[00:00:14] Speaker 03:
23-2063, Kirsh research versus JST.

[00:01:09] Speaker 03:
Ms.

[00:01:10] Speaker 03:
Hayden, good morning.

[00:01:11] Speaker 00:
Good morning.

[00:01:13] Speaker 00:
Good morning, Your Honors.

[00:01:14] Speaker 00:
May it please the court?

[00:01:16] Speaker 00:
I am Amy Hayden on behalf of the Appellant, Kirsh Research and Development.

[00:01:20] Speaker 00:
Our briefing presents numerous reasons.

[00:01:22] Speaker 03:
Can you change your voice just a little?

[00:01:24] Speaker 00:
Yes, Your Honor.

[00:01:25] Speaker 00:
Our briefing presents numerous reasons for why the P-tab should be reversed in this case.

[00:01:29] Speaker 00:
But I'd like to focus on one, namely that the board erred in construing the term extrusion lamination because its construction is at odds with the intrinsic record.

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Thus, the board likewise erred when it concluded that the Lou patent invalidated Kersh's patent claims, just claims 1 to 20, in view of that construction.

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Reversal rather than remand is appropriate here, because under the proper construction of extrusion lamination,

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the only evidence-based conclusion is that Lue does not invalidate the challenged claims.

[00:01:59] Speaker 03:
So I don't mean this pejoratively, but this claim construction issue seems to have been a moving target throughout the proceedings.

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So what is your view now on the shortcomings, the problem of the claim construction before it was used?

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Yes, Your Honor.

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So addressing the moving target issue, we disagree that Kirsh's proposal has been a moving target.

[00:02:23] Speaker 03:
OK, so tell us what it is now and what it was before the board, what your claim construction is, and what your problem is with their claim construction.

[00:02:30] Speaker 00:
It's the same construction that we had before the board.

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Our position is that the proper plane meeting understanding of extrusion lamination is the specific process that uses both extrusion and pressing to laminate two layers together using the polymer melt as a binder.

[00:02:46] Speaker 03:
And we don't think- Is that included?

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What about there are two other sub-issues that I read in the briefs.

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One is three layers.

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Is that included in your claim construction?

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Is that a problem you have with the board's claim construction?

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Yes.

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Depending on what you call a layer, there are three layers in the construction that we presented before the board.

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So your construction includes three layers?

[00:03:08] Speaker 04:
You're counting the extrudate as one of the three layers?

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In the answer that I just gave, yes.

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But I think that there was confusion because our construction described two layers, two

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which would be the two solid materials that are joined using the melt.

[00:03:24] Speaker 04:
What you're saying is solid, extruded, polymer, solid.

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That's the way you conceive extrusion lamination.

[00:03:33] Speaker 04:
Yes, that's correct.

[00:03:34] Speaker 01:
And if one of those, if the extruded was part of the solid layer, so that one might say there's only two layers, you say that's outside the scope of our claims.

[00:03:47] Speaker 01:
You need it to be three as opposed to just two.

[00:03:51] Speaker 01:
That's your construction.

[00:03:52] Speaker 00:
Yes, that's the construction would be the two solid layers with the extruded polymer layer.

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Two plus one being three.

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I think what my colleague that argued before the PTAB did make that analogy, and I think it is a simple analogy, but it is a suitable one here with the solid layers being like bread and the

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melted cheese being like the melted extruded polymer that joins the energy wires together.

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What other gaps or differences are reached in your clean construction either proposing or the one that the board adopted?

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That is the main one.

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It is somewhat unclear about whether the board included a pressing limitation in its construction that was raised in the brief, but they did

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But the board did discuss whether or not the lieu prior art reference disclosed pressing.

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So it appears that they may have included that.

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But if they did not include a pressure requirement, that would be something that would be different with our construction, too.

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And I'd also like to point out that the petitioner's construction also contained a pressing requirement.

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In the board's final written decision, they didn't provide an explicit definition for extrusion lamination, which is perhaps why this pressure issue isn't that clear.

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They rather came to two conclusions about the scope of that term.

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One, that extrusion lamination doesn't require two layers that are joined together using the extruded polymer belt.

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Rather, there could be a single layer that's coated with the

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with the melt.

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And the second conclusion is that extrusion lamination and extrusion coating are not mutually exclusive.

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So taken together, these conclusions mean that the board concluded that extrusion lamination could just be coating a polymer melt onto a single layer.

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And that understanding is contrary to the intrinsic record as well as the extrinsic evidence that was presented to the board.

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If I may, I'd like to begin.

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Your best piece of evidence, intrinsic evidence, that supports the three versus two issue.

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Your Honor, I think that that would be the prosecution history that's discussed in the briefing.

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The Peterson distinction?

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The Peterson distinction and the applicant remarks that went along with the amendment in order to distinguish Peterson.

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And how does it dovetail with the cross-examination of your expert, Mr. Daniels?

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Is that problematic for you in terms of the construction you're presenting now?

[00:06:32] Speaker 00:
No, it's not, Your Honor.

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The construction that we're advocating and what the applicant stated during prosecution

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when making the amendment to add by extrusion limitation to the claims is consistent with what our expert had testified to in his declaration as well as a deposition both before the patent office as well as in depositions in district court.

[00:06:59] Speaker 01:
I thought he suggested it could be just two layers.

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Did he not?

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Your own expert?

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The testimony at best is unclear.

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There was a portion of

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testimony I think your honor may be referring to where there was a layer A and a layer B referred to.

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That testimony was actually read from an ITC proceeding on an entirely different patent.

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And the confusion may have come from something we were talking about earlier, how in his terminology, layers tend to refer to the solid materials that are joined together with the melt.

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And when he answered

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a question about extrusion lamination using his own words.

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He explained clearly in that.

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Did the board have reason to interpret this evidence or testimony from your own expert in favor of the petitioner's construction?

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The board did not address this testimony explicitly in its analysis.

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The only

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extrinsic evidence that it addressed, aside from just describing the evidence in the case, was that it credited petitioners' expert testimony.

[00:08:14] Speaker 00:
The board did not address Dr. Daniel's testimony, and it also did not address other extrinsic evidence of record, including dictionary definitions and other materials that the party provided.

[00:08:27] Speaker 04:
Now, this testimony about the two layers, this is taken at appendix 6075.

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Is that the section?

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of his deposition that we're talking about, 6075.

[00:08:40] Speaker 00:
Oh, I was actually referring to the testimony that is on Appendix 6278, but I'm happy to take a look at that material as well.

[00:08:59] Speaker 00:
And did Your Honor have a question about this?

[00:09:01] Speaker 00:
Well, yes.

[00:09:04] Speaker 04:
I'm looking to his testimony starting at line seven and through 11.

[00:09:14] Speaker 04:
You referred to a laminate two layers together.

[00:09:17] Speaker 04:
That's correct.

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Well, at least two layers.

[00:09:18] Speaker 04:
Yes, yes.

[00:09:21] Speaker 04:
Now, are you saying that what he's saying is that two solid layers will exceed it

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in between laminating them together as the interpretation you're giving out?

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Yes, exactly.

[00:09:33] Speaker 00:
And looking at his testimony, well, looking at the question at line 12, it reads, and those at least two layers could, for instance, be a scrim and a slip-resistant layer of extrudipolypropylene.

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Here the question referred to extruded polypropylene, but was referring to a slip resistant layer.

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This was referring to a pre-extruded layer of polypropylene.

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This wasn't referring to the polymer melt that would join the reinforcing scrim and the slip resistant layer together.

[00:10:06] Speaker 01:
I would like to hear your explanation of 6278 as well, which I think is the portion of the deposition of your expert that you were referring to.

[00:10:19] Speaker 00:
Yes, Your Honor.

[00:10:20] Speaker 01:
It seems like they're the experts being read testimony that he gave in another proceeding, is that right?

[00:10:27] Speaker 00:
Yes, that's right.

[00:10:28] Speaker 00:
He was read testimony from an ITC proceeding that involved a different patent than the one that we are discussing here, a patent that's not in the same family as the 42 patents.

[00:10:43] Speaker 01:
Okay, because he does seem to agree that at least with respect to that other patent, that if one were to extrude layer A onto layer B to come up with a two-layer product, would that be considered extrusion lamination?

[00:10:59] Speaker 01:
That's our term in dispute here.

[00:11:02] Speaker 01:
And he says essentially yes, because he says only if there is pressure.

[00:11:05] Speaker 01:
That's a fair reading of his testimony there.

[00:11:08] Speaker 01:
You just say it doesn't apply to the patent in front of us.

[00:11:12] Speaker 00:
It doesn't apply to the patent in front of us.

[00:11:15] Speaker 00:
And looking at his testimony on, I believe that you were looking at the testimony on Appendix 6278 at the top of that page.

[00:11:25] Speaker 00:
But looking at his testimony before that, this line of questioning went on for quite some time.

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is on Appendix 6277.

[00:11:40] Speaker 00:
He explained that in a specific case where the conditions were that you extrude a material and bring it together with other components, components plural, and combine them in a design manner with the design manner, meaning layers, again plural, coming together with the extruded layer through a process that applies pressure.

[00:11:59] Speaker 00:
That's extrusion lamination.

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So when putting this in his own words, instead of being presented a hypothetical from

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testimony from another case, he made clear that the construction that he was espousing is the same that I'm espousing today and that Kirsch espoused throughout the entire IPR proceeding below.

[00:12:16] Speaker 04:
Well on 6275 he answers the question about what is considered exclusion lamination.

[00:12:23] Speaker 04:
Now this is to be sure from a different proceeding, but he does say there are laminates made which involve excluding a material onto a substrate and that is a subset of exclusion lamination.

[00:12:36] Speaker 04:
That struck me as being certainly suggesting that extrusion material on top of the substrate is lamination.

[00:12:47] Speaker 00:
Understood, Your Honor.

[00:12:48] Speaker 00:
But that testimony does not exclude the possibility of a third layer that's included in his construction.

[00:12:55] Speaker 04:
No, you could have 10 layers.

[00:12:57] Speaker 04:
But it does seem to say that, at minimum, you have to have two layers.

[00:13:07] Speaker 00:
I would disagree because he is talking here, I'm looking at line three.

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He said, like, because this is the testimony that you read, so I won't burden everyone with reading again.

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But he says that there's laminates made where you extrude material onto a substrate that's not inconsistent with their needing to be

[00:13:27] Speaker 00:
three layers, the extruded layer and two substrates.

[00:13:31] Speaker 00:
Just because he said that there's extrusion onto the substrate, that's true with the three-layer product as well.

[00:14:15] Speaker 02:
Good morning.

[00:14:17] Speaker 02:
May it please the Court, John Newcomb, on behalf of the Appellee GAF Materials.

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With me today is my valued co-counsel, Edward Tulin.

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I'd like to start by reading for the Court the question which was put to Mr. Kaskowski at his deposition.

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The question was, and I'm reading from Appendix Page 6520, Your Honor.

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This was our expert being deposed by the Patent Owners Council for the IPR, starting line six of this transcript page.

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Question, OK, what would a person of ordinary skill in the art understand the term extrusion lamination to mean?

[00:15:09] Speaker 02:
And I won't read for the record because I don't want to put the court to sleep, but the experts answer there too.

[00:15:14] Speaker 02:
The reason I wanted to start there is that issue one on appeal is whether the board committed an abusive discretion when it considered a selection of testimony from Mr. Kaskowski about how an ordinarily skilled artisan would have, in the aughts, understood the plain meaning of the term extrusion lamination.

[00:15:37] Speaker 02:
In the appellant's reply brief, this testimony is referred to as an unexpected utterance, as though, for example, GAF had impregnated the IPR proceeding with new broadened expert testimony through redirect questioning at a deposition.

[00:15:53] Speaker 02:
Or the expert was asked his home address and then decided to give a brand new expert opinion in response to that question.

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That's not what happened.

[00:16:01] Speaker 02:
What happened here is that Mr. Kaskowski was put up for a deposition.

[00:16:05] Speaker 02:
He was asked a question point blank about the plain meaning of extrusion lamination, and he answered that.

[00:16:12] Speaker 02:
So whether the board committed an abuse of discretion, our first point is the evidence in question is evidence that was elicited by the Patent Owners Council.

[00:16:22] Speaker 02:
Second point.

[00:16:24] Speaker 02:
The only reason the board saw this testimony about the plain meaning of extrusion lamination is because the patent owner filed it with the board.

[00:16:33] Speaker 02:
So to overly summarize, the argument before you is that the board committed an abuse of discretion when it read a deposition transcript that the patent owner filed.

[00:16:43] Speaker 03:
Well, fair enough.

[00:16:43] Speaker 03:
And that's certainly in the briefs.

[00:16:45] Speaker 03:
But I understood at least the discussion in the argument this morning.

[00:16:49] Speaker 03:
was not on the APA use of discretion issue.

[00:16:52] Speaker 03:
It was really challenging claim construction.

[00:16:55] Speaker 03:
So why don't you address that matter?

[00:16:57] Speaker 02:
Happy to do that, Your Honor.

[00:17:09] Speaker 02:
The first piece of material that I would point your honor's attention to on whether a extrusion lamination can be a two-layer product, with one layer being the substrate and the other being the extrudate, is Claim 1 itself.

[00:17:25] Speaker 02:
Claim 1 refers to a thermoplastic material, or what we're calling today the substrate, in one limitation.

[00:17:35] Speaker 02:
It also refers to, in the second limitation,

[00:17:39] Speaker 02:
the scrim.

[00:17:41] Speaker 02:
Quote, a roofing, and I am reading from appendix 80, column 6, starting line 21 of the 482 patent.

[00:17:50] Speaker 02:
A roofing underlayment positioned between a roof support structure and an overlayment comprising a reinforcing scrim of interwoven strands for supporting tensile forces in multiple directions and

[00:18:05] Speaker 02:
at least one layer of thermoplastic material affixed to a side of the reinforcing scrim by extrusion lamination for providing a weather resistant barrier.

[00:18:18] Speaker 02:
My point is not to be making a claim construction intrinsic argument to you.

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My point is to say that the substantial evidence supporting the board's finding about how a skilled artisan would understand the plain meaning of extrusion lamination in the relevant time period

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is further consistent with and supported by the claim language itself.

[00:18:39] Speaker 02:
There's a discussion of one scrim and one layer of the thermoplastic material.

[00:18:44] Speaker 03:
What about your friends that had to say about the prosecution history?

[00:18:48] Speaker 02:
I just may be reading the prosecution history file a little differently than my friend.

[00:18:52] Speaker 02:
I've read the history.

[00:18:54] Speaker 02:
The patent or the applicant certainly introduced Peterson and discussed a distinction with Peterson between extrusion lamination, with the insertion of that phrase, and the

[00:19:04] Speaker 02:
what was it, calendar rubbering.

[00:19:06] Speaker 02:
Pardon me, I'm going to get it.

[00:19:08] Speaker 02:
I'm going to get the phrase.

[00:19:10] Speaker 02:
And rubber mill calendaring.

[00:19:12] Speaker 02:
There was no discussion in that portion of the file wrapper or anywhere else about extrusion lamination being a multi-scrim or multi-layer in addition to the thermoplastic layer application.

[00:19:26] Speaker 02:
So I'm not sure how good of an answer that is, Your Honor, because I just don't see how the Peterson distinction during prosecution supports or undermines the multi-layer debate.

[00:19:38] Speaker 03:
And what about the coding question?

[00:19:42] Speaker 02:
Well, I think if you read, you mean about the slip resistant coding?

[00:19:46] Speaker 02:
Yeah.

[00:19:46] Speaker 02:
So if you read the patent, there is no question, if you read, for example, claim two, that, let me take a step back.

[00:19:56] Speaker 02:
There was an exchange between Judge Bryson and my friend about, well, it could be more.

[00:20:00] Speaker 02:
It could be 10 layers, I think his honor said.

[00:20:03] Speaker 02:
We would agree with that.

[00:20:04] Speaker 02:
The point of extrusion lamination to an ordinarily skilled artisan was you needed at least the extradate and the substrate.

[00:20:10] Speaker 02:
You could certainly go beyond that.

[00:20:13] Speaker 02:
So if you reclaim two, for example, there's an explanation that one or more of the layers could be a slip-resistant surface.

[00:20:20] Speaker 02:
But that doesn't change.

[00:20:22] Speaker 02:
either the substantial evidence supporting the two-layer finding of the board as to extrusion lamination.

[00:20:28] Speaker 02:
And I don't think it really matters whether the scrim is slip-resistant or not, nor whether there are multiple scrims.

[00:20:36] Speaker 01:
You've said substantial evidence several times about the claim construction and you seem to run away from the claim language that you've brought up.

[00:20:45] Speaker 01:
Is it your contention that this construction cannot be affirmed just on the intrinsic evidence as a matter of law?

[00:20:53] Speaker 02:
If anything I've said today suggests to you I'm running from the claim language.

[00:20:57] Speaker 01:
You have suggested that.

[00:20:59] Speaker 02:
That is a miscommunication on my part.

[00:21:01] Speaker 03:
We were trying to get a better standard of review by relying on the extent of evidence, but I appreciate the judge starts cautioning you.

[00:21:10] Speaker 02:
So to me, there's a background issue, which is on appeal.

[00:21:15] Speaker 02:
And I'm going to get to your honor's question very quickly.

[00:21:17] Speaker 02:
I just want to put it into context.

[00:21:19] Speaker 02:
On appeal, what we've heard from the patent owner is,

[00:21:22] Speaker 02:
This went wrong because there was a late disclosed claim construction position with the reply.

[00:21:29] Speaker 02:
That's not how the parties, even the Patent Owner, were addressing this issue before the board.

[00:21:36] Speaker 02:
When GAF cited the testimony of Mr. Kaskowski in its reply,

[00:21:40] Speaker 02:
The patent owner then got a surreply.

[00:21:42] Speaker 02:
The surreply did not say, we have a problem that's a claim construction.

[00:21:46] Speaker 02:
The surreply said, let's debate what the meaning is of this phrase.

[00:21:51] Speaker 02:
Both sides consistently, in their written submissions to the board, were addressing this debate not as a claim construction process, but as an evidentiary debate about how that ordinarily skilled artisan would understand the claim meaning.

[00:22:07] Speaker 02:
Now, to your honor's question,

[00:22:09] Speaker 02:
We're certainly not running from the claim language.

[00:22:11] Speaker 02:
We see it to be fully consistent with the two-layer solution.

[00:22:15] Speaker 01:
And on appeal, do we have a claim construction issue that we need to resolve as a matter of law?

[00:22:20] Speaker 01:
Or do you think that's not what's before us?

[00:22:24] Speaker 02:
I think that affirmance is merited whether it is de novo or whether it is a substantial evidence record.

[00:22:30] Speaker 02:
I can see the argument both ways.

[00:22:32] Speaker 03:
On one hand, if this- But we need to decide.

[00:22:37] Speaker 02:
If the court considers what the board did in its interpretation or its finding about the plain meaning to opposita in the aughts to be a claim construction, then it would be subject to a de novo review.

[00:22:53] Speaker 02:
if alternatively you find it to be a fact-finding or a subsidiary finding to answer that question, then it would be substantial evidence.

[00:23:01] Speaker 02:
And I don't mean to be running from that question.

[00:23:05] Speaker 03:
Whatever standard of review applies, you've got to resolve the question about what that claim means in terms of the number of layers required or the coding or whatever.

[00:23:17] Speaker 02:
Well, why don't I do this?

[00:23:19] Speaker 02:
I am going to, for the sake of argument, treat it right now as a de novo review standard, as a claim construction.

[00:23:25] Speaker 02:
And I would point the court to the following.

[00:23:28] Speaker 02:
Number one, as I just stated, it's claim one itself, in which there's a mention of a singular scrim, and there is a mention of a layer of thermoplastic material.

[00:23:39] Speaker 02:
Number two, the Kaskowski deposition testimony at appendix 6520 and 6538.

[00:23:46] Speaker 02:
Number three, the Daniels, which is the Kersh expert testimony, including that 60, pardon me, appendix 6075 and 6118.

[00:23:56] Speaker 02:
Also, the Daniels testimony from the Texas proceeding.

[00:24:01] Speaker 01:
About the specification, does it have an embodiment with just two layers?

[00:24:16] Speaker 02:
No.

[00:24:17] Speaker 02:
As I read at least the figures, we are seeing multi-layers.

[00:24:22] Speaker 01:
So you would acknowledge that the specification cuts against you because it only, I know it's not dispositive, but to the extent we have to consider the specification, it only discloses embodiments of three or more layers?

[00:24:38] Speaker 02:
Not quite, Your Honor.

[00:24:40] Speaker 02:
I would direct the court to the difference between claim one versus claim two as an initial matter.

[00:24:45] Speaker 02:
where claim one on its face describes a two-layer solution.

[00:24:54] Speaker 02:
And then if you read claim two and the dependent claims that follow thereafter, there's then recognition of additional layers of substrates.

[00:25:14] Speaker 02:
I'm happy to turn to whether Lou discloses extrusion lamination.

[00:25:17] Speaker 02:
That was the other one of the two issues addressed by my friend.

[00:25:20] Speaker 02:
But unless the court has further questions on the meaning or construction, as the case may be, of extrusion lamination.

[00:25:29] Speaker 03:
And her argument was, again, I mean, under her point of construction, Lou doesn't.

[00:25:33] Speaker 03:
But I guess she may have it.

[00:25:35] Speaker 03:
Is the other subject on the argument under Voight's construction?

[00:25:39] Speaker 03:
Lou doesn't apply.

[00:25:42] Speaker 02:
As I understand my friend's argument, it is that the board erred when it found that extrusion lamination could be just a substrate and extradate.

[00:25:49] Speaker 02:
You had to have two substrates.

[00:25:53] Speaker 02:
Lew, the board found, anticipated claim one and others because it showed at least that one substrate and at least that one extradate.

[00:26:04] Speaker 02:
The board stopped there, given its finding of the meaning of extrusion lamination.

[00:26:08] Speaker 02:
If we were to go beyond that, then we go straight into Howells.

[00:26:13] Speaker 02:
And I am reading to the court from appendix 5210.

[00:26:16] Speaker 02:
Quote, the membrane can be prepared with two or more layers of open mesh fabric.

[00:26:25] Speaker 02:
As long as there is sufficient spacing between the open meshes to permit the molten thermoplastic to enter into and go through the open mesh,

[00:26:32] Speaker 02:
to complete, encapsulate the mesh fiber, and fuse the two extrusions of thermoplastic together.

[00:26:38] Speaker 04:
You're in Howells at this point?

[00:26:40] Speaker 02:
I am in Howells right now.

[00:26:43] Speaker 04:
The board, if I recall correctly, is not predicated to rule them on Howells, right?

[00:26:48] Speaker 02:
That's right.

[00:26:49] Speaker 04:
So that would create a 10-way problem.

[00:26:52] Speaker 02:
Pardon me, a what problem?

[00:26:53] Speaker 04:
A 10-way problem.

[00:26:54] Speaker 02:
But it could.

[00:26:55] Speaker 02:
Look, what the appellant here would like for you to do is to kick this entirely on the idea.

[00:27:02] Speaker 02:
That's not right at all.

[00:27:05] Speaker 03:
Well, we couldn't decide this case based on how it was.

[00:27:07] Speaker 03:
Right.

[00:27:07] Speaker 03:
We had just to bring it up as an alternative in case we reversed on the first.

[00:27:11] Speaker 03:
That's right.

[00:27:12] Speaker 03:
We could send it back on how it was.

[00:27:14] Speaker 04:
We couldn't decide it in your paper.

[00:27:17] Speaker 02:
Well, we've argued that you can on the idea that a remand would be futile.

[00:27:20] Speaker 04:
But given and generate, do you continue to press that argument?

[00:27:24] Speaker 02:
we would prefer a remand over a reversal, Your Honor.

[00:27:27] Speaker 04:
But do you think it would be error for us to affirm based on Howells, given the fact that the board did not base its opinion on Howells?

[00:27:37] Speaker 02:
We would concede that, Your Honor.

[00:27:39] Speaker 04:
OK.

[00:27:43] Speaker 02:
If one reads Lou,

[00:27:46] Speaker 02:
I would direct the court to a couple of sections of that.

[00:27:50] Speaker 02:
Number one, if you read the specification, column one, starting line 15, the specification describes a roofing underlayment.

[00:27:58] Speaker 02:
If you next go to claim one, claim one describes in quite detail the creation of an underlayment binding a polypropylene, aka a thermoplastic, to a fibrous base sheet through the use of a calendaring process.

[00:28:12] Speaker 02:
If the court then reads Figures 1 and 2 of Lew, you see in Figure 1 the nip, which applies the extrudate to the substrate.

[00:28:22] Speaker 02:
That's in Item 20 of Figure 1.

[00:28:24] Speaker 02:
And then you see in Figure 2, through the calendaring rolls, 50 and 60 applying pressure for the binding of the thermoplastic to the fibrous fabric.

[00:28:39] Speaker 02:
I am happy to yield the remainder of my time unless the court has any questions.

[00:28:43] Speaker 02:
Thank you.

[00:29:03] Speaker 00:
I wanted to begin by addressing the standard review issue that my friend discussed.

[00:29:08] Speaker 00:
It's clear under this court's precedent that treatment, both the ultimate conclusion of claim construction as well as the board's treatment of the intrinsic evidence,

[00:29:19] Speaker 00:
is subject to de novo review.

[00:29:22] Speaker 01:
I understand the way you have characterized the appeal.

[00:29:24] Speaker 01:
There's the APA issue, which we review for abuse of discretion.

[00:29:29] Speaker 01:
And then it's claim construction, which you say is de novo, although maybe there are subsidiary fact findings.

[00:29:34] Speaker 01:
And then there's lieu.

[00:29:36] Speaker 01:
But lieu, you only have an argument on lieu if we do something to the claim construction.

[00:29:41] Speaker 01:
If we affirm the claim construction, you have no extra argument on lieu.

[00:29:45] Speaker 01:
Do I understand the appeal correctly?

[00:29:47] Speaker 00:
Almost, Your Honor.

[00:29:50] Speaker 00:
I would point out that one of our arguments on LUE on whether or not there is pressure that is applied by LUE that's relevant to the extrusion lamination limitation, that may or may not turn on the claim construction.

[00:30:02] Speaker 00:
If the board included a pressure requirement in its construction, we argue that there is not.

[00:30:09] Speaker 00:
There's just not disclosure.

[00:30:10] Speaker 01:
You say LUE does not disclose pressure as your contention.

[00:30:14] Speaker 00:
Yes, that's right.

[00:30:15] Speaker 04:
At least it doesn't disclose pressure contemporaneous with the extrusion.

[00:30:21] Speaker 00:
Contemporaneous or at least contemporaneous enough before the polymer milk cools so that pressure can be used to bind the layers together.

[00:30:32] Speaker 00:
And I also wanted to discuss the claims, the patent claims.

[00:30:36] Speaker 00:
I know that my friend referred to those as well.

[00:30:39] Speaker 00:
Claim 1 was amended to add the by-extrusion-lamination limitation.

[00:30:44] Speaker 00:
At the same time, a claim not at issue on this appeal, another independent claim, 21, was amended to add different language, extruded to cover.

[00:30:52] Speaker 00:
And there's a presumption that those two phrases have to mean something different.

[00:30:56] Speaker 00:
But under my friend and petitioners' positioning in claim construction, they would mean the same thing.

[00:31:02] Speaker 00:
So that can't be correct.

[00:31:06] Speaker 00:
And then turning quickly to the file history, I wanted to take a look at what the applicant said there.

[00:31:12] Speaker 00:
And because my friend is incorrect that there is not a description of two layers being bound together with a binder, I'm reading from, I believe it is appendix 5076.

[00:31:26] Speaker 00:
I have five motions.

[00:31:32] Speaker 00:
Excuse me, it's 5071.

[00:31:37] Speaker 00:
And in distinguishing Peterson, there is the extrusion aspect that distinguishes Peterson.

[00:31:42] Speaker 00:
But the applicant went a step further and explained what he meant by extrusion lamination.

[00:31:46] Speaker 00:
He stated that, contrary, the roofing underlayment of the present invention is formed by an extrusion lamination process, which bonds the various layers together, including the preformed films, reinforcement scrim, and slip resist material.

[00:32:01] Speaker 00:
Notably, and consistent with the plain meaning that we're advocating for here, the applicant did not include the extruded thermoplastic polymer, the polymer melt, or the binder as one of those possible layers that could be joined together in an extrusion lamination process, because that's what's usually being used to join the other two layers together.

[00:32:19] Speaker 00:
And I see my time is up, unless Your Honor has a question.

[00:32:21] Speaker 03:
Thanks both of you.