[00:00:00] Speaker 04:
Our next case is number 23, 1906, CAO Lighting Inc.

[00:00:05] Speaker 04:
versus White Electric Company.

[00:00:09] Speaker 04:
Okay, Mr. Cahill.

[00:00:11] Speaker 03:
Good morning and may it please the Court.

[00:00:13] Speaker 03:
This Court should reverse the summary judgment of non-infringement the law because the District Court made three errors in claim construction in reaching its conclusion.

[00:00:23] Speaker 03:
These three claim construction errors build on each other.

[00:00:26] Speaker 03:
So if this court agrees with us, at any point in the three-error chain, it can reverse.

[00:00:32] Speaker 01:
So you're about to tell me three alternative reasons for reversal.

[00:00:38] Speaker 01:
Is that what you just said?

[00:00:39] Speaker 03:
They build on each other.

[00:00:41] Speaker 03:
So for example, if the court agrees with us on the first one, there's no need to consider the other two.

[00:00:47] Speaker 03:
The chain is there.

[00:00:48] Speaker 01:
Sorry, I get it.

[00:00:50] Speaker 03:
So first, the district court incorrectly concluded that the first and second reflective layers of claim A were limited to epitaxial layers, a result that does not comport with the plain meaning of the words or the claim language itself.

[00:01:05] Speaker 03:
Second, the district court incorrectly construed other epitaxial layers, saying that every epitaxial layer, and thus the first and second reflective layers in its view, must be other epitaxial layers.

[00:01:19] Speaker 03:
Third, the district court incorrectly concluded that because a recited buffer layer mitigates differences in material properties between the substrate and the other epitaxial layers, the first and second reflective layers must be made of different materials than the substrate.

[00:01:34] Speaker 01:
So if you win on the first of those, that the reflective layer doesn't have to be epitaxial, does that clear the board and go straight to a

[00:01:48] Speaker 01:
vacate and remand?

[00:01:50] Speaker 01:
Yes, Your Honor.

[00:01:50] Speaker 01:
What about the alternative ground of affirmance about the separate components?

[00:01:56] Speaker 03:
Yes, the fight has raised that argument separately.

[00:01:59] Speaker 03:
And yes, the court... You'd have to deal with that still?

[00:02:02] Speaker 03:
Yes.

[00:02:02] Speaker 03:
Okay.

[00:02:03] Speaker 04:
Would you like to deal with that, or if we rule for you on the other points, we should remand to have the district court consider that again?

[00:02:16] Speaker 03:
So below, Feit made the same argument.

[00:02:19] Speaker 03:
Judge Berart disagreed.

[00:02:21] Speaker 04:
He ruled that Becht and Dickinson... But he disagreed, in part, as I read it, relying on the epitaxial layer point.

[00:02:31] Speaker 04:
And if he went on that, we're in a different situation.

[00:02:36] Speaker 03:
That is one way to look at it.

[00:02:37] Speaker 03:
He did reference the reflective layers being epitaxial layers in his Becht and Dickinson analysis.

[00:02:45] Speaker 03:
I think his analysis still applies anyway, because the reflective layers in the specification could be epitaxial layers, and so his analysis under Fekken-Dickinson still applies, but as strictly stated by Judge Barat below,

[00:03:00] Speaker 03:
Your Honor is correct.

[00:03:02] Speaker 04:
Okay, so my only question at that point was if we rule for you on the grounds that he did adopt for summary judgment of non-enfrenchment and you win on that, what should we do about this other issue that Judge Murphy has raised?

[00:03:19] Speaker 04:
Should we remand on that or should we try to decide it ourselves?

[00:03:27] Speaker 03:
Well, I think this court can decide it.

[00:03:29] Speaker 03:
It's an issue of law.

[00:03:30] Speaker 03:
Oh, yeah, we can.

[00:03:31] Speaker 03:
It's a matter of frame construction.

[00:03:33] Speaker 03:
But it does rely on the epitaxial layer of finding.

[00:03:38] Speaker 03:
So the court could remand it for Judge Barak to reconsider.

[00:03:42] Speaker 01:
Is all the summary judgment briefing that we would need to resolve it somewhere in these papers?

[00:03:49] Speaker 03:
Yes, Your Honor.

[00:03:49] Speaker 03:
Unfortunately, it is.

[00:03:51] Speaker 03:
And it's addressed in our appellate brief as well.

[00:03:54] Speaker 03:
but a significant amount of the summary judgment briefing.

[00:03:58] Speaker 04:
The argument is not the point, and the briefing here is pretty sketchy.

[00:04:06] Speaker 03:
Pretty thin.

[00:04:07] Speaker 03:
Well, maybe that leads the court to its conclusion that Becton Dickinson doesn't apply.

[00:04:13] Speaker 03:
And the court's analysis below was sound, and it hasn't actually been challenged.

[00:04:18] Speaker 03:
And that is that if you look at Becton Dickinson and you look at retractable technologies,

[00:04:24] Speaker 03:
In the retractable technologies case, the presumption didn't apply, because there were two elements that had a bridging portion that connected them.

[00:04:34] Speaker 03:
And then he looks, Judge Orrott looks at the 961 pattern that's at issue here and says, well yeah, all these layers can be connected, they can be part of the chip.

[00:04:45] Speaker 03:
And so they don't have to be different structures.

[00:04:49] Speaker 04:
OK, but this is unlike any other case that I've seen involving the Buck and Dickinson issue in the sense that you have one limitation in 27 and then the other limitation in claim eight.

[00:05:04] Speaker 04:
And the suggestion is that they could be satisfied by a single structure.

[00:05:08] Speaker 04:
Maybe that's a bit questionable when you have the two limitations in different claims.

[00:05:14] Speaker 03:
And that was not addressed below.

[00:05:20] Speaker 03:
So the first and second reflective layers have been given their plain and ordinary meaning in several courts in different forms.

[00:05:29] Speaker 03:
In every case, those terms have been given their plain and ordinary meaning.

[00:05:33] Speaker 03:
So for example, the court below, the District of Delaware, the PTAB have all agreed that reflective layers of the claim are distinct from each other.

[00:05:42] Speaker 03:
they reflect light from the active layer, and that they had to reflect more than a negligible amount of light, and that there were no other limitations on those terms.

[00:05:54] Speaker 03:
That was the case below until the summer judgment hearing, when the court su espante suggested that the reflective layers were epitaxial layers.

[00:06:05] Speaker 00:
What are all your reasons for why they don't have to be epitaxial layers?

[00:06:10] Speaker 00:
Going through the claim language, the specification, things like that.

[00:06:15] Speaker 03:
So, first of all, the term layer, a layer doesn't have to be an epitaxial layer.

[00:06:21] Speaker 03:
There are no epitaxial layer requirements in claim aid.

[00:06:25] Speaker 00:
And there are, the specification discloses layers, uses the word layer to refer to things that are deposited, right?

[00:06:32] Speaker 03:
Yes, it does.

[00:06:34] Speaker 03:
There are several instances where it does that.

[00:06:36] Speaker 03:
Phosphor, layers, thermoelectric,

[00:06:39] Speaker 03:
lining or layer.

[00:06:41] Speaker 03:
And so layer, generally, layer in the patent isn't limited to epitaxial layers.

[00:06:49] Speaker 03:
If one looks at claims seven and eight together, claim seven doesn't expressly say that any particular layer is an epitaxial layer.

[00:07:01] Speaker 00:
And it doesn't say on which all epitaxial layers or only epitaxial layers are grown, right?

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

[00:07:09] Speaker 03:
We've provided a chart in our reply that talks about the locational language of the layers in claim seven, some of which you need to be above the substrate, and that a person with ordinary skill in the art might fairly characterize as needing to be epitaxial.

[00:07:25] Speaker 03:
But then there are other layers, like the reflective layers, that have no locational requirements.

[00:07:30] Speaker 03:
They could be anywhere.

[00:07:33] Speaker 03:
And so they don't have to be grown above the substrate.

[00:07:36] Speaker 03:
They don't have to be epitaxial layers.

[00:07:38] Speaker 03:
They could be anywhere, and they just need to be layups.

[00:07:47] Speaker 00:
Now, didn't the district court read the language, other epitaxial layers, as suggesting that every other layer was an epitaxial layer?

[00:07:57] Speaker 00:
Do I remember that correctly?

[00:07:59] Speaker 00:
Yes.

[00:07:59] Speaker 00:
I think that's your second argument.

[00:08:00] Speaker 03:
Yes.

[00:08:02] Speaker 03:
So in claim.

[00:08:07] Speaker 03:
Seven, the buffer layer is said to be located on the substrate, and it serves to mitigate differences in material properties between said substrate and other epitaxial layers.

[00:08:18] Speaker 03:
And the court wanted to know what the other epitaxial layers are.

[00:08:23] Speaker 03:
And that is where the chart is that we prepared to show where the layers go.

[00:08:28] Speaker 03:
The court below concluded that other epitaxial layers wasn't some subset of the epitaxial layers, that it was all epitaxial layers.

[00:08:38] Speaker 03:
And it can't be all epitaxial layers because it can't include the buffer, because it's the buffer that mitigates between the others.

[00:08:48] Speaker 03:
And so the court didn't get that right.

[00:08:52] Speaker 03:
And there's no reason why one would expect the reflective layers to be other epitaxial layers.

[00:09:02] Speaker 03:
In Claim 7, the buffer layer has locational information about being on the substrate.

[00:09:09] Speaker 03:
The first cladding layer is adjacent to the buffer layer.

[00:09:12] Speaker 03:
The active layer is between the first and second cladding layers.

[00:09:17] Speaker 03:
You know where those layers are, and they're above the substrate and above the buffer.

[00:09:21] Speaker 03:
there's no such information in the claims for the reflective layers.

[00:09:25] Speaker 03:
So there's no reason to believe that the reflective layers would be other epitaxial layers.

[00:09:39] Speaker 03:
So we think that these claim construction issues are straightforward applications of the Phillips standard.

[00:09:46] Speaker 03:
Judge Barab did in fact look to the claim language and then look to the specification

[00:09:52] Speaker 03:
in the order that Philip suggests.

[00:09:55] Speaker 03:
But when he looked at the claim language he got, the claim is wrong.

[00:10:00] Speaker 03:
He looked at it and saw epitaxial layers, reflective layers.

[00:10:05] Speaker 03:
The layers must be epitaxial.

[00:10:07] Speaker 03:
But there's no basis in the claim.

[00:10:09] Speaker 03:
There's no basis in the ordinary meaning for saying that.

[00:10:12] Speaker 03:
It's just word matching.

[00:10:14] Speaker 03:
And it doesn't get the claim meaning correct.

[00:10:17] Speaker 03:
Second, he goes to the specification and he looks to an embodiment for a laser chip, a Vixel, as we call it.

[00:10:25] Speaker 03:
And there, that embodiment is excluded from the claims, but more importantly,

[00:10:33] Speaker 03:
When you look to that embodiment, the first thing you change to apply its teachings to an LED, the first thing you change is the reflective layers.

[00:10:43] Speaker 03:
So you can't go to that embodiment and say, those must be the reflective layers in the LED.

[00:10:50] Speaker 03:
Because the experts say they're not.

[00:10:52] Speaker 03:
You would modify them to use them in the LED.

[00:10:56] Speaker 03:
So I will save the rest of my time for a bottle and we'll see.

[00:11:01] Speaker 03:
OK.

[00:11:05] Speaker 04:
Mr. Dickel?

[00:11:06] Speaker 04:
Is that how you pronounce it?

[00:11:07] Speaker 02:
It is.

[00:11:07] Speaker 02:
Thank you, Your Honor.

[00:11:09] Speaker 02:
Dickel.

[00:11:09] Speaker 02:
Dickel.

[00:11:10] Speaker 02:
Dickel.

[00:11:10] Speaker 02:
Okay.

[00:11:11] Speaker 02:
Thank you.

[00:11:12] Speaker 02:
May it please the Court?

[00:11:14] Speaker 02:
This Court should affirm the summary judgment ruling of the District Court.

[00:11:19] Speaker 02:
I'll jump right into the arguments my colleague made.

[00:11:23] Speaker 02:
We disagree that any one of the three steps would result in reversal.

[00:11:30] Speaker 02:
All this court needs to decide is that a reflective layer is epitaxial.

[00:11:34] Speaker 02:
Okay, let's start there.

[00:11:35] Speaker 02:
Yes.

[00:11:36] Speaker 02:
The claim language is where the courts start to define the terms.

[00:11:41] Speaker 02:
If you look at the claims themselves, it is clear that a reflective layer is epitaxial.

[00:11:46] Speaker 00:
I'm having a hard time seeing that, so what specific language are you relying on?

[00:11:50] Speaker 02:
Sure.

[00:11:51] Speaker 02:
So in dependent claim seven,

[00:11:53] Speaker 02:
The term layer is first introduced.

[00:11:56] Speaker 02:
And when it's introduced, it says there are a number of epitaxial layers.

[00:12:00] Speaker 02:
Then it goes on to describe a number of exotap epitaxial layers.

[00:12:05] Speaker 02:
But Claim 7 does not say an acted epitaxial layer.

[00:12:09] Speaker 01:
You left out something important though because you started with layers but I think maybe you should have started the line before where it says a device is recited in claim one wherein said chip includes and then it says epitaxial layers and discusses some layers

[00:12:30] Speaker 01:
Then when you go to claim eight where it introduces the reflective layers, it says a device as recited in claim seven further comprising a first and second reflective layers.

[00:12:41] Speaker 01:
It doesn't say that the chip further comprises a first and second layers.

[00:12:46] Speaker 01:
It says the device does.

[00:12:48] Speaker 01:
Isn't that significant?

[00:12:50] Speaker 02:
It doesn't make any difference to our argument because claim eight says the device of claim seven.

[00:12:57] Speaker 02:
And claim seven is the first claim that recites the chip.

[00:13:01] Speaker 02:
And when claim seven discusses the chip, it is discussing layers.

[00:13:06] Speaker 02:
It is discussing the epitaxial layers.

[00:13:08] Speaker 02:
And my point is, in dependent claim seven, it doesn't say an active epitaxial layer, a cladding epitaxial layer.

[00:13:16] Speaker 02:
A person of ordinary skill would understand that after claim seven introduces the concept of an epitaxial layer,

[00:13:24] Speaker 02:
The layers that goes onto a site, the same layers that are depicted throughout the specification are epitaxial.

[00:13:30] Speaker 00:
I'm sorry to interrupt you, but there are a lot of canons of construction that would say, actually, when you take away the adjective describing layer, it means that the layer can be any kind of layer.

[00:13:41] Speaker 00:
So there's epitaxial layer.

[00:13:43] Speaker 00:
And then later, when you purposefully use the word layer without having epitaxial before it, it means that it's broader.

[00:13:51] Speaker 00:
So how do you respond to that?

[00:13:52] Speaker 00:
I mean, it's a canon of construction.

[00:13:54] Speaker 02:
It is, but again, we need to look at how one of ordinary skill in the art would understand the claims.

[00:13:59] Speaker 02:
And when you look at claim eight, you are correct.

[00:14:01] Speaker 02:
It does not say epitaxial layers, but it also does not say the active epitaxial layer from claim seven.

[00:14:07] Speaker 02:
It says the active layer.

[00:14:09] Speaker 00:
A person with ordinary skill... What is the active?

[00:14:12] Speaker 00:
I don't understand why you're emphasizing active.

[00:14:15] Speaker 02:
because active is recited in claim eight, just like reflective layers is recited in claim eight.

[00:14:21] Speaker 02:
And a person who ordinates still would not look at claim eight and think, oh, the word active here does not have the word epitaxial in front of it, so maybe it's something else.

[00:14:30] Speaker 02:
Similarly, when you're discussing reflective layers on either side of that active epitaxial layer, one of Ordinary's skills would understand, okay, you're talking about layers.

[00:14:39] Speaker 02:
Where have I seen layers in these claims before?

[00:14:41] Speaker 02:
In Claim 7, when they recite the chip layer.

[00:14:43] Speaker 04:
Did you put in expert testimony to this effect, or is this just your lawyer argument?

[00:14:49] Speaker 02:
This is claim construction principles, so I'm arguing from a legal perspective how one of ordinary scale would interpret these claims.

[00:14:56] Speaker 02:
But there is evidence in the record that supports that this is how one of ordinary scale would understand.

[00:15:01] Speaker 00:
What about the fact that your specification refers to various layers that aren't epitaxial?

[00:15:09] Speaker 02:
There's only a handful of instances, and none of them could be misinterpreted by one of ordinary skill as being epitaxial.

[00:15:17] Speaker 02:
The two examples from the specification are a phosphor layer, which one of ordinary skill would understand is not epitaxial.

[00:15:23] Speaker 02:
That's a coating over the LED chip that can convert it to monochromatic light.

[00:15:29] Speaker 00:
I think that's undisputed.

[00:15:30] Speaker 00:
Even somebody who's not a person of ordinary skill in the art like me could understand it wasn't epitaxial when I read it.

[00:15:36] Speaker 00:
And so the point is, though, that

[00:15:38] Speaker 00:
When an inventor in his specification uses the word more generically, not to mean something special, it's really hard for us to import that meaning that you're trying to attribute to it now into the claim when it's just used generically without that patexial

[00:15:56] Speaker 00:
modifier.

[00:15:58] Speaker 02:
So following a logic that the district court did, if you start with the claims and understand claim seven is talking about a chip, and that's the first time layers are recited, claim eight depends directly from claim seven.

[00:16:10] Speaker 02:
So with claim seven in mind, where the layers are epitaxial, including an active layer which no one disputes is epitaxial,

[00:16:18] Speaker 02:
When claim eight is introduced and introduces reflective layers, one of the ordinary skills to understand those layers are epitaxial, just like the layers in claim seven were introduced as epitaxial.

[00:16:30] Speaker 01:
Second... Well, you said they're introduced as epitaxial.

[00:16:34] Speaker 01:
It says a substrate on which epitaxial layers are grown, comma, and then there's a bunch of layers that are recited.

[00:16:41] Speaker 01:
And I appreciate that it's not disputed that some of these are epitaxial layers, but I don't know, it could equally be some are known to be epitaxial and some are not.

[00:16:50] Speaker 01:
I don't really have a particular reason to think one or the other.

[00:16:53] Speaker 01:
But grammatically in the claim, I just noticed it doesn't say a substrate on which epitaxial layers are grown,

[00:16:59] Speaker 01:
said epitaxial layers comprising.

[00:17:02] Speaker 01:
That's exactly my point.

[00:17:04] Speaker 02:
Those layers are understood to be epitaxial without the claim saying the following layers are epitaxial.

[00:17:11] Speaker 01:
But that might be that understanding.

[00:17:15] Speaker 01:
I don't have to believe that that understanding is a matter of grammar.

[00:17:19] Speaker 01:
That understanding could simply be that could be not contested simply because as a matter of technical fact, that's just what those kinds of layers are.

[00:17:27] Speaker 01:
I don't know.

[00:17:27] Speaker 02:
That's also correct.

[00:17:28] Speaker 02:
And that's the teachings from the specification indicate that that's true as well.

[00:17:33] Speaker 02:
The layers that are not epitaxial from the specification are clearly not epitaxial layers.

[00:17:40] Speaker 02:
You've got the phosphor layer, which is the coating over the chip, and you've got an adhesive layer underneath the chip.

[00:17:45] Speaker 02:
A person of ordinary skill would not confuse those to be epitaxial.

[00:17:48] Speaker 02:
In stark contrast, reflective layers are only used in the context of epitaxial layers with the VEXEL chips.

[00:17:58] Speaker 02:
So, reeling the chip... Which are not an LED.

[00:18:01] Speaker 02:
It actually is a type of LED.

[00:18:04] Speaker 02:
It's an LED with reflective layers.

[00:18:06] Speaker 02:
The inventor said that a VEXEL chip could be an LED.

[00:18:09] Speaker 02:
We refer to them as VEXELs.

[00:18:11] Speaker 02:
You take an LED chip, it's a light emitting diode.

[00:18:14] Speaker 02:
A VEXEL has a light emitting diode with layers on either side.

[00:18:18] Speaker 02:
Those layers, the reflective layers, when the LED emits the light, the light bounces between the reflective until it lasers.

[00:18:24] Speaker 02:
That's the purpose of reflective layers, and everything in the specification is consistent that that is what the reflective layers are for.

[00:18:32] Speaker 01:
I thought it was uncontested that these claims don't cover the Vexel embodiment.

[00:18:38] Speaker 02:
It's not uncontested.

[00:18:42] Speaker 02:
What I think actually happened, claims 1 through 20 were drafted in the original patent application.

[00:18:47] Speaker 02:
Claim seven is directed to a generic LED.

[00:18:51] Speaker 02:
Claim eight adds the reflective layers that then covers the specific vexel chip.

[00:18:57] Speaker 02:
Through the re-examination process in 2010, 2011, all of these claims were canceled.

[00:19:03] Speaker 02:
Later, prosecution counsel added claim 21, which said they attempted to select from the Marcuse group, but they actually failed at that because if you look at the actual language of claim 21, it says,

[00:19:16] Speaker 02:
said at least one semiconductor chip is a light emitting diode chip.

[00:19:20] Speaker 02:
That's actually not in the Marcoosh group.

[00:19:23] Speaker 02:
So you already have to make a leap that when they're talking about a light emitting diode chip, they're actually talking about a light emitting diode.

[00:19:32] Speaker 00:
What do you think is your best evidence, and you don't have expert testimony, but your best evidence that a person of ordinary skill in the art would know that that reflective layer must be epitaxial?

[00:19:46] Speaker 02:
The best evidence is from the claimed language themselves.

[00:19:49] Speaker 02:
Reading claim seven, you immediately see the introduction of epitaxial layers.

[00:19:53] Speaker 02:
Even though it doesn't say the active layer is epitaxial, even though it doesn't say the cladding layer is epitaxial, one of ordinary skills would understand the epitaxial.

[00:20:02] Speaker 00:
Claim 8 introduces new layers, which refer to the active layer, which no... How do I know that a person with an ordinary skill in the art would read this and say, active layer must be epitaxial, cladding layer must be epitaxial?

[00:20:14] Speaker 00:
There's nothing, you know, the way claims are commonly written and broadly understood when they're interpreted is not to read words into it that aren't there.

[00:20:26] Speaker 02:
That's correct, Your Honor.

[00:20:27] Speaker 02:
So if a person of ordinary skill would find ambiguity in the claims, which I don't think there is, but if one of ordinary skill wanted to confirm it.

[00:20:34] Speaker 00:
And I want to know, like, what is your evidence that a person of ordinary skill in the art, and I guess I'm going to judge Dyches' question.

[00:20:40] Speaker 00:
There's no expert testimony, but is there something else that would allow me to understand what I under, I think what you're arguing is that the reflective layer has to be epitaxial.

[00:20:51] Speaker 00:
I think that's what you're arguing.

[00:20:52] Speaker 02:
The reflective layer from the context is epitaxial.

[00:20:55] Speaker 02:
One of our names still didn't consult the specification.

[00:20:58] Speaker 02:
And the specification would indicate there is no reference to any reflective layer other than in the context of those epitaxial layers.

[00:21:05] Speaker 00:
So you're saying the claims should be interpreted that way because every embodiment is an epitaxial layer?

[00:21:10] Speaker 02:
No, I'm saying the understanding from the claims, because the claims introduce the term epitaxial, it's... But it doesn't say a substrate on which

[00:21:21] Speaker 00:
only epitaxial layers are grown, right?

[00:21:24] Speaker 00:
That says epitaxial layers are grown, and then it goes on to proceed to identify about eight layers, and it doesn't say which ones are epitaxial and which ones aren't.

[00:21:33] Speaker 02:
That's true, but in this instance the parties have agreed that the construction of substrate is a pad upon which epitaxial layers are grown.

[00:21:41] Speaker 02:
That's agreed.

[00:21:42] Speaker 02:
So the layers that are on the substrate have been agreed to be the epitaxial.

[00:21:45] Speaker 00:
It doesn't mean that every layer is epitaxial.

[00:21:48] Speaker 00:
I mean, it could be that epitaxial layers are grown there, but then something's put on top of it.

[00:21:54] Speaker 00:
That some of the layers could be deposited.

[00:21:56] Speaker 02:
Well, by definition and by agreement of the parties, if it's grown on the substrate, it's epitaxial.

[00:22:01] Speaker 02:
That is the definition of epitaxial.

[00:22:03] Speaker 02:
It's agreed for grown on.

[00:22:05] Speaker 01:
May I ask a question referencing back to where we started this oral argument?

[00:22:10] Speaker 01:
Suppose that we disagree with you and we say that the reflective layers don't have to be epitaxial.

[00:22:19] Speaker 01:
How would you propose that we handle the alternative ground having to do with the same components?

[00:22:25] Speaker 01:
Yes, Your Honor.

[00:22:27] Speaker 02:
As this Court knows, it can affirm on any ground even different from the District Court.

[00:22:32] Speaker 02:
Under Beckham Dickinson, when separate terms are recited, they're presumed to be separate,

[00:22:39] Speaker 02:
And we looked at the specification to see if there's any indication that a single component can serve both functions.

[00:22:43] Speaker 04:
Yeah, but that's the merits of the argument.

[00:22:46] Speaker 04:
Should we decide that issue now, or should we decide it in the first instance on remand?

[00:22:53] Speaker 04:
The district court, since the reasoning of the district court on this issue would be affected by a ruling that reflective layers don't have to be if it attacks you.

[00:23:08] Speaker 02:
I see your point.

[00:23:11] Speaker 02:
It appears to be a claim construction issue to me that this court is well qualified to address now without sending it back down to the district court.

[00:23:20] Speaker 02:
In the specification, it is 100% clear.

[00:23:23] Speaker 02:
It talks about a substrate.

[00:23:25] Speaker 02:
No one in the specification does it ever say a substrate can act as a layer.

[00:23:30] Speaker 02:
So there are references to a phosphor layer.

[00:23:32] Speaker 02:
There are references to an adhesive layer.

[00:23:34] Speaker 02:
But the specification is clear that the substrate is that upon which layers are grown.

[00:23:39] Speaker 02:
And again, that's an agreed upon construction.

[00:23:42] Speaker 02:
So if we start with the premise that a substrate is there to grow layers on, whether epitaxial or not, then

[00:23:50] Speaker 02:
To overcome the Beckton-Dickinson presumption, we would need to find something in the specification that would indicate that substrate can also be a layer, as recited in the claims.

[00:24:01] Speaker 02:
And there's absolutely nothing in the specification, and nothing cited by Kyle Leiding, that indicates that substrate could serve both purposes.

[00:24:10] Speaker 00:
And when you say substrate, you're referring to in the accused device, right?

[00:24:17] Speaker 00:
What are you referring to as the substrate?

[00:24:20] Speaker 02:
I'm referring to the specification.

[00:24:22] Speaker 02:
All of the diagrams in the specification, every single diagram that depicts chip layers has a substrate at the bottom and then layers at the top.

[00:24:29] Speaker 02:
And there's seven or eight of these figures.

[00:24:31] Speaker 01:
You keep saying that you'd be using the substrate to satisfy both limitations, but it's the substrate and then the other

[00:24:40] Speaker 01:
layer is just the etched part of the substrate, little cones, right?

[00:24:46] Speaker 01:
Right.

[00:24:46] Speaker 01:
In combination with, it's that area right there.

[00:24:49] Speaker 01:
But it's not just two different parts of the substrate.

[00:24:53] Speaker 01:
But it's all the substrate.

[00:24:54] Speaker 02:
And if you look in cow's infringement contentions, they identify that part, the etched layers, which are not epitaxial because they're etched, they're not grown.

[00:25:05] Speaker 02:
Cow identifies all of that as the substrate.

[00:25:09] Speaker 02:
And our position is you cannot identify the substrate as the reflective layer.

[00:25:15] Speaker 02:
That is not supported by the specification.

[00:25:18] Speaker 02:
There is nothing to overcome the presumption that these separate recited components can serve that same purpose.

[00:25:26] Speaker 02:
It's also supported because frame eight says further comprise.

[00:25:30] Speaker 02:
And it says it's not, it's introducing further components.

[00:25:35] Speaker 02:
A first reflective layer on either side of the active layer.

[00:25:39] Speaker 02:
One ordinary school would not look back and say, oh, well, the substrate may be satisfied if it's further comprising.

[00:25:45] Speaker 00:
Why can't they say half the substrate satisfies it and the part with the cone satisfies the other claim element?

[00:25:52] Speaker 02:
Why can't they, you know... Because the specification and the parties agree that the substrate is where the layers sit on top of the substrate.

[00:26:00] Speaker 02:
You can't identify a substrate and have the layers be sitting on top of itself.

[00:26:05] Speaker 02:
That is a contradiction.

[00:26:07] Speaker 00:
The claim doesn't say that the other layers are on the substrate at every point on the substrate.

[00:26:16] Speaker 02:
The claims define the substrate as that upon which layers are grown in the place of a grid that the construction of substrate is... But it doesn't say the substrate is flat horizontally?

[00:26:28] Speaker 02:
No, it doesn't.

[00:26:29] Speaker 02:
But by the nature of the language, the layers are on the substrate.

[00:26:35] Speaker 00:
Right.

[00:26:36] Speaker 02:
The substrate is not a layer.

[00:26:38] Speaker 02:
The layers are on the substrate.

[00:26:41] Speaker 00:
What do you think of the word on means?

[00:26:43] Speaker 00:
Could something be on something but not touch it at every place?

[00:26:48] Speaker 00:
This is on the napkins.

[00:26:54] Speaker 00:
It's on the napkins, right?

[00:26:56] Speaker 02:
It is, but it's not the napkins.

[00:26:58] Speaker 02:
If I said the piece of paper, sorry, the napkin

[00:27:04] Speaker 02:
is the device upon which the paper sets.

[00:27:09] Speaker 02:
You wouldn't say, oh, the napkin can be part of the paper, because you've already defined the napkin as the base.

[00:27:15] Speaker 02:
And the substrate term itself, the substrate is, by its own plain, ordinary meaning, something upon which other things rest.

[00:27:24] Speaker 04:
OK.

[00:27:25] Speaker 04:
I think we're out of time.

[00:27:25] Speaker 04:
Thank you.

[00:27:26] Speaker 04:
Thank you.

[00:27:27] Speaker 04:
Mr. Cahill?

[00:27:33] Speaker 04:
About four minutes.

[00:27:43] Speaker 03:
I think it is contested.

[00:27:44] Speaker 03:
Excuse me, I think it's not contested that a VIXL chip is not claimed here.

[00:27:52] Speaker 03:
There's six members of a Marcouch group, one of which is an LED, one of which is a VIXL.

[00:27:59] Speaker 03:
And in claim 21, a selection is made to choose the LED.

[00:28:05] Speaker 03:
Certainly those things have

[00:28:08] Speaker 03:
elements in common, but they also have elements that are different.

[00:28:11] Speaker 03:
And one of the differences is the way the reflective layers apply.

[00:28:15] Speaker 03:
And there is expert testimony on that, and it's cited in our reply brief.

[00:28:22] Speaker 03:
So a substrate is, in fact, a pattern in which epitaxial layers are grown.

[00:28:28] Speaker 03:
And the word grown is important here because epitaxy is a process of growing crystals.

[00:28:37] Speaker 03:
And so

[00:28:38] Speaker 03:
Yes, there are layers of crystal that are grown on a substrate, but not everything everywhere becomes an epitaxial layer.

[00:28:48] Speaker 03:
There are more than a few references to PTAB proceedings involving these claim terms.

[00:28:57] Speaker 03:
And in fact, the PTAB found two reflective layers, first and second reflective layers, that were not epitaxial layers.

[00:29:06] Speaker 03:
There's a metal layer on top of the chip and a metal layer maybe on the bottom of the chip.

[00:29:13] Speaker 03:
And so they're not epitaxial.

[00:29:15] Speaker 03:
And that was as a result of fight joining in a challenge to these claims.

[00:29:22] Speaker 03:
So the reflective layers do not need to be epitaxial and nothing in the claims tells you that they must be.

[00:29:30] Speaker 03:
Nothing in the specification tells you that they must be.

[00:29:34] Speaker 01:
Can you turn to the Beckton Dickinson issue?

[00:29:37] Speaker 01:
Your friend on the other side used the phrase Beckton Dickinson presumption.

[00:29:42] Speaker 01:
Do you see it the same way?

[00:29:44] Speaker 01:
That there's a presumption in their favor?

[00:29:50] Speaker 03:
So there are some cases that follow Beckton Dickinson and they call it a presumption when things are recited separately.

[00:29:57] Speaker 03:
if there's nothing in the claims and nothing in the specification to suggest that they could be together.

[00:30:04] Speaker 03:
Now, this issue was raised, right, different defendant, but same issue, same claim construction in Delaware.

[00:30:14] Speaker 03:
And what Judge Williams said is, the court declines to construe further comprising is creating a negative limitation requiring separate structures for the first reflective layer in the substrate.

[00:30:26] Speaker 03:
Judge Barak below found that the specification overcame the presumption.

[00:30:34] Speaker 03:
I agree that there are some cases that call it a Becton-Dickinson presumption, but it seems to be an awfully weak one because there are a lot of cases out there that distinguish it.

[00:30:43] Speaker 03:
We've cited several of them in our briefing, and Judge Barak relied on one, the retractable technologies case that specifically distinguished Becton-Dickinson, and there are many that do.

[00:30:55] Speaker 03:
So I agree that some cases call it a Becht and Dickinson presumption.

[00:30:59] Speaker 01:
Do you agree that it is fundamentally a claim construction issue?

[00:31:03] Speaker 01:
I think it is a claim construction issue.

[00:31:10] Speaker 03:
OK, can you keep further?

[00:31:12] Speaker 03:
Nothing further.

[00:31:12] Speaker 03:
If the court has no more questions.

[00:31:14] Speaker 04:
OK, thank you.