[00:00:00] Speaker 01:
Our next case is 21-2345 SSI Technologies LLC versus Dongguan Xinguan Electronic Mechanical Limited.

[00:00:14] Speaker 01:
Mr. Brunner, you have reserved five minutes of time for rebuttal, correct?

[00:00:19] Speaker 01:
That's correct.

[00:00:20] Speaker 01:
Mr. Kuo, you reserved three minutes of your time for your cross appeal?

[00:00:27] Speaker 01:
Yes, sir.

[00:00:27] Speaker 01:
Okay.

[00:00:29] Speaker 01:
All right, Mitch, you may begin.

[00:00:32] Speaker 04:
May it please the court.

[00:00:33] Speaker 04:
Good morning.

[00:00:34] Speaker 04:
I'm Shane Brunner for SSI.

[00:00:36] Speaker 04:
This court should vacate the district court's non-infringement rulings regarding the 038 patent.

[00:00:42] Speaker 04:
The district court erred first by misconstruing the claim term filter by improperly importing a tiny openings requirement from the specification.

[00:00:53] Speaker 04:
Second, the district court disregarded what is undisputed evidence that the DZEM sensor rubber cover blocks bubbles larger than the openings from entering the sensing area.

[00:01:06] Speaker 04:
It performs the function of the claim.

[00:01:09] Speaker 04:
Regarding the 153 patent, the district court erred by first concluding that the DZEM sensor does not measure volume at all, when in fact it's undisputed that it does.

[00:01:21] Speaker 04:
And second,

[00:01:22] Speaker 04:
The court misconstrued claim one to require that the measured volume be an input into the concentration calculation, when in fact what the claim says is that the dilution is detected while the measured volume decreases.

[00:01:41] Speaker 04:
The measured volume is not part of the calculation of concentration, which is based on time of flight and temperature.

[00:01:51] Speaker 02:
Counsel, do you contend that the district court's construction of filter is overly dependent on dictionary definitions?

[00:01:58] Speaker 04:
Well, I think what the court did there was kind of cherry pick the dictionary definition.

[00:02:03] Speaker 04:
So the dictionary definitions of filter say many things, such as just excluding unwanted parts, things made of many materials.

[00:02:12] Speaker 04:
And then it says examples are things like

[00:02:14] Speaker 04:
mesh and gauze and paper and things like that that can be filters.

[00:02:18] Speaker 04:
But filter is definitely a broader term than that, as the dictionary definitions show, and even how SSI's intrinsic record reveals that filter is a broader term than what the court did with the dictionary definitions.

[00:02:32] Speaker 04:
This court's case law says, to the extent the dictionary definitions are consistent with the intrinsic record,

[00:02:39] Speaker 04:
You're entitled to the full scope of those dictionary definitions.

[00:02:42] Speaker 04:
Yet, again, the court cherry picked to kind of hone in on this tiny openings requirement, which came from a disclosure of a preferred embodiment where the applicant or the patentee assessed a 100 micron filter and said, hey, that works.

[00:02:59] Speaker 04:
That worked well for us.

[00:03:00] Speaker 04:
That's an example.

[00:03:01] Speaker 04:
And then the court said, the court recognized then at the same time it's improper

[00:03:07] Speaker 04:
to import limitations from the preferred embodiment into the claims, but then to get around that says, well, I'm not going to say 100 micron openings are what's required, but they have to be tiny.

[00:03:20] Speaker 02:
Do you contend it's your best intrinsic support for your proposed definition of filter?

[00:03:26] Speaker 04:
Well, our proposed definition of filter would be supported by, I think there's a couple things you can look at.

[00:03:32] Speaker 04:
One, you look at the summary of the invention, and it talks about, generally, a filter that blocks or inhibits bubbles from entering the sensing area.

[00:03:40] Speaker 04:
Then we look at the specification on the detailed description.

[00:03:44] Speaker 04:
In the detailed description, it talks about there are filters that, it says, in one embodiment, a filter might be a mesh.

[00:03:55] Speaker 02:
Does that power the line?

[00:03:56] Speaker 04:
Pardon me?

[00:03:57] Speaker 02:
Column and line number?

[00:03:58] Speaker 04:
Oh, that would be in, let me see, I do have that here.

[00:04:12] Speaker 04:
Right, so in column four,

[00:04:14] Speaker 04:
line number 51, it says, in some embodiments, the filter includes a mesh or one or more mesh screens.

[00:04:23] Speaker 04:
Claim 14 says, is a dependent claim on claim nine, and it says where in the filters mesh.

[00:04:30] Speaker 04:
So presumably, filter is not limited to mesh or these particular tiny embodiments based on the claim differentiation doctrine.

[00:04:40] Speaker 04:
I think further description of the

[00:04:43] Speaker 04:
in column five of the preferred embodiment where the hundred micron filter is discussed.

[00:04:49] Speaker 04:
It talks about exactly what goes on here.

[00:04:52] Speaker 04:
The filter allows bubbles larger than the openings

[00:04:57] Speaker 04:
It prohibits bubbles larger than the openings from getting through and entering the sensing area, but the smaller bubbles do get through.

[00:05:04] Speaker 04:
That's just a known characteristic of filter.

[00:05:07] Speaker 04:
There's nothing you can do about it, and really it's one of these things that in a filtered design, you're looking at two different concepts.

[00:05:14] Speaker 04:
One, you want to maximize the exchange of the fluid in the sensing area.

[00:05:19] Speaker 04:
You want to maximize that rate.

[00:05:21] Speaker 04:
At the same time, you want to exclude bubbles.

[00:05:23] Speaker 04:
They're trade-offs.

[00:05:24] Speaker 04:
You give one up for the other.

[00:05:26] Speaker 04:
And one thing I should mention, too, is in our construction of filter, what our constructions blocks and separates.

[00:05:36] Speaker 04:
And from the beginning, our expert and all through our claim construction briefing, we've made it clear that that means size exclude.

[00:05:43] Speaker 04:
And when I look back at the briefing, I thought maybe it deserves a little more explanation of how we get to that and how we got to that.

[00:05:49] Speaker 04:
So blocking, to determine whether a device is a filter,

[00:05:53] Speaker 04:
you look at what's going on at the point of the openings.

[00:05:57] Speaker 04:
And at the point of the openings, are the bubbles blocked by the opening?

[00:06:02] Speaker 04:
Are they too large to get in the opening?

[00:06:04] Speaker 04:
And are they separated at that time from the fluid that's allowed to go through the opening and get into the sensing area?

[00:06:11] Speaker 04:
So that's where block and separating comes in and how it means that size excludes bubbles from entering the sensing area.

[00:06:19] Speaker 00:
Could I turn you to the 53 patent?

[00:06:23] Speaker 00:
What in the claim limitation that has the A and B, the Marquish group, focusing on B, what, in your view, is the work that's done by the word measured?

[00:06:38] Speaker 04:
So the work that's done by measured is that the volume is- Can you put it this way?

[00:06:46] Speaker 00:
Suppose that the word measured were not in there.

[00:06:49] Speaker 00:
Would this claim, in your view, the proper reading of this claim, be any different?

[00:06:54] Speaker 04:
Well, yeah, it would be different because it has to measure volume.

[00:06:58] Speaker 04:
The device has to measure the volume.

[00:07:01] Speaker 04:
That's how the controller knows that the volume's decreasing.

[00:07:04] Speaker 00:
And what way does the accused device measure volume?

[00:07:10] Speaker 04:
The accused device measures volume by, it has a float sensor.

[00:07:16] Speaker 04:
The float rises with the level of the fluid.

[00:07:18] Speaker 04:
And then it knows the dimension of the tank.

[00:07:21] Speaker 04:
So based upon the controller knows the dimensions of the tank.

[00:07:25] Speaker 04:
So when it says that fluid has at such a level, it knows what the volume is because it knows the tank size.

[00:07:34] Speaker 00:
And the determination that the measurement is

[00:07:40] Speaker 00:
indicates that the fluid is decreasing, that is part of the claim limitation as you view it?

[00:07:47] Speaker 04:
Correct.

[00:07:50] Speaker 04:
And we know from DZEM's admissions to findings of factor that they admit that the DZEM sensor measures the volume of the tank.

[00:08:01] Speaker 04:
And that's at the appendix at 1565.

[00:08:09] Speaker 00:
The volume of the tank or the volume of the fluid in the tank?

[00:08:12] Speaker 04:
I misspoke.

[00:08:13] Speaker 00:
You mean the volume of the fluid in the tank?

[00:08:15] Speaker 04:
Yeah, right.

[00:08:16] Speaker 00:
The volume of the tank is fixed, but the volume of the fluid is very small.

[00:08:20] Speaker 04:
You're correct, Your Honor.

[00:08:21] Speaker 04:
I misspoke.

[00:08:22] Speaker 01:
Does measuring occur and can only occur when there's a decrease in the volume of the liquid?

[00:08:31] Speaker 04:
It is measuring the decrease of the volume of the fluid.

[00:08:36] Speaker 04:
That's what's taking place when the system's running.

[00:08:40] Speaker 04:
The volume is decreasing, and it is repeatedly measuring, seeing that the volume is decreasing.

[00:08:47] Speaker 04:
So it keeps measuring it and reporting that information to the controller, which understands that it's continuing to measure and that the volume is decreasing.

[00:09:01] Speaker 00:
And that determination is part of the

[00:09:07] Speaker 00:
various factors that go into an assessment as to whether there is a contaminant.

[00:09:14] Speaker 00:
Correct.

[00:09:15] Speaker 00:
So what the system does... That is one of the factors on which the determination of the contaminant is based?

[00:09:24] Speaker 04:
Correct.

[00:09:25] Speaker 04:
Right.

[00:09:25] Speaker 04:
So the system takes into consideration the time of flight of the signal.

[00:09:31] Speaker 04:
It takes into consideration the temperature.

[00:09:33] Speaker 00:
And we're talking about the accused device here, not the clay.

[00:09:37] Speaker 00:
The Q's device does all these things?

[00:09:40] Speaker 04:
Correct.

[00:09:40] Speaker 04:
The Q's device measures the time of flight of the signal.

[00:09:46] Speaker 04:
also considers the temperature, and then it considers the measured volume.

[00:09:51] Speaker 04:
It can detect the dilution that is a specific type of contaminant.

[00:09:56] Speaker 04:
It is the addition of water, too much water, to the diesel exhaust fluid, and it makes that consideration while the measured volume is decreasing, and the system is running.

[00:10:09] Speaker 00:
That's where I want to make sure I understand what you're saying, because the way I put it,

[00:10:17] Speaker 00:
wasn't wild, but instead based on it.

[00:10:20] Speaker 00:
So is there a factor, is the decreasing volume a factor in the determination of whether there is dilution?

[00:10:35] Speaker 04:
So if based on, as we understand it, is something that is taken into consideration by the system, our position is that the

[00:10:46] Speaker 04:
dilution is detected while the measured volume is decreasing.

[00:10:51] Speaker 00:
But is your position that it is not necessary to the detection of the dilution?

[00:10:59] Speaker 04:
Is it not necessary to the detection?

[00:11:02] Speaker 00:
I mean, I think we're getting into the area of splitting hairs here.

[00:11:07] Speaker 00:
And I just want to make sure that I know which side of the split you're arguing for.

[00:11:16] Speaker 00:
Sometimes I'm hearing you say, yes, it's a factor that has to be taken into account in order to make a determination as to dilution.

[00:11:23] Speaker 00:
And sometimes I'm hearing you say, well, it has to occur while there's a decrease.

[00:11:27] Speaker 00:
But the decrease is irrelevant to the determination of the dilution.

[00:11:34] Speaker 04:
Is it A or is it B?

[00:11:36] Speaker 04:
OK, so I think I understand.

[00:11:38] Speaker 00:
OK, but I need to know whether it's A or B.

[00:11:43] Speaker 04:
The concentration calculation is based upon the time of flight.

[00:11:47] Speaker 00:
It would be helpful to me if you'd start out by saying it's either A or B, and then we can explain why.

[00:11:55] Speaker 04:
So I don't remember exactly how you phrased A or B. Let me try to make it short.

[00:12:00] Speaker 00:
Sure.

[00:12:01] Speaker 00:
Is it either that it so happens that the measured volume is decreasing when the determination is made versus that the determination

[00:12:12] Speaker 00:
of the measurement is necessary to determination of the dilution.

[00:12:18] Speaker 00:
That's A and B, respectively.

[00:12:21] Speaker 04:
The determination of the measurement is not required to determine that there is a contaminant.

[00:12:30] Speaker 04:
It is an extra factor that is used in the determination of the contaminant.

[00:12:37] Speaker 00:
Used in the determination of the contaminant sounds an awful lot like

[00:12:41] Speaker 00:
the determination of the contaminant is based in part on that factor.

[00:12:47] Speaker 00:
I don't understand what used in the determination mean if it doesn't mean based on, in part, at least.

[00:12:55] Speaker 04:
Yeah, so our position is that it is based on that the controller considers the measured volume decreasing when it detects the dilution.

[00:13:05] Speaker 00:
So it's not just while.

[00:13:06] Speaker 00:
It has to be based on the

[00:13:10] Speaker 00:
the change based on the change in the volume as measured?

[00:13:16] Speaker 04:
It is based on the change.

[00:13:19] Speaker 04:
It's based on detecting a dilution while the measured volume is decreasing.

[00:13:25] Speaker 04:
So the measured volume is decreasing is really just temporal.

[00:13:29] Speaker 02:
It's not a... It sounds like you're blending A and B. Now maybe I'm mishearing it, but I'm hearing a blend.

[00:13:35] Speaker 04:
Are you referring to A and B in the claim or A and B under the sentence?

[00:13:40] Speaker 02:
I'm talking about A and B in what Judge Bryson was discussing with you.

[00:13:43] Speaker 02:
It sounded like you're kind of blending the two together.

[00:13:45] Speaker 02:
I might be mishearing it, but that's what I'm hearing, just telling you what I'm hearing.

[00:13:50] Speaker 00:
That's what I was hearing as well.

[00:13:51] Speaker 00:
I'm now a bit confused.

[00:13:54] Speaker 00:
So if you could give us as precisely as you can the distinction

[00:13:59] Speaker 00:
that you see between the while and, if this is a correct characterization, while and the based on, if that's the distinction you're drawing?

[00:14:10] Speaker 04:
So to us, based on means taking into consideration.

[00:14:15] Speaker 04:
It takes into consideration time of flight, temperature, and it takes into consideration detection of dilution while the measured volume is decreasing.

[00:14:26] Speaker 04:
that's what's taken into consideration.

[00:14:28] Speaker 01:
It takes it into consideration as a factor as one of the criteria in order to get the ultimate calculation you have to measure and then that factor that measurement of the decrease in the solution that's a factor that's used in the calculus in the overall calculus

[00:14:47] Speaker 04:
It is not part of the calculation.

[00:14:49] Speaker 04:
It is a feature of the claim.

[00:14:53] Speaker 04:
It is a feature of the product.

[00:14:56] Speaker 04:
It detects the dilution while the measured volume decreases.

[00:14:59] Speaker 00:
And while the measured volume is decreasing, it's simply saying that the volume decreases any time the engine is running?

[00:15:08] Speaker 04:
That is when it's a closed system and the engine is running, the volume is decreasing.

[00:15:14] Speaker 00:
So you think that the measured

[00:15:17] Speaker 00:
uh... volume of the fluid decreases requirement is satisfied as long as the engine is running and the volume is decreasing but it's going to be decreasing if the engine is running.

[00:15:28] Speaker 00:
It's a one factor test.

[00:15:30] Speaker 00:
Is the engine running and you've satisfied as far as you're concerned the measured volume of the fluid decreases limitation.

[00:15:38] Speaker 04:
But it has to be able to detect the dilution.

[00:15:41] Speaker 04:
It has to be able to detect that the addition of water that the

[00:15:46] Speaker 04:
diesel exhaust fluid is underconcentrated.

[00:15:54] Speaker 01:
Any other questions?

[00:15:56] Speaker 04:
If you don't have any more questions at this point, I'll save my time for a while.

[00:15:59] Speaker 01:
Okay, we'll restore all your rebuttal time.

[00:16:05] Speaker 03:
Mr. Kuo.

[00:16:07] Speaker 03:
Morning, honors.

[00:16:08] Speaker 03:
I'd like to first talk about 153 patents, since that's what we were just discussing.

[00:16:16] Speaker 03:
You have it exactly right.

[00:16:18] Speaker 03:
The claim requires that the controller is configured to perform certain calculations based on certain factors.

[00:16:28] Speaker 03:
One of those factors is if a dilution is detected while the measured volume is decreasing, the DSM sensor only uses time of flight and temperature.

[00:16:42] Speaker 03:
That is undisputed.

[00:16:45] Speaker 03:
what SSI has argued is, but it happens at the same time.

[00:16:48] Speaker 03:
It happens while the engine is running, but that's not what the claim says.

[00:16:53] Speaker 03:
The claim doesn't just mean that one thing happens while another, and the two are not dependent upon one another.

[00:17:03] Speaker 03:
As your honor said, the decrease in the volume is irrelevant to the calculation of whether a contaminant is present.

[00:17:13] Speaker 03:
It just so happens to occur at the same time.

[00:17:17] Speaker 00:
Now, is it the case that the DSM does, in fact, measure the decrease in volume or measure the volume at different points?

[00:17:24] Speaker 03:
Sure, it does.

[00:17:26] Speaker 03:
It does.

[00:17:26] Speaker 03:
But it doesn't use it as part of the contaminant detection.

[00:17:33] Speaker 03:
I mean, for the most part, what SSI is trying to do is read out or come up with a definition based on that

[00:17:44] Speaker 03:
I'm really not clear on what their definition of based on really is.

[00:17:50] Speaker 03:
It seems to be that based on requires that it is a dependent factor.

[00:17:57] Speaker 03:
And it's undisputed that the DSM sensor calculates whether a contaminant is present only based on the inputs of time of flight and fluid temperature.

[00:18:10] Speaker 03:
While those two factors are the only thing that say yes or no,

[00:18:14] Speaker 03:
The fact that it happens while the engine is running is a completely separate question, and has nothing to do with the actual determination of the contaminant being present.

[00:18:27] Speaker 03:
Unless you have other questions on the 153, I'd like to switch to the 038.

[00:18:30] Speaker 03:
OK.

[00:18:33] Speaker 01:
So what happens if we affirm the course construction on the 153 patent?

[00:18:37] Speaker 01:
What happens to the rest of the case?

[00:18:40] Speaker 03:
Well, there are a lot of factors in the case, with respect to the 153.

[00:18:42] Speaker 01:
There's quite a few factors.

[00:18:45] Speaker 03:
Yeah.

[00:18:45] Speaker 03:
I mean, it depends on what your honors do with the 038 and our torsus interference claim and the invalidity.

[00:18:53] Speaker 03:
I mean, certainly, if you affirm the 153 non-infringement, I'm going to be happy about that.

[00:18:57] Speaker 03:
But it's not going to, depending on what your honors do.

[00:19:02] Speaker 00:
Well, it would affect, for example, what we do with the invalidity.

[00:19:06] Speaker 00:
Because then the invalidity would certainly come to life.

[00:19:09] Speaker 03:
Sure.

[00:19:10] Speaker 03:
So with respect to the invalidity, and we can go to that.

[00:19:14] Speaker 00:
Well, I don't know what sends you off into it.

[00:19:18] Speaker 00:
But as you like, why don't you proceed with the O38 if that's what you want to get to?

[00:19:24] Speaker 03:
Yeah, why don't we do that?

[00:19:24] Speaker 03:
Because then both invalidities kind of go together.

[00:19:27] Speaker 03:
With respect to the O38, the court construed filter exactly like it should have construed filter.

[00:19:35] Speaker 03:
All the intrinsic evidence talks about a screen of some sort with small holes that allow liquid to pass through, but keep bubbles out, keep anything bigger than those holes.

[00:19:51] Speaker 03:
And the only embodiment that's disclosed, it's not just a preferred embodiment, it's the only embodiment that's disclosed is a mesh.

[00:19:59] Speaker 03:
Now, the district court correctly said that we're not importing that mesh limitation into the claims.

[00:20:07] Speaker 03:
But we have to look at the patent as a whole and see what it teaches.

[00:20:12] Speaker 03:
And what is the scope of that patent?

[00:20:14] Speaker 01:
And the only disclosure... Does the court import a size limitation of any kind?

[00:20:18] Speaker 03:
It did not.

[00:20:19] Speaker 03:
It did not.

[00:20:20] Speaker 03:
It just said it's porous and porous

[00:20:24] Speaker 03:
It didn't actually find porous, but I think people understand porous to mean it's full of lots of tiny little holes.

[00:20:31] Speaker 03:
I mean, a filter is not an unusual word.

[00:20:37] Speaker 01:
I'm sure your honor... Porous is not a limitation?

[00:20:40] Speaker 01:
I'm sorry?

[00:20:40] Speaker 01:
Did you say that porous is not a limitation?

[00:20:44] Speaker 03:
Porous is a limitation, according to court construction.

[00:20:47] Speaker 03:
But you asked me if they had put a size constraint in there.

[00:20:51] Speaker 00:
It did not.

[00:20:54] Speaker 00:
just a humble example, a kitchen colander.

[00:20:59] Speaker 00:
It allows the water to go through, but the spaghetti stays in the colander.

[00:21:03] Speaker 00:
Is that a filter?

[00:21:05] Speaker 03:
I think in that context, it would be a filter.

[00:21:07] Speaker 03:
It depends on what you're filtering.

[00:21:09] Speaker 00:
Well, my next question would be suppose that you've got a colander that has, let's say, two millimeter holes, size holes, and you want to use it to filter vegetables.

[00:21:22] Speaker 00:
So you pour the

[00:21:23] Speaker 00:
vegetables in the water into the colander and out goes the water and vegetables stay there.

[00:21:27] Speaker 00:
Is it a filter?

[00:21:29] Speaker 03:
It's filtering out the vegetables.

[00:21:30] Speaker 03:
Correct.

[00:21:31] Speaker 00:
Right.

[00:21:31] Speaker 00:
So if a few of the vegetables, the pieces of the vegetables are small enough to go through, but the bulk of the vegetables stay in the colander, still a filter, right?

[00:21:42] Speaker 03:
Well, there's an additional part of the claim.

[00:21:44] Speaker 03:
It's not simply a filter.

[00:21:46] Speaker 00:
I know.

[00:21:47] Speaker 00:
Let's stay with my hyper filter.

[00:21:49] Speaker 00:
It really is performing the function of a filter.

[00:21:52] Speaker 00:
It is a filter, right?

[00:21:55] Speaker 03:
I suppose this is a problem with respect to the claim in general.

[00:21:59] Speaker 00:
Well, I want an answer to the hypo before we jump back in.

[00:22:04] Speaker 03:
It is a filter for those larger vegetable pieces.

[00:22:07] Speaker 03:
Correct.

[00:22:07] Speaker 03:
That is correct.

[00:22:09] Speaker 03:
And so it comes down to what your goal is.

[00:22:11] Speaker 03:
If your goal is to filter out

[00:22:14] Speaker 03:
everything but, I don't know, the little tips of broccoli that might get through, then sure, you have a filter.

[00:22:22] Speaker 03:
But if those tips of broccoli that get through, just a different example following your cooking hypothetical.

[00:22:28] Speaker 03:
So if you're making a jam out of raspberries and you grind up the raspberries and you put it through a colander with larger holes and all the seeds get through,

[00:22:38] Speaker 03:
That's not serving the purpose that you had intended.

[00:22:41] Speaker 03:
You want to get those seeds out.

[00:22:42] Speaker 03:
So you would then have a filter with a much smaller size.

[00:22:49] Speaker 03:
In the context of the patent, they talk about how they've discovered through empirical testing that bubbles of a certain size that are smaller than a certain size are OK.

[00:23:03] Speaker 03:
But that certain type of 100 microns is 1,000 times larger, I'm sorry,

[00:23:08] Speaker 03:
a thousand times smaller than the holes that are actually in the d-zone sensor.

[00:23:14] Speaker 00:
Where do you draw the line, though?

[00:23:16] Speaker 03:
I don't know.

[00:23:16] Speaker 00:
I mean, suppose it were 10 times as large.

[00:23:19] Speaker 03:
I think there is a substantial indefinite in this problem with these claims, but that's not what we're here about.

[00:23:27] Speaker 03:
And I agree.

[00:23:28] Speaker 03:
I agree there's a problem with that.

[00:23:30] Speaker 03:
But with respect to what a filter means, a filter in all aspects is still a porous structure with a bunch of little holes

[00:23:38] Speaker 03:
When I mean little, they're of a size that prevent what you're trying to prevent.

[00:23:44] Speaker 00:
But as I understand it, the patent acknowledges that some bubbles will be so small that they will get through.

[00:23:53] Speaker 03:
It does say that.

[00:23:55] Speaker 00:
So what's the difference between a few bubbles get through versus somewhat more bubbles get through?

[00:24:01] Speaker 03:
Well, that was one of the constructions that we had proposed at the lower court, which to the extent that you have to substantially prohibit

[00:24:09] Speaker 03:
has any meaning, it has to be prohibited to the extent that it doesn't have a detrimental effect to the operation of filter.

[00:24:18] Speaker 03:
The court didn't seek to construe that particular claimantation.

[00:24:25] Speaker 01:
Did the court add requirements that the pore structure have not relatively large pores, that the filter be able to strain the liquid, and that whatever gets through the filter cannot be vented?

[00:24:39] Speaker 01:
the court made those those those furniture that determination it did not make any finding with respect to that what about the the the other statements i i read that the poor structure have not relatively large wars something that the court added to the construction now that the court's instructions was the a porous structure

[00:25:05] Speaker 03:
SSI has taken it to say, well, porous means tiny.

[00:25:09] Speaker 03:
And therefore, they put in the size limitation.

[00:25:12] Speaker 03:
The court just said it's a porous structure, and then found that the DZEM sensor cannot, that no reasonable jury could find it is a porous structure.

[00:25:22] Speaker 03:
That what?

[00:25:23] Speaker 03:
That no reasonable jury could find that it is a porous structure.

[00:25:25] Speaker 02:
Well, counsel, maybe I'm not remembering correctly the construction, but on Appendix Page 14, I thought

[00:25:32] Speaker 02:
In line with what Judge Raina was saying, it talks about what the construction would be of filter.

[00:25:38] Speaker 02:
And it mentions porous material structure to remove particles that are larger than the pores.

[00:25:43] Speaker 02:
Is this not the construction that I should be looking at?

[00:25:46] Speaker 02:
It is.

[00:25:46] Speaker 02:
On stage 14?

[00:25:47] Speaker 03:
It is.

[00:25:48] Speaker 03:
And that's what I'm saying.

[00:25:50] Speaker 03:
The word tiny isn't in that construction.

[00:25:52] Speaker 02:
OK.

[00:25:53] Speaker 02:
But it says larger, right?

[00:25:54] Speaker 02:
So there is some type of size thing.

[00:25:56] Speaker 02:
I'm just going to

[00:25:57] Speaker 02:
Oh, I'm sorry.

[00:26:00] Speaker 03:
What I meant by sizing, he didn't put a specific number or range.

[00:26:03] Speaker 03:
It's a relative size.

[00:26:08] Speaker 03:
OK.

[00:26:09] Speaker 03:
Unless you have any other questions about the 038 or 153, I'd like to go to our counterclaims.

[00:26:15] Speaker 03:
OK.

[00:26:15] Speaker 03:
With respect to the dismissal of the invalidity claims,

[00:26:27] Speaker 03:
The fact of the matter is that threat still exists of a claim of infringement.

[00:26:34] Speaker 03:
Our client does not simply have a product and never going to change it or enhance it or whatever it might be.

[00:26:41] Speaker 03:
So if they come out with a new product, that's going to be an issue that we will have to face with these patents that for numerous reasons we contend are invalid.

[00:26:54] Speaker 03:
It also would make sense to have, for judicial efficiency, to have had this whole issue decided in front of the district court.

[00:27:04] Speaker 03:
There are a few cases that are cited by SSI where a court did not, or it was okay that they dismissed, are distinguishable from this situation where there was a

[00:27:22] Speaker 03:
covenant not to sue or something to that effect that resolved any kind of future infringement issues, but that's not the case here.

[00:27:32] Speaker 03:
SSI makes an argument about this being dismissal without prejudice, which in my opinion is somewhat of a circular argument because if this court remands the invalidity question back down to the district court or

[00:27:51] Speaker 03:
remains on any of the other issues.

[00:27:54] Speaker 03:
Of course, the invalidity is going to come back into play.

[00:27:59] Speaker 03:
So it is true.

[00:28:02] Speaker 02:
Are you to dismiss without prejudice if we affirm on non-infringement?

[00:28:07] Speaker 03:
Well, if you affirm on non-infringement, the issue, if you affirm on non-infringement, would say that the district court

[00:28:21] Speaker 03:
aired by dismissing our counterclaims as moot, then it would go back regardless of if it had dismissed with or without prejudice.

[00:28:33] Speaker 03:
Does that make sense?

[00:28:35] Speaker 00:
The district court seems to have made a finding, so one sentence, 17 through 18, that there is no showing of any risk of future prosecution.

[00:28:49] Speaker 00:
under either of the patents.

[00:28:52] Speaker 00:
That sounds like the kind of finding that one would make if this had been brought as a declaratory judgment in the first instance.

[00:29:01] Speaker 00:
So in that situation, the district court would dismiss the declaratory judgment action.

[00:29:06] Speaker 00:
Why can't the district court dismiss the counterclaim for the same reasons?

[00:29:10] Speaker 03:
Because you have to look at the time of filing.

[00:29:15] Speaker 03:
when we brought the counterclaim, there was a threat of infringement.

[00:29:19] Speaker 00:
A threat?

[00:29:20] Speaker 03:
Well, not to say threat, an actual allegation of infringement.

[00:29:23] Speaker 00:
Right, as to a particular product.

[00:29:26] Speaker 00:
But on the assumption that the infringement issues go away, all we're left with is the counterclaim for invalidity.

[00:29:34] Speaker 00:
And the question as to that would seem to, of the district courts, either

[00:29:43] Speaker 00:
discretion or even ability to decide that counterclaim would depend on the extent to which there is an ongoing threat.

[00:29:51] Speaker 00:
Where's the evidence that there's an ongoing threat of litigation over these patents?

[00:29:56] Speaker 03:
Well, that's a fair question, Your Honor.

[00:29:59] Speaker 03:
If the current products are deemed to be non-infringing, which obviously I hope you do, there isn't a current threat with respect to those products.

[00:30:10] Speaker 03:
And if that's the case, and we have to wait to have a new product to get sued again, and we have to do it again, it seems that the judicial efficiencies are completely lost when the record has been developed.

[00:30:24] Speaker 03:
It's before the court.

[00:30:26] Speaker 03:
And it can make the decision now in light of this.

[00:30:28] Speaker 00:
Except that that depends on what the likelihood is that you will make a new product that would be more likely to be within the scope of the construed patents.

[00:30:37] Speaker 03:
Well, no, not necessarily within the scope.

[00:30:39] Speaker 03:
Not necessarily more within the scope or less within the scope.

[00:30:43] Speaker 03:
I mean, these are competitors.

[00:30:44] Speaker 00:
If it's the same product or some equivalent product, then you have collateral and stumble on your side.

[00:30:48] Speaker 03:
Right.

[00:30:49] Speaker 03:
Because then we're arguing whether or not they're substantially similar or not substantially similar.

[00:30:54] Speaker 03:
But you're correct, Your Honor, on that.

[00:31:02] Speaker 02:
Do you want to briefly speak to Torsh's interference?

[00:31:04] Speaker 03:
Sure.

[00:31:05] Speaker 03:
Sure.

[00:31:06] Speaker 03:
We've briefed it pretty thoroughly.

[00:31:07] Speaker 03:
I mean, if you have any particular questions on that, I'd rather address those than just kind of go off and talk.

[00:31:14] Speaker 03:
Okay.

[00:31:14] Speaker 03:
So the sources interference claims, there are some letters that were sent to foreign companies that in jurisdictions in which there are no patent, there's no patent coverage.

[00:31:26] Speaker 03:
The only patents that SSI asserted in their letters were a Chinese, some German applications, and US.

[00:31:34] Speaker 03:
But they sent cease and desist letters to a company in the Netherlands, a company in Brazil.

[00:31:41] Speaker 00:
We're getting into an area where I think there's some confidential information, right?

[00:31:46] Speaker 03:
Right.

[00:31:46] Speaker 03:
I'm just trying to say what your name is.

[00:31:48] Speaker 00:
You're steering clear.

[00:31:48] Speaker 00:
OK.

[00:31:48] Speaker 03:
I'm saying clear of names.

[00:31:53] Speaker 03:
And so the district court didn't say, well, that's OK.

[00:31:58] Speaker 03:
It's protected under North Pennington.

[00:31:59] Speaker 03:
They just said that it wasn't concrete enough.

[00:32:04] Speaker 03:
It wasn't concrete enough relationship between DSM and these other companies.

[00:32:10] Speaker 03:
I think that's truly an issue of fact.

[00:32:13] Speaker 03:
Mr. Kirby has submitted a declaration where he said that he had been in discussions with multiple of these companies, including one in the Netherlands.

[00:32:28] Speaker 03:
Whether or not that's enough is up to a trier of facts to determine, and not for the judge to grant a summary judgment.

[00:32:37] Speaker 01:
You're into your rebuttal time.

[00:32:39] Speaker 03:
Unless you have questions, I'll stop there.

[00:32:46] Speaker 03:
Oh, I need to reserve whatever I have left.

[00:32:52] Speaker 01:
Mr. Bruner, we'll reserve, I mean, we'll store five minutes of everybody's time for you.

[00:32:56] Speaker 04:
OK, thank you, Your Honor.

[00:32:57] Speaker 04:
So to address a couple points that came up with Mr. Quote, so the court did really put in a tiny openings requirement because the finding of infringement was

[00:33:07] Speaker 04:
The DZEM filter openings were relatively large, but the specification has tiny openings, therefore it doesn't infringe.

[00:33:15] Speaker 04:
So there really is a tiny openings requirement imported.

[00:33:19] Speaker 04:
What does tiny mean?

[00:33:20] Speaker 04:
That's very vague.

[00:33:21] Speaker 04:
I mean, our position is if you're going to keep a tiny openings requirement, then what that tiny openings requirement can only be limited by is, is it tiny enough to perform the function of the claim, which is to prohibit one or more gas bubbles from entering the sensing area.

[00:33:35] Speaker 04:
So, Judge, you were talking about where do we draw the line?

[00:33:38] Speaker 04:
We draw the line at where does the claim, what does the claim require?

[00:33:42] Speaker 04:
What is the claim function of the filter?

[00:33:45] Speaker 04:
That's where we draw the line.

[00:33:46] Speaker 04:
The undisputed evidence is the DZM sensor does that.

[00:33:50] Speaker 04:
And there was some discussion about, for Mr. Quo, that it was not, that somehow what the bubbles are allowed in made it ineffective.

[00:33:59] Speaker 04:
There's no evidence in the record that there was an ineffective amount.

[00:34:02] Speaker 04:
And the fact that these openings are relatively large in the court's words or larger than what's in the preferred embodiment described in the patent, that's in a sense irrelevant unless you know the context of the filter.

[00:34:16] Speaker 04:
The filter is in a large bubble environment, which Dr. Strezelik showed in her experiments.

[00:34:21] Speaker 04:
then it did sufficiently block those bubbles.

[00:34:24] Speaker 04:
And we know that those, and the only testimony in the record about bubbles that are seen in a diesel exhaust fluid environment are from Dr. Strzelek, and she said, yes, the bubbles I used are the kind that you see in a DEF tank.

[00:34:40] Speaker 04:
So, you know,

[00:34:42] Speaker 04:
We think that the tiny openings requirement is improper.

[00:34:45] Speaker 04:
Mr. Quill also referred to porous.

[00:34:47] Speaker 04:
What does porous mean?

[00:34:48] Speaker 04:
He said a lot of tiny openings.

[00:34:50] Speaker 04:
Again, that's quite vague, but we know from the definition of porous that DZEM relied upon in its briefing said, porous, permeable to fluid.

[00:34:59] Speaker 04:
This filter, the DZEM sensor rubber cover, is permeable to fluid.

[00:35:04] Speaker 04:
That is an appropriate definition of porous.

[00:35:07] Speaker 04:
And so when it comes down to it, the district court's construction isn't all that problematic, as long as we don't limit it to a vague, tiny openings requirement, or that we don't restrict it to mesh or a web, like DSM has argued.

[00:35:23] Speaker 04:
But the express words really aren't problematic.

[00:35:25] Speaker 04:
And as we've said and our experts said from the beginning,

[00:35:29] Speaker 04:
Our constructions are very similar.

[00:35:31] Speaker 04:
It's what's packed in behind that construction that has been the problem when Dee Zemp said a measure, a web.

[00:35:37] Speaker 04:
The court said tiny.

[00:35:38] Speaker 02:
So you're saying you're OK, potentially, with the construction, but it's more so the application of the construction that you're taking issue with?

[00:35:43] Speaker 04:
It's kind of what got packed into it, the tiny openings requirement.

[00:35:47] Speaker 04:
And then the conclusion then that the openings weren't.

[00:35:50] Speaker 02:
You say packed into it.

[00:35:51] Speaker 02:
Does that mean the application of the construction?

[00:35:53] Speaker 04:
I guess, yeah.

[00:35:54] Speaker 04:
I guess that would be the way to say the application of the construction.

[00:35:58] Speaker 04:
You know, the words were fine, and then it turned into, oh, but these openings are relatively large.

[00:36:02] Speaker 04:
They're not tiny.

[00:36:03] Speaker 00:
Well, you're not crazy about the word porous either, I think, right?

[00:36:06] Speaker 00:
I mean, the word tiny is what you're focusing on, rightly so, I suppose.

[00:36:11] Speaker 00:
But your construction does not contain the word porous.

[00:36:16] Speaker 00:
And the reason, I suppose, is because that kind of suggests that something can slip through, but it's going through something that is maybe not tiny, but pretty small.

[00:36:28] Speaker 04:
Well, I don't know that that's what porous means.

[00:36:30] Speaker 04:
I think porous is broader than that.

[00:36:31] Speaker 04:
But that's when we were.

[00:36:33] Speaker 00:
You're concerned that the court reads porous.

[00:36:35] Speaker 00:
That's right.

[00:36:36] Speaker 00:
You're using the term porous in a way that suggests a more restrictive opening than you think is correct.

[00:36:42] Speaker 04:
That's exactly right.

[00:36:43] Speaker 04:
That is the issue.

[00:36:46] Speaker 04:
With regard to the porous interference, I'll say there, Mr. Cole referred to these as cease and desist letters to everyone.

[00:36:56] Speaker 04:
What those letters were, and the court can and probably has read them yourself, they're letters announcing that a lawsuit was filed and that SSI has various patents worldwide, including the United States, China, and Germany.

[00:37:08] Speaker 04:
That's what those letters said.

[00:37:10] Speaker 04:
And those weren't cherry picked to companies that DZEM was affiliated or doing something with.

[00:37:16] Speaker 04:
Those were SSI's customers announcing a lawsuit, being transparent, because this kind of stuff gets talked about in the industry.

[00:37:24] Speaker 04:
SSI told its customers about this.

[00:37:27] Speaker 04:
It is... NOR protects that kind of communication and a court found that NOR protects that kind of communication.

[00:37:36] Speaker 01:
How should we treat the fact that some of these letters went to foreign companies?

[00:37:41] Speaker 04:
I think the same because they're announcing that there is a US lawsuit and as Mr. Weber's declaration indicates these foreign companies are multinational companies.

[00:37:50] Speaker 04:
Products get imported, exported, so they will be concerned about what's going on in the US.

[00:37:56] Speaker 04:
They aren't just isolated to one area of the world.

[00:37:59] Speaker 04:
And that's the only evidence in the record is from Mr. Weber on that.

[00:38:05] Speaker 01:
Thank you, Your Honor.

[00:38:07] Speaker 01:
You've got three minutes, sir.

[00:38:12] Speaker 03:
Am I limited to the torsos interference?

[00:38:14] Speaker 03:
OK.

[00:38:15] Speaker 03:
And only to the statements that were brought up.

[00:38:18] Speaker 03:
Understood, understood.

[00:38:20] Speaker 03:
No, within the record is an additional statement from Mr. Utes to, I believe it was a Netherlands company, and in addition to sending of the email, it included a statement to the effect of, anyone who's found using this sensor, we're going to sue.

[00:38:38] Speaker 03:
So that is much more than simply a, hey look, we have patents.

[00:38:45] Speaker 01:
Okay, thank you sir.

[00:38:47] Speaker 01:
We thank the party for their arguments.

[00:38:50] Speaker 01:
This case will be taken under advisory.