[00:00:00] Speaker 03: The first case is Karam Technologies versus Ford Motor and BMW, 2024, 1183, and 1480. [00:00:10] Speaker 03: And Judge Toronto is online. [00:00:18] Speaker 03: We have a nice view of him. [00:00:21] Speaker 03: And Mr. Kelson. [00:00:24] Speaker 00: Thank you, Your Honor, and may it please the court, Taylor Kelston, on behalf of the plaintiff, appellant, Karam Technologies. [00:00:30] Speaker 00: The district court made errors in the construction of two claim terms of the asserted patents and granted summary judgment of non-infringement based on those errors. [00:00:39] Speaker 00: We ask the court to correct those errors, vacate the judgments of non-infringement, and remand for further proceedings. [00:00:46] Speaker 00: I'll address the detecting a change or a detective change limitation first, which is found in claim one of the 475 patent and claim one of the 416 patent. [00:00:58] Speaker 05: On appeal here, is it only literal infringement? [00:01:01] Speaker 05: There's no DOE. [00:01:02] Speaker 05: Arguments on appeal, is that correct? [00:01:04] Speaker 00: There were never DOE arguments with respect to this limitation, Your Honor. [00:01:08] Speaker 00: There were DOE arguments that were litigated below with respect to the controller limitation in view of changes to the governing case law. [00:01:17] Speaker 00: Karam sought to add a DOE infringement opinion below. [00:01:21] Speaker 00: That is not on appeal. [00:01:23] Speaker 00: However, the only surviving infringement allegation on appeal is literal infringement. [00:01:27] Speaker 00: That's correct. [00:01:28] Speaker 05: And what did the district court do with that seeking to add that DOE argument? [00:01:33] Speaker 05: Was it untimely? [00:01:34] Speaker 00: It was largely an issue of timeliness, Your Honor. [00:01:36] Speaker 00: Yes, Karam took the position that changes in governing law merited the addition of that DOE opinion after the close of expert reports. [00:01:47] Speaker 00: The district court disagreed. [00:01:49] Speaker 00: And that DOE opinion is not, we did not appeal the denial of the addition of that DOE opinion. [00:01:58] Speaker 00: So with respect to the change limitation, the district court correctly determined that a change means a vehicle lateral acceleration that is different than a previous vehicle lateral acceleration. [00:02:09] Speaker 00: But when the district court applied that construction to Ford's accused systems, it added a requirement to its construction, effectively changing its construction, requiring a formula that compares one lateral acceleration value with another. [00:02:25] Speaker 00: And this was error. [00:02:26] Speaker 00: A direct comparison of one value to another is, of course, one way to detect a change in a quantity like lateral acceleration, but it's not the only way. [00:02:37] Speaker 00: And the district court improperly excluded systems that detect changes in an indirect way, for example, by performing repeated comparisons of the lateral acceleration value to a fixed threshold and taking a certain action only when that threshold is exceeded. [00:02:55] Speaker 00: And the specification of the patent, and importantly, the structure of the claims, confirms that the patent is structured in such a way that exceeding a threshold is one type of change that can occur to a lateral acceleration value. [00:03:10] Speaker 04: Can I ask this question? [00:03:15] Speaker 04: In the accused product, the action of reducing speed [00:03:24] Speaker 04: by lowering torque or something, is taken whenever there is an exceeding of the threshold, not including just repeated exceedings of the threshold without perhaps even any change in the previous value and the current value of the measured lateral acceleration. [00:03:54] Speaker 00: Your Honor, the evidence regarding the accused products indicates that the repeated checks for whether lateral acceleration has exceeded a threshold are performed iteratively over and over and over again in a control loop, so long as lateral acceleration is below the threshold. [00:04:13] Speaker 00: And then when that threshold is exceeded, [00:04:16] Speaker 00: That is the change, and a control routine is enacted to reduce the vehicle speed. [00:04:22] Speaker 00: Reducing torque is the first option, and then if that doesn't work. [00:04:25] Speaker 04: And do the measurements continue thereafter? [00:04:28] Speaker 04: I assume they do. [00:04:30] Speaker 00: They do at some point, Your Honor. [00:04:32] Speaker 00: I am frankly standing here not certain what the evidence indicates about the nature of the measurements that occur continuously after that change has occurred. [00:04:42] Speaker 00: But the point of the process that is accused of infringement is that iteration of the control loop when lateral acceleration goes from below a limit to above a limit, that is the change that's detected. [00:04:55] Speaker 00: And that is the change that results in the claimed actions reducing the vehicle. [00:05:00] Speaker 00: speed. [00:05:02] Speaker 04: The reason that you say that's detecting a change is that something like there's either memory in the detector or an associated component that has a record of the previous lateral acceleration [00:05:31] Speaker 04: was below the threshold, so what? [00:05:34] Speaker 00: implicitly yes your honor that that check is occurring and reoccurring and reoccurring so long as lateral acceleration is below the threshold and then when lateral acceleration exceeds the threshold the system begins doing something different specifically begins its routine to reduce the vehicle speed and the details of how that system works are of course not an issue that we're asking this court to reach directly but the evidence [00:06:04] Speaker 00: indicates, and we believe we could prove to a jury, that that is how this system is operating with respect to what happens after that change is detected from below the threshold to above the threshold. [00:06:17] Speaker 03: What about the controller? [00:06:19] Speaker 03: Excuse me. [00:06:23] Speaker 04: Go ahead. [00:06:24] Speaker 04: So just so that I understand, I guess my understanding is that repeated measurements of lateral acceleration [00:06:31] Speaker 04: Even when they are changing, as long as they're below the threshold, no breaking is effectuated. [00:06:42] Speaker 04: Repeated measurements above the threshold, even when there is a change, as long as it's above the threshold, the breaking will continue or maybe even be more. [00:06:59] Speaker 04: So it's just that. [00:07:00] Speaker 04: the one transition point that the system that you're accusing or that you want to include, you want to say to text a change because that one happens to be pressing threshold. [00:07:18] Speaker 00: That's correct, Your Honor. [00:07:19] Speaker 00: The change from below the threshold to above the threshold is the type of change that the system detects and that causes the system to begin performing the other claimed steps. [00:07:32] Speaker 00: It is certainly correct that there are other changes in lateral acceleration that the accused systems do not detect. [00:07:40] Speaker 00: And this is a point that both defendants made in their [00:07:43] Speaker 00: Briefing it, and we don't dispute that. [00:07:45] Speaker 00: If lateral acceleration is moving around below the threshold or moving around above the threshold, that is a type of change in the lateral acceleration value that the accused systems are not going to detect. [00:07:57] Speaker 00: And the claims don't require that they be capable of that detection. [00:08:01] Speaker 00: The claims require detection of a change. [00:08:04] Speaker 00: Here the specific change is the type of change where the value goes from below to above the threshold. [00:08:10] Speaker 00: And that is a change. [00:08:11] Speaker 00: There are other changes that are not detected, absolutely. [00:08:14] Speaker 05: Can I ask one quick question on this issue before we move on, Judgment? [00:08:17] Speaker 00: Yes. [00:08:17] Speaker 05: Okay. [00:08:19] Speaker 05: So with respect to Claim 5 of the 475 patent, why wouldn't the additional limitations of Claim 5 be rendered superfluous? [00:08:29] Speaker 05: if we adopt your proposed construction, would change limitations? [00:08:33] Speaker 00: Certainly, Your Honor. [00:08:34] Speaker 00: So it is possible that there is an accused system. [00:08:38] Speaker 00: In fact, the system we accused satisfies both limitation 1E of claim five and the [00:08:46] Speaker 00: dependent limitation of claim five in the same step. [00:08:51] Speaker 00: But that doesn't mean that claim five is superfluous. [00:08:53] Speaker 00: There are systems out there one can imagine that would satisfy claim one and not satisfy claim five. [00:09:00] Speaker 00: For example, a system might use a different method entirely to detect a change in lateral acceleration. [00:09:08] Speaker 00: The system might compute the derivative of lateral acceleration, for example, and look for changes that way. [00:09:13] Speaker 00: That would infringe claim one, presuming all of the other steps were satisfied, but it wouldn't infringe claim five because the system is never looking for a threshold. [00:09:22] Speaker 00: And that means that claim five is not superfluous to claim one. [00:09:26] Speaker 00: They're not claiming the same scope. [00:09:28] Speaker 00: It is possible those can be satisfied in the same step, but they don't have to be. [00:09:32] Speaker 00: You can do it a variety of different ways that may or may not additionally infringe claim five. [00:09:36] Speaker 03: What about control of singular or plural? [00:09:39] Speaker 00: Yes, Your Honor. [00:09:41] Speaker 00: The district court below determined that the A controller in claim 10 of the 416 patent must be a singular controller that performs all of the recited functions of said controller. [00:09:52] Speaker 00: And that was error. [00:09:54] Speaker 00: The specification of the patent makes clear that the controller referenced in claim 10 can be one or more controllers acting cooperatively. [00:10:03] Speaker 00: The clearest illustration of this is that if you map the claimed functionality of claim 10 onto the structure shown in figure 2 of the 416 patent, you see that all of the functions recited in claim 10 are not performed by the same controller of figure 2. [00:10:23] Speaker 00: Many of the functions are performed by controller 222 of figure 2, [00:10:28] Speaker 00: But Claim 10 indicates that the claimed controller is operative to reduce the vehicle speed. [00:10:34] Speaker 05: But what about the use of the language said controller within Claim 10 of the 416 patent? [00:10:41] Speaker 00: Your Honor, said controller refers back to a controller. [00:10:46] Speaker 00: And that a controller can be one or more controllers. [00:10:50] Speaker 00: Certainly it can be one, but it can be more than one as well. [00:10:53] Speaker 00: The said is just sets the answer. [00:10:55] Speaker 03: You're saying the said is controlled by a, rather than interpreting what a means. [00:11:05] Speaker 00: I believe that's correct, Your Honor. [00:11:08] Speaker 00: A is the antecedent basis for said. [00:11:12] Speaker 00: Whatever A captures, said also captures. [00:11:15] Speaker 00: And the question of what A and said capture comes back to what the specification discloses about what a controller is and how a controller operates in context. [00:11:26] Speaker 00: And what the specification discloses, taking the example of Figure 2, [00:11:30] Speaker 00: is that if you map the functionality of claim 10 onto figure 2, some of the claimed functionality is performed by controller 222. [00:11:39] Speaker 00: But controller 222 alone is not operative to reduce the vehicle speed. [00:11:44] Speaker 00: It offloads that functionality to braking system 212, which is itself described in column 4 as including a transmission controller and a brake booster controller, other controllers. [00:11:56] Speaker 03: In any event, we have to deal with a controller issue. [00:11:59] Speaker 03: no matter what we decide on detecting a change because of Claim 10. [00:12:06] Speaker 03: Claim 10 doesn't have the detecting a change limitation, right? [00:12:12] Speaker 00: Oh, correct, Your Honor, yes. [00:12:13] Speaker 00: I believe the Court does need to reach both of these disputes no matter how the change limitation is resolved. [00:12:19] Speaker 00: That's correct, yes. [00:12:22] Speaker 00: So the illustration in Figure 2 demonstrates... Claim 10 does have the detective change limitation though, doesn't it? [00:12:30] Speaker 00: I apologize. [00:12:31] Speaker 00: I misstated that. [00:12:33] Speaker 05: Let's just try to make sure my understanding is correct. [00:12:37] Speaker 05: If we're looking at 416 Patent Claim 10, I thought it was also in that claim as well. [00:12:47] Speaker 04: I don't believe Claim 10 recites the... The bottom of the third paragraph? [00:12:54] Speaker 03: I don't say it. [00:12:55] Speaker 03: In any event, you're into your rebuttal time. [00:13:00] Speaker 03: You can come back with the answer. [00:13:02] Speaker 00: I certainly will, Your Honor. [00:13:03] Speaker 00: I don't believe it does, but I will confirm that, and I'll reserve my remaining time. [00:13:06] Speaker 00: Thank you. [00:13:11] Speaker 03: Mr. Weiner, is it? [00:13:12] Speaker 01: Weiner, yes, Your Honor. [00:13:19] Speaker 01: Thank you. [00:13:20] Speaker 01: May it please the court. [00:13:22] Speaker 01: The district court correctly construed both spirited claim terms in this case. [00:13:26] Speaker 01: Detecting a change because the plain and ordinary meaning of that term is backed up by every piece of the intrinsic record. [00:13:34] Speaker 01: It is detecting a change and not detecting a change in magnitude. [00:13:38] Speaker 01: Said controller, because this court's case law clearly states that when the term A is used to describe a device and followed by a function, adding further functions to said device, [00:13:51] Speaker 01: means that that device is one singular device or a group of devices, but at least one of which is capable of performing all the claimed functions. [00:14:01] Speaker 01: I'll start with detecting a change. [00:14:05] Speaker 01: What Karam asked the court to do is two things. [00:14:09] Speaker 01: And they say this at page 29 of their brief. [00:14:11] Speaker 01: Council restated it here. [00:14:13] Speaker 01: First, to construe the term to mean comparing a term to determine whether it's different than its previous value. [00:14:20] Speaker 01: So far, so good. [00:14:21] Speaker 01: No disagreement. [00:14:22] Speaker 01: That's the plain, ordinary meaning of detecting a change. [00:14:25] Speaker 04: But what's actually- I'm sorry. [00:14:27] Speaker 04: Can I say that it's agreed that the word [00:14:31] Speaker 04: Aaron is part of the construction. [00:14:37] Speaker 01: Kerem is asking the court to say, I'm sorry, Your Honor. [00:14:41] Speaker 01: If I said comparing, I misspoke. [00:14:43] Speaker 01: Any method determining the present value is different than a previous value. [00:14:48] Speaker 04: That's a big difference. [00:14:50] Speaker 04: Maybe it's what the whole issue is about. [00:14:53] Speaker 01: Yes, Your Honor. [00:14:53] Speaker 01: I apologize. [00:14:54] Speaker 01: I didn't mean to misstate it. [00:14:56] Speaker 01: What Kerem is asking the court to do, though, is add something [00:15:00] Speaker 01: additional to that, including by determining that the present value has exceeded a predetermined threshold. [00:15:07] Speaker 01: And that is where we part company, and that is where we differ. [00:15:10] Speaker 01: Because detecting a change means comparing two values, looking at something present and later, to determine whether a change has taken place. [00:15:19] Speaker 01: That's the sin qua non of the ordinary meaning of detecting a change. [00:15:23] Speaker 01: To put it grammatically, [00:15:25] Speaker 01: Detecting is the participle. [00:15:26] Speaker 01: It's the action we're taking. [00:15:27] Speaker 01: We are detecting something. [00:15:29] Speaker 01: What are we detecting? [00:15:30] Speaker 01: It must be a change. [00:15:32] Speaker 01: That meaning is backed up by and confirmed by what the applicant said in the prosecution history of this patent. [00:15:42] Speaker 01: What the applicant said is directly opposite of what Karam now asks the court to do. [00:15:47] Speaker 01: In the prosecution history, the applicant told the PTO, clearly a change in a variable [00:15:53] Speaker 01: is not at all the same thing as the magnitude of the variable. [00:15:57] Speaker 01: Now, the district court did not find disclaimer. [00:16:00] Speaker 01: And this court need not find disclaimer to rule in our favor. [00:16:04] Speaker 01: What we're saying is that plain, ordinary meaning controls. [00:16:07] Speaker 01: But if the court sees some daylight, some difference between that ordinary meaning and what Karam now asked for, certainly the prosecution history closes that door. [00:16:16] Speaker 04: This court's. [00:16:20] Speaker 04: So as I understand the heart of this, [00:16:23] Speaker 04: is that the theorem wants to include in the concept of detecting a change, an action taken by a system that repeatedly measures a value. [00:16:39] Speaker 04: And upon that value exceeding a particular threshold, for the first time, it now knows it's supposed to do something, namely break [00:16:53] Speaker 04: that has to be implicitly detecting a change. [00:16:58] Speaker 04: Because for the first time, the breaking action is taken. [00:17:03] Speaker 04: All the previous measurements, many times each second, did not trigger that breaking action because they were below the threshold. [00:17:16] Speaker 04: So when the threshold is met, that is necessarily a change from the previous measure. [00:17:22] Speaker 04: Why is that not detecting a change? [00:17:26] Speaker 01: Your honor, I agree that a change has occurred in that scenario. [00:17:29] Speaker 01: Where we disagree is that the system has detected a change. [00:17:33] Speaker 01: As we said below and as we repeated in our briefs here, the system is not asking whether a change has occurred. [00:17:40] Speaker 01: The question, what the system is detecting, [00:17:42] Speaker 01: Not whether a change has occurred, but are you above my threshold or below my threshold? [00:17:47] Speaker 01: So it's the key the key there your honor is the phrase detecting an example for for you Five o'clock it's broken. [00:17:55] Speaker 01: It will have the correct time displayed twice a day the clock is not Detecting anything about the time it's merely displaying the time the same could be said for a smoke alarm [00:18:05] Speaker 01: which isn't looking for changes in the amount of smoke. [00:18:08] Speaker 01: It's just looking for, are you above or below my threshold? [00:18:12] Speaker 01: So the key there, Your Honor, is in the phrase, or the part of the phrase, detecting. [00:18:16] Speaker 01: What's being detected is not the change. [00:18:19] Speaker 01: And that's exactly what the applicant told the PTO in the prosecution history. [00:18:25] Speaker 04: It's also- [00:18:36] Speaker 04: question when so much of the language here seems to me just to be asserting, it's this, it's not this. [00:18:43] Speaker 04: So the smoke alarm situation. [00:18:45] Speaker 04: So in my kitchen, smoke alarm doesn't go off for months on end. [00:18:52] Speaker 04: Then it goes off. [00:18:54] Speaker 04: You don't think a reasonable artisan would say, [00:18:59] Speaker 04: that the smoke alarm has detected a change in the smoke level from what it has been the last few months to now? [00:19:06] Speaker 01: No, Your Honor. [00:19:07] Speaker 01: I may have gotten too far into the weeds of how smoke detectors work, but the optical sensor in the detectors looking for changes in smoke is just asking [00:19:14] Speaker 01: Is there enough particulate in my way that I am above a magnitude? [00:19:19] Speaker 01: That's not detecting a change. [00:19:21] Speaker 01: And, Your Honor, to the extent we're looking for something grounding beyond just counsel argument and what ordinary meaning is, I would point to the prosecution history. [00:19:31] Speaker 01: I would point to the specification, which adds the necessary context to this patent. [00:19:36] Speaker 01: There in the specification, repeatedly, the patentee spoke of detecting [00:19:42] Speaker 01: Changes measuring lateral accelerations time filtering them which is part of that before later change analysis And then there are actual comparisons listed out in column five where figure four is discussed And the different changes are compared the only time the specification refers to a comparison of a magnitude of [00:20:04] Speaker 01: is in column six, lines 24 to 27, where the patentee says, after you've determined that the vehicle's in the curve, after you've gone through that process, [00:20:15] Speaker 01: of detecting changes to analyze where the vehicle is in the turn. [00:20:19] Speaker 01: That's when you may look at a magnitude. [00:20:21] Speaker 01: And if you exceed the magnitude, you may apply braking. [00:20:25] Speaker 01: So, Your Honor, it's not just say so, and it's not just an ordinary meeting debate. [00:20:32] Speaker 01: It is backed up by everything that's in the specification. [00:20:35] Speaker 01: The claims themselves say the same thing. [00:20:39] Speaker 01: The claim one of the 475 patent, for example, you detect a change, quote, based on a change in the measured lateral acceleration. [00:20:49] Speaker 01: That's what we're looking at, a change in the measured lateral acceleration, not comparisons of that measured lateral acceleration to a predetermined value or a magnitude. [00:21:00] Speaker 01: So, Your Honor, it's not just ordinary meaning. [00:21:03] Speaker 01: It's backed up by the specification, by the claims, and by the prosecution history. [00:21:09] Speaker 01: The example. [00:21:09] Speaker 04: When you return to the prosecution history, I think I remember you saying what you featured during the argument this morning is a sentence about change is different from magnitude, indisputable proposition. [00:21:33] Speaker 04: You didn't this morning at any rate rely on the distinguishing of, what is it, kato? [00:21:40] Speaker 04: Is that the prior art that was distinguished? [00:21:45] Speaker 04: And I wonder why not. [00:21:48] Speaker 01: Well, Your Honor, there are two pieces of prior art that were distinguished, Kato and Tsutsumi. [00:21:52] Speaker 01: The one that Ford focused on in his brief is the Tsutsumi reference, the 799 reference. [00:21:58] Speaker 01: And so, Your Honor, actually, that is important and critical because, as you know and as the Court knows, while the prior art [00:22:09] Speaker 01: The prior art that's being responded to is important to understanding the context of what the applicant is saying. [00:22:16] Speaker 01: And that prior art reference in column seven, lines 37 to 48, actually describes exactly what we're describing here as a magnitude system, a system that reacts and makes changes to acceleration. [00:22:29] Speaker 03: Mr. Weiner, why don't you deal with controller? [00:22:32] Speaker 03: Because BMW, I believe, is not going to be dealing with controller. [00:22:38] Speaker 03: Tell us why the court was correct. [00:22:41] Speaker 01: Certainly, Your Honor. [00:22:42] Speaker 01: In terms of controller, this court's case law in the Finjian case, Varma, Salazar, and others makes the proposition clear. [00:22:51] Speaker 01: A can be plural, it's true, in a general context with respect to some objects. [00:22:57] Speaker 01: When you start adding functions to that object, a controller that does such and such said controller to do this further task. [00:23:05] Speaker 01: Then what is required by the plain language of the term is that one of those controllers must do both tasks. [00:23:12] Speaker 03: Your opponent says said controller is determined by the meaning of a controller. [00:23:20] Speaker 03: You're arguing that said controller and its functions helps to determine what a controller means. [00:23:30] Speaker 01: Your Honor, I'm arguing that when a function is added through said, a controller must mean a controller that performs both of the listed functions. [00:23:43] Speaker 01: The court put it colorfully and neatly in the Varma case. [00:23:46] Speaker 01: If you have a dog and it must both fetch and roll over, it's not enough to infringe to have two dogs, one that can fetch and one that can roll over. [00:23:55] Speaker 01: Both functions, I don't know if that term applies to dogs, [00:23:59] Speaker 01: Both tasks have to be accomplished by at least one of the dogs. [00:24:03] Speaker 03: Whether that's colorful illustration depends upon the color of the dog. [00:24:08] Speaker 01: Perhaps, Your Honor. [00:24:09] Speaker 01: I can advise the court on that. [00:24:12] Speaker 04: In your address, figure two, or seven? [00:24:15] Speaker 05: I was going to say, can you do one housekeeping thing for me? [00:24:18] Speaker 05: Can you tell me exactly what the asserted claims are currently as they stand now? [00:24:25] Speaker 01: Yes, Your Honor. [00:24:26] Speaker 01: With respect to the 416 patent, it claims 6 and 10, and the 475 patent is claim 5. [00:24:36] Speaker 01: And then, Your Honor, you're asking me to address figure 2? [00:24:41] Speaker 04: Right. [00:24:41] Speaker 04: I think your opposing counsel relied on figure 2 as an illustration of how two different functions were cited in claim 1, or at least [00:24:54] Speaker 04: in claim five and its dependency on claim one are taken by two different controllers, the one, 222, and the one inside 212 according to the description. [00:25:10] Speaker 01: Yes, Your Honor. [00:25:10] Speaker 01: So briefly, as I see, my time is running short. [00:25:15] Speaker 01: Figure two describes only one controller. [00:25:17] Speaker 01: There's only one thing labeled as a controller. [00:25:19] Speaker 01: And if you go to the specification, column four, lines 30 to 37, what you'll see is the braking system described there is not a controller that takes in the inputs from the changes in acceleration and makes a determination about whether to brake. [00:25:35] Speaker 01: The braking system described is the car's base braking system. [00:25:39] Speaker 01: The controller, as defined in the claim, [00:25:41] Speaker 01: is something that takes in those inputs and makes the decision commanding braking. [00:25:45] Speaker 01: But the braking system itself, the things that squeeze rotors and maybe reduce engine torque, that's not the same thing as what's being described as the, quote, controller in either the specification, the figure, or the claims. [00:25:58] Speaker 04: And do you have a view on the question whether if Judge Andrews was right about detecting we need to reach claim 10 or don't? [00:26:08] Speaker 01: Your Honor, I believe you need to reach claim 10 regardless. [00:26:12] Speaker 04: Because the detecting requirement you don't think is in there? [00:26:18] Speaker 01: Your Honor, I believe that's correct. [00:26:23] Speaker 03: OK. [00:26:23] Speaker 03: Since I'm the controller here, let's move to BMW. [00:26:28] Speaker 01: Thank you, Your Honor. [00:26:41] Speaker 02: Good morning, Your Honor. [00:26:42] Speaker 02: May it please the court, Lionel Lavinou from Finnegan for the BMW Appellees. [00:26:47] Speaker 02: For us, as you noted, Judge Lorry, the only issue for us is claim six of the 416 patent, and specifically this concept of what is determining a detected change in lateral acceleration. [00:26:58] Speaker 03: Claim six. [00:26:59] Speaker 02: Claim six. [00:27:01] Speaker 02: Depends from independent claim one, Your Honor. [00:27:02] Speaker 02: Yes. [00:27:03] Speaker 03: Not claim 10. [00:27:05] Speaker 02: Correct. [00:27:06] Speaker 02: And Judge Toronto, I would just like to take your example and run with that, and hopefully move the ball in my favor, as you noted. [00:27:14] Speaker 02: The issue that you raised was, well, what about the example of a system that repeatedly measures values, and that the first time that you reach a threshold and you're over that value, then it takes action? [00:27:27] Speaker 02: Isn't that implicitly detecting a change? [00:27:30] Speaker 02: And my answer is twofold, no. [00:27:32] Speaker 02: First, because the claim specifically requires [00:27:35] Speaker 02: that you determine a detected change in the vehicle lateral acceleration. [00:27:41] Speaker 02: If you are using the example that you noted, then you are not detecting a change in lateral acceleration with the system, as my co-counsel from Ford noted. [00:27:50] Speaker 02: The second point I'd like to make is that in the prosecution history, in the Tsumi reference, [00:27:56] Speaker 02: There was a clear and specific example, exactly like what you just illustrated in your hypothetical, where you have repeated measurements of value. [00:28:04] Speaker 02: The first time you're over a value, then you take an action. [00:28:08] Speaker 02: And is that a change? [00:28:10] Speaker 02: And what did Karam say to the patent office? [00:28:13] Speaker 02: They specifically said that that is not a change, that exact example. [00:28:19] Speaker 02: And I can point you to the specification of the Tsutsumi reference. [00:28:23] Speaker 04: Can you give me the JA reference for the Tsutsumi discussion in the prosecution history? [00:28:28] Speaker 02: The exact reference is column seven of Tsutsumi. [00:28:31] Speaker 04: No, no, no. [00:28:32] Speaker 04: This is prosecution history. [00:28:34] Speaker 04: He said the prosecution history would be about Tsutsumi. [00:28:37] Speaker 02: Yes. [00:28:38] Speaker 02: In the prosecution history, the argument that was made, if you'll hand me the binder there on the top, [00:28:51] Speaker 02: The argument made in the prosecution history with respect to Tsutsumi. [00:29:04] Speaker 05: Is it JA4038? [00:29:08] Speaker 02: Is Appendix 4070, Your Honor? [00:29:12] Speaker 05: 4038? [00:29:12] Speaker 05: Is it 4038 that you refer? [00:29:14] Speaker 05: I think that's the right page that you're going to take us to. [00:29:17] Speaker 02: 4037. [00:29:26] Speaker 02: 4037, your honor. [00:29:28] Speaker 02: And in 4037, your honor, Judge Toronto and Judge Cunningham, it says, the abstract of Tsutsumi 799 states that a lateral acceleration imposed on a body vehicle is detected. [00:29:40] Speaker 02: A connection is made on the calculated value of the target vehicle or velocity according to a detected value of magnitude. [00:29:47] Speaker 02: And then on the next page, it says, applicant can find no suggestion whatsoever in Tsutsumi to utilize [00:29:56] Speaker 02: a detected change in a vehicle's lateral acceleration. [00:30:00] Speaker 02: In my mind, that resolves the issue in our favor. [00:30:03] Speaker 02: Because here you have a specific statement that what you have in Tsutsumi, which is a repeated check, and then taking an action on that repeated check, that is not a change. [00:30:15] Speaker 02: That is reaching a threshold value and taking an action on the threshold value. [00:30:19] Speaker 02: I think we win on that, Your Honor. [00:30:20] Speaker 02: And that's really all I have to say. [00:30:23] Speaker 03: All right. [00:30:23] Speaker 03: Thank you, Mr. Lavin. [00:30:27] Speaker 05: And I do want you to get back to this point of I see the detective change language in claim 10. [00:30:47] Speaker 00: Yes, Your Honor. [00:30:48] Speaker 05: Are people disagreeing? [00:30:50] Speaker 05: Is anybody else not seeing that language? [00:30:53] Speaker 00: So I think what you're referring to, Your Honor, is the second to last sort of main limitation that begins at least one lateral acceleration sensor, is that correct? [00:31:00] Speaker 00: Yes. [00:31:01] Speaker 00: So that limitation does recite that the lateral acceleration sensor is operative to detect a change, but the claim does not require that any particular action be taken in response to that detected change. [00:31:13] Speaker 00: And our understanding, and it appears defendants' understanding as well, is that the meaning of that phrase as used in this particular context is not at issue in this appeal. [00:31:23] Speaker 00: And certainly the district court did not purport to construe the meaning of that phrase in claim 10. [00:31:28] Speaker 05: So you're saying that we do need to decide both issues. [00:31:32] Speaker 05: in light of that? [00:31:33] Speaker 00: Certainly, yes, Your Honor. [00:31:35] Speaker 00: There are claims asserted against, as it seems we're all in agreement, the first issue pertains to both BMW and Ford. [00:31:42] Speaker 00: And there is a set of claims asserted against Ford that turns on the controller issue, no matter what the court decides on the change issue. [00:31:51] Speaker 00: I'll address the prosecution history briefly with respect to the change issue. [00:31:56] Speaker 00: So one of the keys here is that Ford and BMW actually can't agree about which piece of the prosecution history allegedly demonstrates that there has been a deviation in the meaning of what a change is. [00:32:08] Speaker 00: In the briefing, BMW was focused on the Cato 179 reference, and that's it. [00:32:15] Speaker 04: Today we've been focused on subsuming, so just focus on that. [00:32:18] Speaker 04: to talk about how they can't agree and how the district court didn't really rely on it we're looking at this right now [00:32:24] Speaker 00: Yes, Your Honor. [00:32:25] Speaker 00: And the discussion of Tsutsumi appears at appendix 4037 to 4038. [00:32:32] Speaker 00: And what Tsutsumi was doing, as we explain in more detail in our brief, was taking lateral acceleration as an input variable into calculating a target vehicle velocity. [00:32:45] Speaker 00: In other words, if my lateral acceleration is x at some moment in time, my target vehicle velocity should be y. [00:32:52] Speaker 00: And there were other inputs into that target vehicle velocity also. [00:32:57] Speaker 00: It was all a moving target. [00:32:59] Speaker 00: There was an ongoing calculation taking lateral acceleration, among other variables, as an input into a target vehicle velocity. [00:33:07] Speaker 00: There was no threshold. [00:33:09] Speaker 05: But why doesn't Appendix Page 4037 to 38 support the district court's claim construction here? [00:33:19] Speaker 00: You're on the appendix. [00:33:21] Speaker 00: I apologize. [00:33:21] Speaker 00: Let me make sure I have the correct page in front of me. [00:33:24] Speaker 05: And those are the pages you just cited to us and you were discussing just now. [00:33:27] Speaker 05: I'm talking about the same pages, but I don't see why that doesn't support the claim construction district court. [00:33:33] Speaker 00: Yes, Your Honor. [00:33:34] Speaker 00: So appendix 4037, what the applicant says is, a correction is made on the calculated value of the target vehicular velocity [00:33:42] Speaker 00: according to a detected value, magnitude of the lateral acceleration, lateral g. The use of the term magnitude there is just clarifying that the input that that algorithm is taking is the magnitude of a vector, acceleration being a vector, rather than the direction. [00:34:01] Speaker 00: In other words, the algorithm is agnostic to which way the vehicle is experiencing lateral acceleration, left versus right. [00:34:09] Speaker 00: It's taking the magnitude of lateral acceleration [00:34:12] Speaker 00: Because the safe speed for your vehicle doesn't depend on whether you're turning left or right. [00:34:17] Speaker 00: And it's taking that lateral acceleration, and then it discusses. [00:34:20] Speaker 00: So it goes on on appendix paragraph 403. [00:34:29] Speaker 00: page 4038 to say, applicant can find no suggestion whatsoever in Tsutsumi to utilize a detected change in the vehicle's lateral acceleration to determine when a vehicle is in a turn. [00:34:41] Speaker 00: It's not looking for any particular difference in lateral acceleration, any determination that lateral acceleration is different [00:34:48] Speaker 00: than it used to be. [00:34:50] Speaker 00: It's simply taking lateral acceleration as an input into an algorithm that is making an ongoing repeated calculation of what your target speed is. [00:35:01] Speaker 03: You've well exceeded your time, unless my colleagues have more questions. [00:35:07] Speaker 03: Thank you. [00:35:07] Speaker 03: The case is submitted. [00:35:09] Speaker 00: Thank you, Your Honor.