[00:00:00] Speaker 01:
D3D Technologies versus Microsoft.

[00:00:03] Speaker 01:
Mr. Fahmy, is that how you pronounce it?

[00:00:06] Speaker 03:
Good morning.

[00:00:07] Speaker 03:
Good morning, your honor.

[00:00:07] Speaker 03:
Thank you.

[00:00:09] Speaker 03:
May it please the court, my name is Tarek Fahmy.

[00:00:12] Speaker 03:
I'm here representing D3D Technologies.

[00:00:16] Speaker 03:
Your honors, with respect to this case, which involves the 771 patent, the first error of the board I'd like to discuss concerns dependent claims 6, 13, and 20

[00:00:28] Speaker 03:
Each of those claims require sorting voxels of selected items of a three-dimensional image by a property of that voxel and then applying colors to groups of the sorted voxels to obtain a colored image.

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The fundamental error that the board committed here was confusing the assignment of colors to a voxel as recited in the claim versus display of a pixel

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in the actual display unit.

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And you can see this error in the board's analysis particularly at pages 24 and 25 of their opinion.

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At that part of the opinion the board addresses Murphy's description of rendering color for each voxel

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The problem is that rendering color.

[00:01:27] Speaker 01:
Can you tell me where you are?

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You're on page Appendix 24?

[00:01:30] Speaker 03:
Yes, Appendix 24 and 25, Your Honor.

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And if you notice, right at the top of 25, the board says, as Murphy renders color for each voxel, which therefore includes those voxels in the second volumes, et cetera.

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But the rendering operation is a display operation and involves pixels.

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And to understand this, let me see if I can give you a little background about what Murphy is talking about here.

[00:02:01] Speaker 01:
Well, before you get to that, I guess when you're doing that, because the board on the previous page on 24 does talk about its reading of what Murphy discloses.

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So while you're doing that, can you tell me why you think the board was wrong in that second paragraph of that page?

[00:02:19] Speaker 03:
Sure.

[00:02:19] Speaker 03:
So there's two parts to the claim, Your Honor.

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The first is the sorting.

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operation and on page 24 the board is talking about sorting through image segmentation as described in Murphy.

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Now I don't think there's a dispute that segmentation is a kind of sorting.

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Where the dispute arises is that that segmentation is not the basis for this rendering of color that the board goes on to talk about

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with respect to the part of the claim that talks about applying colors to voxels.

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What the board is talking about at the bottom of 24 carrying on to the top of 25 is Murphy's description of volume rendering.

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If you see at the bottom of page 24, Murphy describes volume rendering, et cetera.

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Now, volume rendering in Murphy is the way in which images

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get displayed on what the viewer is looking at.

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And the way it does this is by projecting imaginary rays through this three-dimensional volume.

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And as these rays get projected through the volume, they encounter different pixels.

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And what gets put up on the display is some kind of combination of the

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colors or transparencies of the different voxels.

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You can think of it almost as a superposition of these voxels.

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But by that time, the voxels already have a color that's been associated with them.

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Murphy says that color is assigned based on the anatomical feature.

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So the confusion though that the board has is they read this rendering as the application of color.

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And that's just not correct.

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What Murphy's describing when he talks about this rendering is the ray casting technique in order to determine what's on the display.

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And that's not the color assigned to the voxel.

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There's nothing in Murphy that talks about

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assigning color based on the sorting.

[00:04:44] Speaker 01:
There was no claim construction dispute with regard to these two claims, right?

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It's all substantial evidence review?

[00:04:52] Speaker 03:
Yes, Your Honor, substantial evidence review.

[00:04:55] Speaker 01:
Why don't you turn to the first issue, if you might, on the subtraction that is a claim construction question.

[00:05:02] Speaker 03:
It is a construction question, Your Honor.

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So with respect to the subtracted issue, which will affect all the claims of the patent,

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The board's error here was improperly equating filtering with subtraction.

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You can see this at page 15 of the opinion.

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And at page 15, right at the top again, the board says that because the 771 patent discloses multiple filtering processes, we cannot limit the claim subtracted to deletion of the underlying data.

[00:05:41] Speaker 01:
Well, the board didn't just make that up, right?

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I mean, it cited sections of the specification to get to that sort of relationship between filtering and subtraction, right?

[00:05:53] Speaker 03:
Yes, but they did so in error, Your Honor.

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The specification does not equate filtering with subtraction.

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The claims also, the claims did not discuss any actual elimination of the data from the image.

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Well, we would disagree, Your Honor, and we would invite your attention to column 10.

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This is appendix page 53.

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Column 10, beginning at line 19, specification reads, software reviews each element of tissue throughout the volume, selects tissues to be filtered and eliminates the tissues from the volume of interest.

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So that's the elimination.

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Is that again?

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Yes, Your Honor.

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It begins at column 10 beginning at line 9 through the end of that paragraph.

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Selects tissues to be filtered and eliminates the selected tissue from the volume of interest.

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So that elimination, Your Honor, is the subtraction that's recited in the claim.

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It's an elimination from the data set.

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Is it elimination of the image or elimination of the data?

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It's elimination from the data set, Your Honor.

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Is the underlying data eliminated or is it just the image that's eliminated?

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No, it's eliminated, so it's not there to put in the display of the filter image.

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I get that, but what happens to the underlying data?

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Are you saying that that data is eliminated?

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Yes, Your Honor.

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According to the specification, it's eliminated from

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from the data set, so it's never there to be rendered.

[00:07:30] Speaker 01:
Well, the claim language says selecting items of said image to be subtracted from said image to produce a filtered image.

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So the claim language doesn't get you to your construction.

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It does, Your Honor, because the image that's referenced in that line of the claim is the three-dimensional image.

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that is recited in the limitation immediately prior to the selecting items.

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And the three-dimensional image, as we explained before the board, is not a real image.

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What's actually displayed are two different images, an image for the left eye, an image for the right eye.

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And it's the viewer's mind that puts these together in the viewer's head to form the three-dimensional image.

[00:08:25] Speaker 01:
Okay, but the subtraction happens relative to the image, not the underlying 3D model, right?

[00:08:33] Speaker 03:
Well, because there's no physical image, we think the specification explained that the subtraction has to occur with respect to the 3D model.

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That's the only way in which

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you could produce separate left images and right images from this new model, the one with the eliminated... Okay, so aside from the specification language you gave us, what else is there anywhere in the patent to show that we're talking about this relative to the underlying 3D model?

[00:09:04] Speaker 03:
That's really it, Your Honor.

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The specification does not really provide any other description.

[00:09:09] Speaker 01:
But do you agree that the specification also suggests that subtraction is a type of filtering?

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Well, subtraction is certainly a component of filtering, yes.

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But filtering isn't limited to subtraction.

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The two are not the same thing.

[00:09:25] Speaker 01:
So another type of filtering, for example... Oh yeah, clearly there are various filtering processes, but none of those filtering processes describe limiting data, right?

[00:09:38] Speaker 03:
Right.

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So filtering can't be coincident or can't be co-equal with subtraction because subtraction... Well, but is that the same as saying subtraction is a type of filtering?

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Are you saying subtraction is not a type of filtering?

[00:09:54] Speaker 03:
No, Your Honor.

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What I'm saying is that subtraction can be a component of filtering, but it is not the same as filtering.

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Filtering is a broader term than subtraction.

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And that's where the board made its error.

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They applied a definition thinking that filtering and subtraction are the same thing.

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And the board said, because filtering involves more than elimination, we can't limit subtraction to elimination.

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And this was the problem with their decision.

[00:10:31] Speaker 01:
You're into your rebuttal.

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I'll reserve the rest of the time.

[00:10:34] Speaker 03:
Thank you.

[00:10:49] Speaker 00:
Good morning, Your Honors, may it please the court, Natika Fiorella on behalf of the appellee, Microsoft.

[00:10:55] Speaker 00:
I'd like to start where we just left with the subtracted term.

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We believe that the board's construction was entirely proper here.

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It walked through the intrinsic evidence as well as the extrinsic evidence and found that the ordinary meaning of subtracted should apply and the narrowing gloss that D3D suggests of actual elimination of underlying data is not supported.

[00:11:19] Speaker 00:
We've actually gone through a number of the examples that I was going to, so I'll just touch on and emphasize a few more.

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First, the claim language itself says nothing about actual elimination of data from the model.

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So that's our starting point, and that's where the board started.

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Instead, the subtraction is being applied to an image.

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So we're talking, this entire claim, Your Honors, is really about the user's perspective and displaying an image and the ability to manipulate that image to satisfy the user's goals.

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So this entire claim is about the display of the image.

[00:11:54] Speaker 02:
So can you eliminate an image without subtracting the underlying data that produces the image?

[00:12:02] Speaker 00:
Yes, Your Honor.

[00:12:03] Speaker 00:
If you view it the way that the board did and the specification does, which is simply removing or taking away displayed items from an image.

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So say you have an image of the brain that's sliced together from an MRI or a CT machine, and you just want to highlight some matter in the brain.

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You could, and this is what the patent describes, you could color that or make it so that it is right in front of your user, the user's eyes.

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And then the other aspects could kind of fade away, either by cutting away or by making them transparent.

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And all of those would apply to subtracting those items from the displayed image.

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Yet you're not doing anything with the underlying data.

[00:12:47] Speaker 00:
And in fact, there's nothing in the specification that teaches a skilled artist and how they would even do that, how you go back to a lady mom.

[00:12:54] Speaker 01:
Well, that's true.

[00:12:55] Speaker 01:
But what about your friend's citation to column 10 and the language in column 10?

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Yes, Your Honor, a few things.

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The board did consider that part of the specification and found that all it's describing is eliminating tissues from the volume of interest.

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It does not say that the underlying data of that tissue needs to also be eliminated.

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And in fact, it goes on further

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In that very section, we're on Appendix 55, starting in Column 10.

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It says in the very next sentence, viewing the volume of interest with the tissue.

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Appendix 53, right after the portion that my colleague refers to.

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It says you want to try to view the volume of interest with the tissue selected having been removed.

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So again, we're talking about the view of the volume of interest, going back to the image.

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And then it continues.

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The user could select additional tissues for removal or to be re-added.

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and iterate this process multiple times.

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And the board had expert testimony on this very point, which accredited our expert, that it would make no sense that you have to actually take out and eliminate the underlying data from a model if later you're going to want the user to be able to say, oh, actually, I want to see that piece of the image again.

[00:14:26] Speaker 00:
Let me react.

[00:14:27] Speaker 02:
Was that expert testimony rebutted?

[00:14:31] Speaker 00:
No, it was not, Your Honor.

[00:14:32] Speaker 02:
Dr. Zajidah?

[00:14:34] Speaker 00:
Yes, Dr. Zajidah.

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Dr. Bajaj simply talked about this general concept, but there's no specific rebuttal to that point.

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Instead, it's just attorney argument from D3D's point to say, well, Dr. Zajidah didn't explain this enough.

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So the board was perfectly within its discretion to credit that testimony.

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And that would be a substantial evidence standard, as your honors know.

[00:14:59] Speaker 01:
But you want to turn to the colors, although just to be clear on the process point, if we were to agree with your analysis on subtraction, does that end the case, or do we still reach the other dependent claims here?

[00:15:13] Speaker 00:
We do still reach the other dependent claims.

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So the subtraction issue is dispositive for the independent claims.

[00:15:18] Speaker 02:
So there's also subtraction claim in one of the other cases.

[00:15:22] Speaker 02:
Does this dispose of that?

[00:15:24] Speaker 00:
It does.

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The parties rely on the same parts of the specifications.

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There are two different patents, but the same language is in both specifications.

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The board's analysis is entirely consistent between the two.

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So should you agree with us in this appeal, then in the 1075 appeal, that same holding would apply.

[00:15:43] Speaker 01:
So you want to turn to the colors.

[00:15:45] Speaker 00:
Yes.

[00:15:46] Speaker 00:
So the only remaining issue then is whether substantial evidence supports the board's finding that Murphy discloses this limitation of sorting voxels based on a property of the voxel and applying colors to groups of sorted voxels to obtain a colored image.

[00:16:04] Speaker 00:
So what the board did is looked properly at Murphy.

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And Murphy does describe creating new segment volumes using a segmentation filter.

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And it says all voxels that are inside this desired segment, they're going to fall on one side of that threshold value.

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And everything you don't want inside that segment is going to fall on another side of the threshold value.

[00:16:26] Speaker 00:
And it sounds like we're not disagreeing on that first part as to whether that qualifies as sorting based on a property.

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So then we get to the second step of applying colors.

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And here the claim language just says applying colors to groups of sorted voxels to obtain a colored image.

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There's no description or distinction really being made as to, I believe I heard, you know, whether it's associated with versus displayed.

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It just says apply a color.

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And Murphy teaches exactly this.

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It says that you can use these segmentation filters

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to differentiate skin, bones, and other anatomical features, and that the user has the ability to control attributes associated with each anatomical feature, such as color.

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And that, Your Honors, is at A, 1154 to 1155 in Murphy, paragraph 32.

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And our expert cites that very testimony to show that the apply.

[00:17:27] Speaker 02:
The board accredited Dr. Zayab's testimony here.

[00:17:31] Speaker 02:
Was that related?

[00:17:33] Speaker 00:
No, and again, it was not rebutted that Murphy teaches this.

[00:17:38] Speaker 00:
The only thing that Dr. Bajaj rebutted is whether or not that constitutes a property of the voxels, whether distinguishing between anatomical features is enough to satisfy the claims.

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But no one disputes that that is what Murphy teaches.

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And then the board credited our expert's testimony at Appendix 25 to say that these teachings from Murphy do, in fact, show that the applying colors limitation itself is met.

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Now, the board did go on.

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And I believe what my opponent on the other side described is the part in Murphy that says, OK, there's also this 3D data set.

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And each data set has, each voxel in the data set has four vectors, the red, the blue, the green, and the opacity values.

[00:18:28] Speaker 00:
And this is simply applying the color without reference to how it was originally sorted based on a property.

[00:18:35] Speaker 00:
But the board was very clear here.

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And it said at 24 and 25 that that is showing that there is the ability to add or apply color to any voxel.

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And those would correspond to voxels within a thread, within a segmentation filter.

[00:18:52] Speaker 00:
And then it cites Dr. Deida's testimony where Murphy describes, you do that based on these anatomical features, which themselves are associated with voxels.

[00:19:04] Speaker 00:
I just have one more point on that.

[00:19:07] Speaker 00:
In the briefing it seemed like a big difference between the parties was whether it's enough to differentiate between anatomical features and apply colors based on those features.

[00:19:18] Speaker 00:
And I just want to point out that this is exactly what the 771 patent describes.

[00:19:23] Speaker 00:
So if we look at A53, column 10, lines 20 to 24,

[00:19:30] Speaker 00:
This is where the 771 patent is expressly describing.

[00:19:34] Speaker 02:
Which line tells you?

[00:19:35] Speaker 00:
It is 10, column 10, lines 20 to 24.

[00:19:39] Speaker 00:
And this is where the patent is describing sorting voxels of the items by a property of the voxel.

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And it says an example could be that the coracle bone will be white, blood vessels red, and green matter gray to align with normal anatomical colors.

[00:20:03] Speaker 00:
And it goes on to say processing block 554 states applying colors to groups of sorted voxels to obtain a colored image.

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This would nominally be done based on the properties of the various types of tissue and the type of imaging being performed.

[00:20:21] Speaker 00:
So as the board also recognized, this is a parallel teaching to what is in Murphy.

[00:20:26] Speaker 00:
You segment these different tissues based on their anatomical features, and then you add color.

[00:20:31] Speaker 00:
That's all the claims require.

[00:20:37] Speaker 00:
If there are no other questions, we respectfully request the court affirm the board's decision.

[00:20:53] Speaker 03:
Your Honor, let me address the most recent remarks of my learned friend when she cited from column 10 of the patent.

[00:21:04] Speaker 03:
The portion that she cited referring the coloring for bones, blood vessels, et cetera, does not relate to the application of color.

[00:21:12] Speaker 03:
In fact, that relates to the segmentation step or the sorting step.

[00:21:17] Speaker 03:
And you see that the flow chart then goes on.

[00:21:20] Speaker 03:
processing block 554 talks about the application colors.

[00:21:24] Speaker 03:
So it's just incorrect that that step refers to the application color.

[00:21:32] Speaker 03:
The other problem with Microsoft's argument, your honor, I think I heard at the beginning of the argument an agreement that filtering can be done without some subtraction.

[00:21:48] Speaker 03:
So it seems like we're in agreement.

[00:21:50] Speaker 03:
that filtering is not the same as subtraction, that they are in fact different.

[00:21:56] Speaker 03:
The board's decision blurs that distinction.

[00:22:01] Speaker 03:
The other part of the argument related to some testimony of the experts, we disagree that there wasn't expert testimony rebutting what Dr. Zydus said, but more importantly, the board's... Clearly the board didn't credit that expert testimony.

[00:22:15] Speaker 03:
The board actually, I don't think, appreciated

[00:22:21] Speaker 03:
the distinction because they spoke to in their decision not the basis that Microsoft says is the reason for the reference teaching claim.

[00:22:33] Speaker 03:
The board spoke to as we went over initially the fact that the display operation is what applies the color and that's not correct.

[00:22:43] Speaker 03:
The application of the color is based on the sorting.

[00:22:47] Speaker 03:
Now if the board

[00:22:49] Speaker 03:
If you find rather that the board did not apply the rationale that Dr. Zida had stated then remand is appropriate here for the board to revisit its decision and rethink things because as it's written they rely on something else in Murphy and that is the display operation.

[00:23:14] Speaker 03:
One of the consequences

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of these different types of operations was pointed out by Dr. Bichard in his testimony.

[00:23:22] Speaker 03:
And you saw that in some of the images reproduced from his declaration.

[00:23:28] Speaker 03:
I think these appear in the appendix, for example, on pages 1819 and 1820.

[00:23:40] Speaker 03:
In the Murphy approach to the coloring,

[00:23:47] Speaker 03:
Regardless of the, for example, Hounsfeld intensity of a liver image, the entire liver would be colored the same because the coloring is not based on a property of the voxel.

[00:24:01] Speaker 03:
Whereas with the D3D patent, even though it's the same liver, if there were different intensity levels from the CT scan, the liver would be colored differently.

[00:24:14] Speaker 03:
And so that produces a very different result.

[00:24:17] Speaker 03:
And that was the basis for Dr. Brejah concluding that the two are not the same.

[00:24:23] Speaker 01:
Can I ask you just one housekeeping question, which is on the statement of related cases, this case pending in MD Florida?

[00:24:30] Speaker 03:
Yes, Your Honor.

[00:24:31] Speaker 01:
Was this stay, that involves the 771?

[00:24:33] Speaker 01:
It does.

[00:24:34] Speaker 01:
And has that proceeding been stayed pending the Peach Out Appeal, or is it ongoing?

[00:24:40] Speaker 03:
I think it's stayed, Your Honor.

[00:24:41] Speaker 03:
I'm not directly involved in the litigation, but I believe it's stayed.

[00:24:46] Speaker 01:
Thank you.

[00:24:47] Speaker 01:
Thank you.

[00:24:47] Speaker 01:
We thank both sides.