[00:00:00] Speaker 03:
We will hear argument next in number 222042, CAFE system versus Nespresso.

[00:00:08] Speaker 03:
Mr. Karski.

[00:00:10] Speaker 01:
Thank you, Your Honor.

[00:00:11] Speaker 01:
Good morning, and may it please the court.

[00:00:14] Speaker 01:
The district court below committed three fundamental errors, each of which is independently reversible and subject to a de novo review standard.

[00:00:24] Speaker 01:
First, the court applied what can only be considered a vague disclaimer

[00:00:29] Speaker 01:
from the plain and ordinary meaning of the term barcode, where the claims, spec, and the interaction between the applicant and the patent office do not limit that term whatsoever.

[00:00:40] Speaker 01:
Second, the court then applied this disclaimer during the summary judgment process to find facts on what the particular excluded YARISH reference disclosed based solely on inventor self-serving testimony, extrinsic evidence.

[00:00:57] Speaker 01:
And third, the court improperly granted summary judgment of non-infringement on an incorrect legal standard that essentially collapsed the two prongs, the infringement test, into one, and making adverse factual findings inconsistent with the plaintiff's allegations

[00:01:14] Speaker 01:
and with our expert's testimony, Dr. Singer.

[00:01:18] Speaker 01:
I'd like to focus on the claim construction.

[00:01:21] Speaker 01:
But obviously, I want to address any questions that the panel might have here.

[00:01:26] Speaker 01:
With respect to the claim construction, the district.

[00:01:30] Speaker 04:
Yes, Your Honor.

[00:01:32] Speaker 04:
On the J1111?

[00:01:33] Speaker 01:
Yes, Your Honor.

[00:01:36] Speaker 01:
I absolutely have it and I've got the text right on my cheat sheet.

[00:01:40] Speaker 04:
This is where Dr. Wolff was trying to explain to the EPO the difference between bitcodes binary and barcodes which can be binary and what the difference was.

[00:01:54] Speaker 04:
It's the statement on GA-101 that I think led to some of the problems that you're worried about.

[00:02:03] Speaker 04:
Can you explain to me what Dr. Wolfe was trying to tell the board, where he says that Document D, Moran-Jarish, discloses a bitcode, not a barcode?

[00:02:14] Speaker 04:
Because the barcode has shown that it always has constructed bars having variable widths.

[00:02:18] Speaker 04:
And that's a matter of visual impression, isn't it?

[00:02:21] Speaker 01:
Yes, it is, Your Honor.

[00:02:22] Speaker 01:
Exactly right.

[00:02:24] Speaker 04:
A variable width.

[00:02:24] Speaker 04:
And therefore, it contains more than only two binder assemblies, such as those in Moran's.

[00:02:32] Speaker 04:
What did he mean by that?

[00:02:33] Speaker 01:
Well, Your Honor, there are about 20 odd instances where Dr. Wolf talks about barcode and what it means.

[00:02:41] Speaker 01:
This one instance reinforces what he said all along, and that is a barcode always has bars and gaps of variable width.

[00:02:50] Speaker 01:
A consequence of having the addition of width as a variable is that it gives the capacity for that barcode to convey additional information beyond, say, the symbol of a zero or the symbol of a one, or a yes or a no, or a true or a false.

[00:03:11] Speaker 04:
In fact, I would go so... What additional information would it convey?

[00:03:15] Speaker 04:
What would a OO be?

[00:03:17] Speaker 01:
Well, in OO, as discussed by Dr. Singho's in connection with the summary judgment motion, can be the component of a modular barcode, where you have a grouping of symbols, a grouping of light or dark modules to create a larger bar.

[00:03:40] Speaker 03:
I don't know if you want to say symbols there.

[00:03:42] Speaker 03:
I think you want a grouping of modules to create a symbol.

[00:03:45] Speaker 01:
Yes, although I think that the terminology that was used in the underlying references that was submitted to the EPO called that grouping of modules together a bar.

[00:03:58] Speaker 01:
But I'm happy to use the word symbol as well, Your Honor, either way.

[00:04:02] Speaker 01:
And I think part of the problem here, I don't mean to divorce myself from your question, but part of the problem here is that

[00:04:10] Speaker 01:
We have identified and alleged infringement on this virtual capsule, the accused products here, using bar the way that modular barcodes and that common, consistent pattern has been used.

[00:04:26] Speaker 01:
Whereas Nespresso says, no, no, no, a bar is just some arbitrary segment of a larger bar.

[00:04:35] Speaker 01:
But leave that as it may.

[00:04:36] Speaker 01:
I want to answer your question, Judge Cleverjee.

[00:04:39] Speaker 04:
Well, it seemed to me that the district court came to the conclusion that something that is using Os and Ones is not a barcode.

[00:04:48] Speaker 01:
Exactly.

[00:04:49] Speaker 04:
And that seemed to be what he was saying.

[00:04:51] Speaker 01:
That is exactly where the court got it wrong, Your Honor.

[00:04:54] Speaker 04:
He seemed to say that my support for that is from the language I just wrote to you.

[00:04:59] Speaker 01:
That's the only place where he finds that support, Your Honor.

[00:05:01] Speaker 04:
Well, that's why I thought this was a good place to start.

[00:05:03] Speaker 01:
I agree with you.

[00:05:04] Speaker 01:
It is a good place to start.

[00:05:06] Speaker 01:
And so this phrase, one,

[00:05:09] Speaker 01:
It is in the intrinsic record, but as we learned from Phillips, even if you do consider it to be intrinsic evidence, not all intrinsic evidence is created the same.

[00:05:18] Speaker 01:
And one must be very concerned, this is the AIA case, in terms of giving reliance as if this were the colloquy between the applicant and the patent office itself.

[00:05:29] Speaker 00:
Just getting into the details.

[00:05:31] Speaker 00:
When it says, therefore contains more than only two binary symbols such as 0 and 1, what does that mean?

[00:05:39] Speaker 01:
That means that the barcode, because of that width variable, has the ability to code beyond just a 0 or a 1.

[00:05:46] Speaker 00:
And why can't YARISH do that?

[00:05:49] Speaker 01:
Well, YARISH.

[00:05:50] Speaker 00:
I'm just pulling information.

[00:05:51] Speaker 01:
Yes, exactly.

[00:05:52] Speaker 01:
YARISH at column 9.

[00:05:54] Speaker 01:
YARISH, jarish, tomato, tomato.

[00:05:57] Speaker 01:
YARISH at column 9.

[00:05:58] Speaker 01:
talks specifically about what the code is.

[00:06:02] Speaker 01:
It talks about the code as being the small rectangles.

[00:06:05] Speaker 01:
And those are discrete portions that are segregated and separated.

[00:06:11] Speaker 01:
There is no need whatsoever to consider width.

[00:06:14] Speaker 00:
And so you have... The key aspect is that they're separated, so they won't have variable widths.

[00:06:19] Speaker 01:
Absolutely.

[00:06:20] Speaker 01:
And that exactly is the difference as reinforced at, for example, APPX 1102.

[00:06:29] Speaker 01:
that barcodes are well-defined and clearly understood is having that line and gap of variable width.

[00:06:34] Speaker 01:
At 1103, the sole decision-making criteria for something being a barcode versus a bitcode is a line and gap of variable width.

[00:06:43] Speaker 01:
1109, which says that a person of ordinary skill and the art at all times defines the barcode in this way.

[00:06:52] Speaker 01:
And any other interpretation is misguided.

[00:06:56] Speaker 01:
on the heels of those clear statements that say the barcode has to do with the bars and gaps of variable width.

[00:07:05] Speaker 01:
And only this one isolated reference saying a consequence of that is that it can contain more information than just a 0 or a 1.

[00:07:13] Speaker 04:
And mind you, at the bottom line, I think your position is that

[00:07:18] Speaker 04:
The APO foul history, which is part of the foul history here, shows that the maximum surrender, if any, that your opponent made to win in the APO was that you surrendered Jarosz, which is strictly a bit 0-1, 0-1, 0-1, 0-1 cousin.

[00:07:37] Speaker 01:
Well, certainly I think that's a consequence.

[00:07:40] Speaker 01:
I would frame it just marginally differently, Your Honor.

[00:07:42] Speaker 01:
And I think you really have to look at what exactly the applicant here, or the applicant's attorney here, specifically said.

[00:07:51] Speaker 01:
to the EPO if you're going to conclude that there's a disclaimer at all.

[00:07:56] Speaker 01:
And frankly, I don't think I submit that this is insufficient to form the basis for a disclaimer.

[00:08:02] Speaker 01:
But secondly, you would actually have to look and see what the applicant said in terms of distinguishing YARISH.

[00:08:08] Speaker 01:
We didn't just distinguish YARISH as a whole.

[00:08:12] Speaker 01:
We distinguished the bit code in YARISH, namely a code which does not have variable bars and widths.

[00:08:21] Speaker 01:
And that's the distinction and what we actually said.

[00:08:26] Speaker 01:
What the district court here did incorrectly was first say, OK, Mr. Applicant, you caused a disclaimer by virtue of these statements in EPO, notwithstanding the fact that even Nespresso admits that our spec does not limit the term barcode in any way.

[00:08:44] Speaker 01:
There was no colloquy between the applicant

[00:08:47] Speaker 01:
and the Patent Office with respect to the scope of barcode, there is nothing in the Phillips-based intrinsic evidence here that would justify it.

[00:08:57] Speaker 03:
Where in the EPO submission do you most clearly say that Yarsh is different because there are no variable widths?

[00:09:08] Speaker 01:
I've got a reference for you in a moment, Your Honor.

[00:09:13] Speaker 03:
Why does nobody bring an appendix to the lecture?

[00:09:16] Speaker 01:
I've got it right here, Your Honor.

[00:09:17] Speaker 03:
You knew that we were spending the entire time on these pages.

[00:09:21] Speaker 01:
I did, and I've got it right here.

[00:09:35] Speaker 01:
Well, I would point the court first to the sentences that I just pointed to, 11.02, 11.03, 11.09.

[00:09:44] Speaker 04:
If you look specifically at- Your Honor, if I may just answer Judge Toronto's question.

[00:10:00] Speaker 01:
Here at APPX 11.14.

[00:10:02] Speaker 01:
11.14.

[00:10:07] Speaker 01:
Underneath the image at the top of the page, 1114.

[00:10:17] Speaker 01:
There's an excerpt at the top of the page.

[00:10:21] Speaker 01:
So underneath there it says, each of these cases then show that while

[00:10:25] Speaker 01:
The barcode is a bitcode.

[00:10:28] Speaker 01:
It is also a special case and therefore represents a subset of the bitcode.

[00:10:34] Speaker 01:
It is readily apparent that not every bitcode is automatically a barcode.

[00:10:38] Speaker 01:
For example.

[00:10:39] Speaker 03:
Can I just to be clear, my question meant to be very specifically about a sentence that contains D1 or jarish in it.

[00:10:49] Speaker 03:
D1 is different because D1 is jarish.

[00:10:53] Speaker 01:
Next sentence.

[00:10:55] Speaker 01:
For example, the first sequence of zeros and ones disclosed in document D1 is not a barcode, because the lines of other thicknesses, as are typical for the barcode, are absent.

[00:11:08] Speaker 03:
OK, that's all I have.

[00:11:09] Speaker 01:
Thank you, Your Honor.

[00:11:10] Speaker 04:
And then you have a fact finding, I believe, from the EPO, page 1209, where they say that the

[00:11:24] Speaker 04:
D1, it's not evident that the surfaces before the barcode have invariable widths.

[00:11:31] Speaker 01:
Absolutely, Your Honor.

[00:11:32] Speaker 04:
You have to know whether or not evidence, which is translated from the German, what the German word would have been for evidence, evidence,

[00:11:42] Speaker 04:
Unfortunately, Your Honor, I don't know what the underlying... When they say it's not evident, I couldn't tell whether that was actually the board saying there's no evidence.

[00:11:54] Speaker 04:
Evident meaning you don't appear in the video.

[00:11:57] Speaker 01:
I think it's the same fact-finding.

[00:11:59] Speaker 01:
I think it would be the same fact-finding whether it's not evident or no evidence.

[00:12:03] Speaker 04:
Either way, the EPO upon animal... Basically, your bottom line position would be if there's a disclaimer, it's a disclaimer

[00:12:14] Speaker 04:
Exactly right and that's the end of the story

[00:12:32] Speaker 01:
precisely right, and our expert, I see him in my rebuttal time already, but I see that our expert worked through, as best as he could given the ambiguous claim construction that we received, and worked through the virtual capsule and found that there would be infringement, that there are bars and gaps of variable width throughout the virtual, the accused product code, and that

[00:12:57] Speaker 01:
The district court just simply ignored saying it was inconsistent with what we said to the EPO.

[00:13:03] Speaker 01:
We've been consistent all along, Your Honors.

[00:13:05] Speaker 01:
What relief are you seeking here?

[00:13:07] Speaker 00:
I'm sorry?

[00:13:07] Speaker 00:
What relief are you seeking here?

[00:13:09] Speaker 01:
One, a reversal and a remand.

[00:13:12] Speaker 01:
I think that I would prefer if this court, given the vagary that we've had with respect to this term, would direct to the district court in terms of what claim construction to apply with respect

[00:13:24] Speaker 01:
to the term, we'd submit that plain and ordinary meaning, or what the court said is plain and ordinary meaning in APPX 36, lines and gaps of variable width, ought to suffice here, and then a remand to get us to trial.

[00:13:38] Speaker 03:
So there has been now extensive litigation about what the plain and ordinary meaning is.

[00:13:45] Speaker 03:
Would it not be ludicrous for us to say what you should give the jury is give it a plain and ordinary meaning?

[00:13:52] Speaker 01:
uh... if so your honor that i submit that the plane or any meetings exactly what i said which is lines and gaps of variable with i think that the point here is your honor you know when actually grinned when i got this visitor badge this morning right this has a barcode on the bottom of it we'd all agree it's as a barcode on the bottom of it but under the way that the district court is applying this

[00:14:12] Speaker 01:
He's saying, you need to see whether this gets parsed into zeros or ones constituently.

[00:14:17] Speaker 01:
And if it does, then it's a bit code and not a bar code.

[00:14:20] Speaker 01:
That just makes no sense.

[00:14:21] Speaker 01:
And so, Your Honor, I agree with you.

[00:14:22] Speaker 01:
It would be great to have that direction to the district court.

[00:14:26] Speaker 01:
I'm deep into my time.

[00:14:27] Speaker 03:
I apologize.

[00:14:42] Speaker 02:
Good morning.

[00:14:43] Speaker 02:
May it please the court?

[00:14:45] Speaker 02:
All the things that we disagree on in this case, we do agree on a couple of things that I want to start with.

[00:14:51] Speaker 02:
First is the plain and ordinary meaning of barcode.

[00:14:54] Speaker 02:
that it is a code with bars and spaces of varying width.

[00:15:03] Speaker 02:
And what that means, as my friend Mr. Karsten just told the panel, is that by definition, because it has bars and spaces of variable width,

[00:15:14] Speaker 02:
It always has, a barcode always has, more than just two optical symbols.

[00:15:22] Speaker 02:
And since there were a couple of questions about this, I want to clarify that the optical symbols in a barcode are those bars and spaces of variable width.

[00:15:30] Speaker 02:
They are arranged in unique patterns.

[00:15:33] Speaker 02:
We agree on that as well.

[00:15:35] Speaker 02:
And for example, there is a figure on page 50 of the red brief that was relied on by KP and the EPO and in the district court by its expert.

[00:15:51] Speaker 02:
And that shows how these unique patterns of bars and spaces of variable width are arranged so that they map

[00:16:00] Speaker 02:
to specific integers or alphanumeric characters.

[00:16:06] Speaker 03:
Let me tell you part of what has confused me.

[00:16:10] Speaker 03:
So the page 51 is one indication.

[00:16:13] Speaker 03:
It's, I think, essentially the same as the uniform product code 10 pictures of the 10 decimal digits.

[00:16:21] Speaker 03:
And each one of those is seven modules wide with

[00:16:26] Speaker 03:
variety of blank spaces and black spaces.

[00:16:29] Speaker 03:
I did not take it that the fact that there were different patterns between picture one, picture two, picture three, zero through nine, was the point.

[00:16:41] Speaker 03:
But rather the point is that within each little picture, let's call it a clause, that there are different length words.

[00:16:51] Speaker 03:
Some

[00:16:51] Speaker 03:
of the bars within a picture for decimal digit one are fat and some are skinny.

[00:17:00] Speaker 03:
And that's what makes it a barcode, not how you put those things together into larger units either than the module, call it a letter, or the groupings, call them a word, or a clause, call that the overall picture.

[00:17:19] Speaker 03:
And part of what is

[00:17:21] Speaker 03:
terribly confusing, which is I think a big problem for your side, that it is confusing is that there is no comprehensible explanation within the Wolf submission or the accompanying Jesse submission of how to deal with all of that in terms of this zero one business.

[00:17:41] Speaker 03:
Because if you're doing it with modules, there will always be zeros and ones.

[00:17:47] Speaker 02:
Well, let me grab that bull by the horns, Judge Chironto.

[00:17:51] Speaker 02:
I think it's very clear from the EPO submissions and the intrinsic record that a barcode will always have more than two optical symbols.

[00:18:03] Speaker 02:
And what it's referring to there are those bars and spaces of variable width.

[00:18:10] Speaker 02:
intrinsic record distinguishes a bit code, which does not use patterns to represent information, does not use bars and spaces of variable width to represent information.

[00:18:25] Speaker 02:
It uses equal size segments

[00:18:27] Speaker 02:
to which are allocated a symbol representing either a 1 or a 0.

[00:18:34] Speaker 02:
And in that intrinsic record, Judge Toronto, the applicant very specifically said that YARSH is not a bit code because it only ever uses ones and zeros.

[00:18:48] Speaker 03:
I'm sorry.

[00:18:49] Speaker 03:
You said it's not a bit code.

[00:18:50] Speaker 02:
I misspoke then, thank you.

[00:18:53] Speaker 02:
It is not a barcode because it only ever uses two optical symbols.

[00:18:59] Speaker 00:
Are you looking at the statement on page A1111 for that proposition?

[00:19:04] Speaker 02:
I'm sorry, I didn't hear you misspoke.

[00:19:06] Speaker 00:
Are you looking at appendix page A1111 as you assert that?

[00:19:11] Speaker 02:
That is one area where it is.

[00:19:13] Speaker 00:
I mean, because what I see that as saying is I see it as saying

[00:19:17] Speaker 00:
that because the barcode is always constructed of bars having variable widths and therefore contains more than only two binary signals, right?

[00:19:30] Speaker 00:
But it's emphasizing what it looks like, always constructed of bars having variable widths as opposed to YARISH having a code that doesn't have variable widths.

[00:19:41] Speaker 02:
Yes, that's exactly right, Judge Stoll.

[00:19:43] Speaker 02:
But I would take issue with one point, and that is that it is pointing to the appearance of the code, the physical manifestation of the code.

[00:19:54] Speaker 02:
We are talking about optical codes here.

[00:19:57] Speaker 02:
And I'm not saying that the appearance is irrelevant, but it's insufficient to define

[00:20:04] Speaker 02:
a type of optical code on the basis of what it looks like.

[00:20:08] Speaker 02:
These codes are not read by human eyes.

[00:20:10] Speaker 00:
What about where it says, always constructive bars having variable widths?

[00:20:14] Speaker 00:
Yes.

[00:20:15] Speaker 00:
Whether it's optical or visual.

[00:20:17] Speaker 02:
Yes.

[00:20:18] Speaker 02:
Well, let me answer that, Judge Stoll.

[00:20:21] Speaker 02:
Constructive bars having variable width means those patterns that are seven modules wide.

[00:20:31] Speaker 02:
that form a unique reference point.

[00:20:35] Speaker 02:
It's a waveform, I suppose, that is compared to whatever is in the circuitry of the scanner.

[00:20:45] Speaker 02:
But the point is this, that those bars of varying width are assembled in a specific way to make a unique pattern that maps to an integer.

[00:20:57] Speaker 00:
Where is that referred to?

[00:21:01] Speaker 02:
Like on page a one one one one or in any of the discussion in Yes, it is in the appendix for example at 1161 that is where their expert

[00:21:19] Speaker 02:
Well, at 1161, for example, their experts offer testimony that barcodes use more than two different optically recordable elements and or symbols.

[00:21:31] Speaker 02:
But it's also all over the blue brief that the way a barcode works is by assembling bars and spaces of variable width into a pattern.

[00:21:42] Speaker 02:
For example, at eight in the blue brief,

[00:21:45] Speaker 04:
the district court read the language that we've been pointing to on 1-1-1-1 to say that a code that is made up only of O's and 1's is not a barcode.

[00:21:56] Speaker 02:
Yes, Your Honor.

[00:21:57] Speaker 04:
That's what he said.

[00:21:57] Speaker 02:
Yes, Your Honor.

[00:21:58] Speaker 02:
And that is true.

[00:21:59] Speaker 02:
And that is what the Virtuo code is.

[00:22:02] Speaker 02:
It is a code that only ever has two symbols.

[00:22:08] Speaker 02:
a dark absorbent ink that represents the bit zero, and a light reflective ink that represents the bit one.

[00:22:19] Speaker 04:
That is undisputed in this record, and that is- You're saying you can have a code that has bars, visually has bars of different width, but it's not a bar code.

[00:22:30] Speaker 02:
Exactly, because the question is, do those areas that- Why is it not a bar code?

[00:22:36] Speaker 04:
Why is a code of variable width, clearly a variable width, no doubt about it, not a barcode?

[00:22:43] Speaker 04:
Because, Judge Clevenger, the issue is whether those... Why does something in the EPO record clearly and unmistakably state just that?

[00:22:57] Speaker 02:
Well, can I address the... Where is that?

[00:23:02] Speaker 04:
Because that, you're saying, is the disclaimer.

[00:23:05] Speaker 02:
No, we are not saying there's a disclaimer here.

[00:23:08] Speaker 02:
I think disclaimer is an anomalous concept for this discussion.

[00:23:13] Speaker 04:
I realize that is where the- Can a barcode be written in binary terms with 0101?

[00:23:22] Speaker 02:
A barcode can be understood by a computer in those terms, Judge Clevenger, but everything can be on a computer just resolves at some level of abstraction to just zeros and ones, whether it's Taylor Swift's latest song or a barcode or a movie or a spreadsheet.

[00:23:40] Speaker 04:
You're telling us basically that the definition of barcode for purposes of this case or maybe generally doesn't depend on the barcode being read by a computer.

[00:23:51] Speaker 04:
The function of the barcode, that is to say to be read by a computer, is irrelevant to the definition of what a barcode is.

[00:24:02] Speaker 02:
I'm sorry.

[00:24:02] Speaker 02:
If the question is, is it irrelevant how it is read, then no, I don't agree with that.

[00:24:08] Speaker 02:
It's not irrelevant.

[00:24:09] Speaker 04:
It's unimportant.

[00:24:10] Speaker 04:
It doesn't matter.

[00:24:12] Speaker 02:
No, I wouldn't agree with that.

[00:24:14] Speaker 02:
The way that a code is read is very much a function of what type of code it is, a barcode.

[00:24:23] Speaker 03:
read by looking at those patterns and deciding what those patterns map to.

[00:24:49] Speaker 03:
What are those multiple readings?

[00:24:50] Speaker 03:
Each one of them is a 01, a 01, a 01.

[00:24:54] Speaker 03:
And by looking at that seven grouping, they figure out if it's a decimal one, or a decimal seven, or a decimal nine.

[00:25:01] Speaker 03:
Why is that, which if anything is a barcode, that's a barcode, not excluded by your interpretation of this 01 analysis?

[00:25:11] Speaker 02:
Judge Toronto, that was the contention that was made by Kathy.

[00:25:15] Speaker 02:
In the briefs in this case, there is no support

[00:25:18] Speaker 02:
anywhere in the record that the way a barcode works is that the modules are read as bits and then translated into alphanumeric characters.

[00:25:30] Speaker 02:
It's an optical code and that optical code and that image is recognized as mapping to an alphanumeric character.

[00:25:39] Speaker 02:
A big code.

[00:25:41] Speaker 02:
is certainly read that way, where the individual coding segment, the identical size of geometry, has either a dark absorbent bank or a light reflective bank.

[00:25:53] Speaker 02:
And it is interpreted individually as either a 0 or a 1.

[00:25:58] Speaker 02:
But there is no evidence in this record, and my friend Mr. Carson will not stand up and point to any, to suggest that the way a barcode is read

[00:26:06] Speaker 02:
is on a module by module basis.

[00:26:11] Speaker 02:
We all agree that the way that what defines that barcode is that it is constructed from bars and spaces of variable width.

[00:26:24] Speaker 02:
That is K.P.'

[00:26:25] Speaker 02:
's position as well in the Blue Breed.

[00:26:28] Speaker 02:
It is not anyone's position other than Dr. Singho's.

[00:26:33] Speaker 03:
Suppose that I thought that I don't

[00:26:37] Speaker 03:
the word or the phrase constructed from is so unclear.

[00:26:42] Speaker 03:
I just don't know what it means.

[00:26:45] Speaker 02:
May I respond to that?

[00:26:48] Speaker 02:
I believe that what it means is if you are a barcoder and you have your toolkit, you reach into it and you have six

[00:26:58] Speaker 02:
seven, eight different tools in there.

[00:27:00] Speaker 02:
You have, constituting these symbols, a variable width, bars and spaces.

[00:27:06] Speaker 02:
If you're a bit coder, you only have two in your toolkit.

[00:27:12] Speaker 02:
It's just a dark reflective ink, and it's a light, excuse me, a dark absorbent ink, a light reflective ink.

[00:27:20] Speaker 02:
One represents a zero, the other represents a one, and never the twain shall meet.

[00:27:25] Speaker 02:
That was the basis on which all of the submissions in the EPO, in the district court, and even in this court that Kathy said, this is what distinguishes the Yarsh reference, our inventor,

[00:27:40] Speaker 02:
who is the lead author on the publication at issue and who wrote the code, the virtual code that's accused here.

[00:27:50] Speaker 02:
That was the basis on which they distinguished the artist's reference, that it only ever has zeros and ones.

[00:27:57] Speaker 02:
It doesn't have these patterns formed by bars and spaces at variable width.

[00:28:04] Speaker 02:
anomaly at the heart of this argument is that if they are right and if all we have to do is abstract a barcode down to individual bits of zeros and ones and do the same with bitcodes, then there's no difference between barcodes and bitcodes.

[00:28:22] Speaker 02:
And that contradicts every position that KP has ever taken and every brief that has been submitted in this case where it's been clear that there is a clear distinguish.

[00:28:34] Speaker 02:
distinction, excuse me, between a bar code and a bid code.

[00:28:39] Speaker 02:
And so I would submit that to finish my earlier answer to Judge Clevenger's question, that the, that the... Kennedy And your argument is that your accused advice is a bid code.

[00:28:53] Speaker 02:
Well, it's not just that.

[00:28:55] Speaker 04:
It is that the... Kennedy It's a bid code even though it visually has bars of different width.

[00:29:01] Speaker 02:
Well, I would put it a little different.

[00:29:03] Speaker 00:
Can I answer your question?

[00:29:04] Speaker 00:
It's a bit code because of the optical way in which it's read.

[00:29:07] Speaker 02:
A bit code is an optical way?

[00:29:09] Speaker 00:
Yours is a bit code because of the optical way in which it is read.

[00:29:13] Speaker 02:
That's correct.

[00:29:14] Speaker 02:
It only has two symbols, zeros and ones.

[00:29:17] Speaker 00:
Red is only two zeros, as zeros and ones.

[00:29:21] Speaker 00:
But it could be optically read differently because there aren't spaces and because there are variable bars, right?

[00:29:30] Speaker 00:
There's variable width bars in your code, right?

[00:29:35] Speaker 02:
No, I don't agree with that, Judge Stoll.

[00:29:37] Speaker 02:
I'm sorry.

[00:29:38] Speaker 02:
This is understood.

[00:29:41] Speaker 02:
The circumference of the capsule is divided into 140 equal size segments.

[00:29:48] Speaker 02:
Undisputed.

[00:29:49] Speaker 02:
Each one of those segments is assigned either a zero value bit or a one value bit.

[00:29:56] Speaker 02:
Undisputed.

[00:29:58] Speaker 02:
When that code is read, it is read sequentially, and each individual bit is extracted from those segments of identical size.

[00:30:08] Speaker 02:
That's how YARSH works.

[00:30:10] Speaker 02:
That's how the virtual code works.

[00:30:12] Speaker 00:
Do I misunderstand that YARSH has spaces?

[00:30:15] Speaker 00:
between its bars that yours has spaces between the bars no this was a this was a

[00:30:26] Speaker 02:
This was a mistake that was made by CAFE and by its expert.

[00:30:31] Speaker 02:
They misread the arched reference very badly.

[00:30:35] Speaker 02:
They contend that the intermediate surfaces, I believe that's what you're referring to, Judge Stoll, that the intermediate surfaces, there are intermediate surfaces between rectangles, and that the rectangles

[00:30:48] Speaker 02:
are the coding elements, ones and zeros, and that the intermediate surfaces are this neutral zone that has no coding information.

[00:31:00] Speaker 02:
That is what Dr. Singho said.

[00:31:02] Speaker 02:
That is what is said over and over again in the blue brief, and it's wrong.

[00:31:07] Speaker 02:
And all one needs to do

[00:31:08] Speaker 02:
inarguably wrong, because all one needs to do is look at the harsh reference, and it specifically and clearly states that the intermediate service.

[00:31:22] Speaker 02:
Page.

[00:31:23] Speaker 02:
I'm sorry?

[00:31:24] Speaker 02:
Page.

[00:31:25] Speaker 02:
Yes, thank you.

[00:31:26] Speaker 02:
It is the appendix at 2978, lines 8 through 15.

[00:31:37] Speaker 02:
2978.

[00:31:39] Speaker 02:
Eight through 15.

[00:31:42] Speaker 02:
You can see at line one, excuse me, around line.

[00:31:50] Speaker 02:
Yes.

[00:31:51] Speaker 02:
There's a reference on line 8 to the intermediate surfaces having flat mirroring and or diffusing properties.

[00:31:59] Speaker 02:
And then if you skip down to line 15, it says exactly what that is.

[00:32:03] Speaker 02:
The flat mirroring or flat reflective diffusing surfaces are signed bit 1.

[00:32:10] Speaker 02:
Okay?

[00:32:11] Speaker 02:
That is directly contrary to the Singho's declaration and to the statements all over the blue brief at 24, 53, 56, 60.

[00:32:22] Speaker 02:
And it's the cornerstone, Your Honors, and I'm sorry, I'm over my time, but I'll finish now.

[00:32:31] Speaker 02:
But it's the... Sotomayor.

[00:32:33] Speaker 03:
Finish your two sentences.

[00:32:34] Speaker 02:
Thank you, Judge Taranto.

[00:32:36] Speaker 02:
It is the cornerstone of CAFE's argument

[00:32:40] Speaker 02:
that the Yorush reference and the accused virtual codes are different is that mistaken reading, that inarguably wrong reading of the Yorush reference.

[00:33:00] Speaker 03:
Thank you.

[00:33:01] Speaker 02:
Thank you very much for your time.

[00:33:11] Speaker 01:
Thank you for the court's generosity in giving me three minutes.

[00:33:15] Speaker 01:
Since we're in Yarish, I'd like to call the court's attention to the following page, 2979, which is page nine of the Yarish reference.

[00:33:25] Speaker 01:
And at about line seven, there's a couple of sentences that say, on figure five, the light beam 74 from the light source L touches the mirror surface of the code, parentheses, small rectangle 81.

[00:33:42] Speaker 01:
The Yaris here tells us that the code is the small rectangle.

[00:33:46] Speaker 01:
And it goes on and is reflected into a reflective beam 76 to the sensor S with high intensity.

[00:33:53] Speaker 01:
A bit such as zero or one, both in quotes, is thereby provided to the control unit.

[00:33:59] Speaker 01:
That's a bit code.

[00:34:01] Speaker 01:
It's not relying at all or containing any variable width whatsoever.

[00:34:08] Speaker 01:
And that's absolutely consistent with what we've said to the EPO.

[00:34:12] Speaker 01:
what we've said to the district court, what we've said to this court.

[00:34:15] Speaker 01:
There is no incorrect statement there.

[00:34:19] Speaker 03:
Has the litigation in this case in district court proceeded to the stage at which invalidity contentions were submitted?

[00:34:26] Speaker 01:
I believe invalidity contentions were submitted, Your Honor.

[00:34:30] Speaker 03:
Dependent on the claim construction or the preceding it?

[00:34:34] Speaker 01:
Yes, they are.

[00:34:35] Speaker 01:
They are dependent on the claim construction, obviously, here.

[00:34:38] Speaker 01:
And we'd ask, well,

[00:34:41] Speaker 01:
Candidly, I think the definition that we proffered as the correct one for Plain Normandy meeting essentially dispatches of a dispute over whether it's a barcode or not.

[00:34:52] Speaker 01:
But nevertheless, we would ask that the court remand for further proceedings.

[00:34:59] Speaker 01:
To just address the question of whether or not.

[00:35:02] Speaker 03:
I just want to be sure you understood my question right, because something you just said at the end suggests maybe you didn't.

[00:35:08] Speaker 03:
I asked about invalidity.

[00:35:10] Speaker 01:
Yes, in the living.

[00:35:11] Speaker 01:
Yes.

[00:35:11] Speaker 01:
Yes, your honor.

[00:35:12] Speaker 03:
Because if you get a very broad construction.

[00:35:14] Speaker 03:
for our construction to be an ability problem.

[00:35:17] Speaker 01:
I understand that, Your Honor.

[00:35:18] Speaker 01:
But remember, the claim at issue that was the subject of the novelty proceeding in the EP was a vastly different claim than what we're looking at here.

[00:35:28] Speaker 01:
These are method claims and system claims, whereas the claim at issue in the EP proceeding was simply the packet capsule, so the single service copy beverage.

[00:35:40] Speaker 01:
So there are additional limitations and additional things that

[00:35:44] Speaker 01:
would be considered.

[00:35:45] Speaker 01:
In addition to that, I just want to dispatch you one thing.

[00:35:49] Speaker 01:
I thought I heard my learned friend Mr. Barsky say that there are no bars of variable lift.

[00:35:56] Speaker 01:
I'm holding up APPX 3358, which is an image of the Virtuo capsule.

[00:36:02] Speaker 03:
Everything for him depends on how it's read.

[00:36:05] Speaker 01:
Exactly.

[00:36:05] Speaker 01:
And all that's downstream.

[00:36:08] Speaker 01:
That's how it's processed.

[00:36:09] Speaker 01:
And again, we get right back to what I talked about in terms of the visitor badge.

[00:36:13] Speaker 01:
If this gets read as independent zeros or ones, then this thing, which we all agree is a barcode, ain't a barcode.

[00:36:20] Speaker 01:
And that just can't be.

[00:36:22] Speaker 03:
Is he right that there's no evidence in this record of how, for example, the uniform product code is read?

[00:36:28] Speaker 03:
Is it read, module by module?

[00:36:31] Speaker 03:
Continue that for five more words, module.

[00:36:34] Speaker 01:
Unfortunately, I can't answer your question.

[00:36:36] Speaker 01:
I don't know exactly how it's read.

[00:36:38] Speaker 01:
And in fact, there is a companion case that's continuing and we expect that we will be able to

[00:36:49] Speaker 01:
I'm sorry.

[00:36:50] Speaker 01:
And we expect to get the source code to see exactly what that post-processing is.

[00:36:56] Speaker 01:
But, Your Honor, if you're shopping at Target and the lights go out, everything still has a barcode, even if it's not red.

[00:37:03] Speaker 03:
You have exhausted your time.

[00:37:05] Speaker 01:
I am over time.

[00:37:06] Speaker 01:
I apologize.

[00:37:07] Speaker 01:
Thank you.

[00:37:07] Speaker 03:
Thank you, Your Honor.

[00:37:08] Speaker 02:
Thank you very much.

[00:37:13] Speaker 04:
May I just say, Collegial Admin Service in front of our court, I appreciate