[00:00:00] Speaker 03: We have a lot of selections this morning. [00:00:02] Speaker 03: 1022, 1292. [00:00:05] Speaker 03: Mr. Kaplan. [00:00:06] Speaker 03: Good morning again. [00:00:10] Speaker 01: May it please the court. [00:00:12] Speaker 01: The board's decision in this reexamination should be reversed because the board used the wrong construction for the key term time select switch under proper construction following the rules of Phillips, which you have to account for the actual [00:00:30] Speaker 01: terms in the claim, the actual claim language and how it is described in the spec. [00:00:36] Speaker 01: The construction does not reflect, the construction used by the board does not reflect that and therefore that's our basis. [00:00:44] Speaker 01: In particular, I'm going to get to it, but just to make clear, in this case the construction of the time select switch cannot cover a charge couple device because the specification makes clear that this particular invention is claimed [00:01:00] Speaker 01: excludes that technology and the reference that's used in combination with the double patenting reference is a CCD device and that is a real problem. [00:01:09] Speaker 01: The 740 patent is one of a family of patents of select that feature elements of an imager separated onto different planes or boards. [00:01:21] Speaker 01: Again, all solid-state imagers are not the same. [00:01:25] Speaker 01: Charge-coupled devices operate differently than CMOS imagers and differently than charge injection device elements. [00:01:34] Speaker 01: And I don't want to get too much into the weeds, but part of that is important here. [00:01:38] Speaker 01: A charge-coupled device works like all imagers. [00:01:42] Speaker 01: It receives incident light onto a pixel, and you ultimately can read the pixel out and get an image. [00:01:48] Speaker 01: A charge-coupled device, to read out that image, you have to destroy the image from the pixels. [00:01:52] Speaker 01: You cannot adjust it. [00:01:54] Speaker 01: a CMOS imager or a CID imager, which are described in the specification, operate differently. [00:02:00] Speaker 01: Those pixels can be read out without destroying them. [00:02:03] Speaker 01: They can be addressed differently. [00:02:06] Speaker 01: And that is an important factor when we get to the claim language. [00:02:11] Speaker 04: So your main argument, as you stated in the brief, is the board heard in construing the remote time select switch is not requiring circuitry for varying integration periods. [00:02:22] Speaker 04: But if you look at figure 10 of the patent, as I read it, it seems to have the time select switch specifically as a separate item from the circuitry. [00:02:37] Speaker 04: The time select switch is 320, the circuitry is 318. [00:02:40] Speaker 04: Isn't that correct? [00:02:43] Speaker 01: I think what you're seeing in figure 10 [00:02:47] Speaker 01: reflects what you're seeing, but I don't think that's a correct assessment of what's in there in terms of what's claimed. [00:02:52] Speaker 01: Because the claim language is a time select switch for, and there's a number of different functions, first of all. [00:03:00] Speaker 01: So the claim construction of the term time select switch is not just a time select switch, it's a time select switch with additional recited functions. [00:03:09] Speaker 01: And the specification explains that when this [00:03:13] Speaker 01: this ability to selectively vary integration is included, that time select switch has to include additional circuitry. [00:03:21] Speaker 01: That's what makes it into a time select switch. [00:03:25] Speaker 04: So... So, but you agree that this figure shows them as separate. [00:03:29] Speaker 01: There are two boxes, 320 and 318. [00:03:32] Speaker 01: I agree with that, Your Honor. [00:03:34] Speaker 01: But a person's... One box is labeled time select switch and the other one is circuitry. [00:03:40] Speaker 01: Correct. [00:03:41] Speaker 01: But a person would read that, the claim language, and the specification, which explains how it works. [00:03:47] Speaker 01: And in particular, I'm talking about an appendix 56, column 6, lines 13 to 17, and column 19, lines 37 to 45. [00:03:59] Speaker 01: It explains how this time select switch works. [00:04:02] Speaker 01: Because under your reasoning, Your Honor, or that understanding of it, you would have a knob [00:04:09] Speaker 01: with no function. [00:04:11] Speaker 01: But the claim is directed to a knob that has function. [00:04:13] Speaker 01: So the specification describes what the function is. [00:04:16] Speaker 02: Well, that function is to be able to select a desired integration period. [00:04:21] Speaker 02: Correct. [00:04:22] Speaker 02: That is correct, Your Honor. [00:04:24] Speaker 02: I don't see anywhere in the pen or in the figures that requires the control switch, the time switch, to have its own circuitry. [00:04:37] Speaker 02: In fact, it's opposite. [00:04:38] Speaker 02: The figure shows just simply a connection wire leading from the control knob to the remainder of the circuitry. [00:04:46] Speaker 01: Well, Your Honor, it does describe, I disagree with that overall characterization, because the specification [00:04:53] Speaker 01: does describe about this readout circuitry. [00:04:59] Speaker 01: And I'm looking at Appendix 56 in the patent column 6, lines 32 to 36. [00:05:05] Speaker 01: It talks about circuitry that is required to carry out when you want to selectively vary an integration period. [00:05:14] Speaker 01: It talks about readout circuitry. [00:05:17] Speaker 01: And then the patent separately describes circuitry to implement the integration [00:05:23] Speaker 01: period variance. [00:05:24] Speaker 01: So we're not conflating things, but the specification does describe circuitry that is necessary for implementing the time select switch that can selectively vary the integration period. [00:05:37] Speaker 01: And so that's how we submit a person's skill in the art. [00:05:41] Speaker 01: We look at it under controlling case law. [00:05:44] Speaker 01: There was an issue with the proposed construction, which is a feature. [00:05:48] Speaker 01: We have that language. [00:05:50] Speaker 01: It's a feature for selectively varying integration periods to produce an image of desired brightness. [00:05:56] Speaker 01: That construction was proposed because it reflects what a person would understand the claim language and the specification to teach. [00:06:06] Speaker 01: So it's more than just a knob. [00:06:07] Speaker 01: It is a knob with circuitry to carry out that function. [00:06:11] Speaker 01: And I would submit that I'd also just point out that the Profectus case that we cited in our [00:06:18] Speaker 01: in our brief also has claim language which uses the term feature to capture a variety of different mechanisms described in a patent to cover a particular operation. [00:06:31] Speaker 01: And so that's the same thing that's going on here. [00:06:33] Speaker 01: So we submit that a time select switch is more than just a knob because a knob would not provide the resided function. [00:06:40] Speaker 01: And that is the source of the board's claim construction error. [00:06:45] Speaker 01: Again, I just want to point out that the patent is also clear that this feature, and I'm in Appendix 56 in Column 5, Lines 35 to 64, this recited timeslux, which doesn't apply to CCD images because they don't operate this way. [00:07:03] Speaker 01: The claim language also says, in addition to the function, it talks about producing an image of desired brightness. [00:07:09] Speaker 01: Well, that means, and it's described in the specification as well, [00:07:13] Speaker 01: that you have to be able to see an image and adjust it. [00:07:16] Speaker 01: With a CCD device, if you see an image, it's out of the device. [00:07:20] Speaker 01: You cannot adjust it. [00:07:21] Speaker 01: You can only do something going forward. [00:07:24] Speaker 01: This claim language and specification describes the ability to selectively vary integration period on an image, which means you have to be able to see it and adjust it. [00:07:34] Speaker 01: And that is what's described in the patent. [00:07:38] Speaker 01: Another reason that Tomiyasu reference is not proper. [00:07:43] Speaker 02: So turning now to... The gain controls knob in Tomoyasu, it's to control light. [00:07:56] Speaker 01: My understanding, Your Honor, is that an automatic gain control is what controls the voltage. [00:07:59] Speaker 01: So if you're adjusting a TV and you have like a brightness knob, it increases voltage so things get more amplified. [00:08:05] Speaker 01: So that may or may not help. [00:08:07] Speaker 01: That's another problem with Tomoyasu is that Tomoyasu focuses on using this automatic gain control. [00:08:12] Speaker 01: which is adjusting a voltage is not selecting a particular integration period. [00:08:17] Speaker 01: The integration period... But that controls the brightness of the image. [00:08:21] Speaker 01: It can affect the brightness. [00:08:23] Speaker 01: So what's the difference then? [00:08:24] Speaker 01: Because the claim itself says selectively varying an integration period. [00:08:30] Speaker 01: The integration period is how long incident light can hit the device. [00:08:36] Speaker 04: So why doesn't the knob do that? [00:08:38] Speaker 04: Excuse me? [00:08:38] Speaker 04: Why doesn't the knob do that? [00:08:41] Speaker 01: What the knob does, it says in Tomiyasu that it adjusts the brightness. [00:08:47] Speaker 01: It uses just voltage. [00:08:49] Speaker 01: It doesn't let you set that integration period time. [00:08:53] Speaker 01: That's just not a feature of that knob. [00:08:56] Speaker 01: Automatic gain control, as I said, increases the voltage that's going to affect the image, which may or may not help. [00:09:04] Speaker 01: The other point with Tomiyasu is that the claim also says that this time select switch is remote. [00:09:12] Speaker 01: from the first circuit board. [00:09:13] Speaker 01: And the first circuit board is the one that has the signal processing circuitry in Tomiyasu. [00:09:18] Speaker 01: When you look at the elements that are identified for that feature, it is on the board with the signal processing circuitry. [00:09:28] Speaker 01: This goes back to an underlying aspect of the claimed invention, which is taking existing imager technology and breaking it up. [00:09:35] Speaker 01: So you have devices which can be reconfigured into more favorable, smaller, [00:09:41] Speaker 01: arrangements and so that remote term is also not met by the adjusted by Tomiaso and just on the claim construction issue itself I know there was briefing about select having changed positions we addressed it we have taken the position that [00:10:04] Speaker 01: circuitry is involved in the IPR proceeding in the district court we use the term feature which is consistent with your feature include whatever elements are required to carry out that function and that would be circuitry so there is no issue there and I will reserve my time. [00:10:22] Speaker 03: We will save it for you. [00:10:24] Speaker 03: Thank you. [00:10:25] Speaker 03: Ms. [00:10:25] Speaker 03: Caprahan. [00:10:26] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:10:28] Speaker 00: I would just like to make four brief points. [00:10:31] Speaker 00: First, there is nothing in the claim language or in the specification that limits the time select switch to one that contains particular circuitry, such as circuit 318, or one that specifically requires real-time monitoring or readout of an image, as argued by Fillette. [00:10:50] Speaker 00: And that is at APPX 15 and APPX 23. [00:10:53] Speaker 00: The Board explained both of those points. [00:10:57] Speaker 00: As this board found, there is substantial evidence to find that Tomoyasu teaches a remote gain controlling knob. [00:11:05] Speaker 00: And that is at APPX 24. [00:11:08] Speaker 00: The board explained the figure 10 showing that the knob is separate from the processing circuitry. [00:11:15] Speaker 00: And finally, as to this point about voltage, what Tomoyasu explains is that the voltage actually changes the integration period as recognized by Judge Raina. [00:11:26] Speaker 00: If there are no further questions, I would yield the rest of my time. [00:11:30] Speaker 03: That's fine. [00:11:31] Speaker 03: Thank you, Ms. [00:11:32] Speaker 03: Kaplan. [00:11:33] Speaker 04: Judge Ranitz, did you have a question? [00:11:37] Speaker 04: No. [00:11:37] Speaker 04: No further questions. [00:11:38] Speaker 03: Mr. Kaplan has a few minutes to rebut. [00:11:43] Speaker 01: Just really one point, Your Honors, that I'll make. [00:11:46] Speaker 01: The specification in column five, appendix 56, describes the differences [00:11:53] Speaker 01: between CCD and CMOS, but how this feature can be implemented and why it would work in CCD and not CMOS. [00:11:59] Speaker 01: And it talks about this readout select circuitry and in column 19, and I'm gonna read exactly from the patent, it's Appendix 63, and this is a column 19, line 43. [00:12:14] Speaker 01: In order to incorporate variable charge integration capability, imager readout circuitry, imager readout clock select circuitry 13 is added [00:12:23] Speaker 01: which communicates with one or more of the video processors. [00:12:26] Speaker 01: So that means the specification is absolutely describing that when you want to implement this feature, this time select feature to vary the periods, you need some circuitry in the patent. [00:12:37] Speaker 01: It's described as circuitry 318. [00:12:39] Speaker 01: But that is how, under Phillips, the person's going to understand the claim language and the spec. [00:12:45] Speaker 01: So with that, if there's any other questions. [00:12:48] Speaker 03: Thank you, Mr. Kaplan. [00:12:49] Speaker 03: The case is submitted.