard, and I just wanted to see what your response was.

[00:15:21] Speaker 02:
I don't understand at all that Dr. Duran's testimony is inconsistent with the reference.

[00:15:28] Speaker 02:
So we would simply disagree with the argument.

[00:15:33] Speaker 02:
We think that it's entirely consistent.

[00:15:35] Speaker 02:
He explained that Togo teaches that the tele image is less sharp than the wide image when the object is close.

[00:15:47] Speaker 02:
And most importantly, perhaps, Togo specifically states

[00:15:51] Speaker 02:
that image qualities of the wide angle image 20 and the telephoto image 21 at long distance B are compared.

[00:16:00] Speaker 02:
So, and that's Edipinix 5686 paragraph 67.

[00:16:04] Speaker 02:
So Togo indisputably teaches comparing image qualities.

[00:16:09] Speaker 02:
And so that's all I have, Your Honor.

[00:16:11] Speaker 01:
Does the board rely on Dr. Durand for what Togo discloses?

[00:16:17] Speaker 02:
Yes, so it's a little bit indirect, but it is in the opinion, Your Honor.

[00:16:21] Speaker 02:
At 57.

[00:16:23] Speaker 01:
Appendix 57.

[00:16:34] Speaker 02:
So at the beginning of the first full paragraph, the board talks about what petitioner relied on.

[00:16:42] Speaker 02:
And there are a number of citations there from

[00:16:47] Speaker 02:
from Togo and also from the petition.

[00:16:50] Speaker 02:
And then also at the bottom of that paragraph, it talks about paragraph pages 55 through 57 of the petition.

[00:16:58] Speaker 02:
And in that portion of the petition, which includes much of what is above this sentence, it includes Dr. Durant's testimony.

[00:17:08] Speaker 01:
So we can infer from that that the board was crediting Dr. Duran.

[00:17:12] Speaker 02:
Yes.

[00:17:13] Speaker 02:
So that's exactly what the inference would be, citing the petition.

[00:17:18] Speaker 02:
And then in that section of the petition, it's focused on Dr. Duran's testimony.

[00:17:24] Speaker 02:
So if there are no further questions, we thank the court for its time.

[00:17:29] Speaker 02:
And we ask that you affirm the board's final decision.

[00:17:34] Speaker 02:
Thank you.

[00:17:35] Speaker 02:
Thank you.

[00:17:37] Speaker 00:
I don't think I will use very much of it.

[00:17:39] Speaker 00:
But I did want to just comment on one point in particular that my friend made regarding the claim construction issue.

[00:17:45] Speaker 00:
There was a discussion of disclosure at column four somehow being an embodiment that used effective resolution but not an effective resolution score and contrasting that with column 10.

[00:17:58] Speaker 00:
I don't think that's a fair characterization of the patent.

[00:18:00] Speaker 00:
The reference at column four is part of the summary discussion.

[00:18:03] Speaker 00:
It's a shorthanded summary, obviously, of the invention.

[00:18:07] Speaker 00:
It's not a description.

[00:18:08] Speaker 00:
It's not part of the detailed description of the embodiments.

[00:18:11] Speaker 00:
When that same embodiment is discussed is in column 10, where it's discussed using an effective resolution score, not some vague concept of effective resolution.

[00:18:21] Speaker 00:
So I don't think that suggesting that those two passages exist somehow suggests that the board's claim construction is correct.

[00:18:29] Speaker 00:
I'm happy to answer other questions, but that.

[00:18:33] Speaker 00:
Thank you very much.

[00:18:34] Speaker 01:
No penalty for brevity.

[00:18:39] Speaker 03:
The case will be submitted.

[00:18:41] Speaker 03:
We thank the parties for all of the arguments today.

[00:18:44] Speaker 03:
And that will be it for today.

[00:18:48] Speaker 03:
Thank you.