[00:00:00] Speaker 02:
Quantifacare vs. Canfield Scientific, 2023, 1917, 18, and 19.

[00:00:57] Speaker 02:
Mr. Giratana, we are ready when you are.

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

[00:01:02] Speaker 00:
May it please the Court, Mark Giratana of MacArthur in English, representing the Appellant Quantificare.

[00:01:07] Speaker 00:
I'm joined by my partner, Kevin Reiner, and by Dr. J.P.

[00:01:11] Speaker 00:
Zaltinich-Tirion, the inventor of the Patent Institute and the CEO of Quantificare.

[00:01:16] Speaker 00:
Your Honors, with respect to claim construction, we submit that the board improperly construed the claim limitation requiring the optics to be configured for an acquisition of two views according to two different angles.

[00:01:29] Speaker 00:
the board improperly read of a target subject into the claim and improperly read.

[00:01:36] Speaker 01:
I was a little confused by the briefing.

[00:01:38] Speaker 01:
So can I just see if I'm understanding what the dispute on claim instruction is here?

[00:01:42] Speaker 00:
Yes.

[00:01:43] Speaker 01:
You're saying the sub-objects, can I call them cameras?

[00:01:46] Speaker 01:
I don't know if they're different.

[00:01:47] Speaker 01:
Whatever.

[00:01:48] Speaker 01:
They have to be parallel.

[00:01:49] Speaker 01:
They cannot be parallel because that doesn't satisfy the limitation of different angles.

[00:01:55] Speaker 01:
And the board, let me finish and then you can tell me more.

[00:01:58] Speaker 01:
And then my understanding of the board in Canfield saying that different angles refers to the sub-optic's view of the subject.

[00:02:08] Speaker 01:
So that parallel is not excluded.

[00:02:11] Speaker 00:
That's correct, Your Honor.

[00:02:14] Speaker 00:
But if I can clarify slightly, our position is that the claim language requires the optics to be configured to acquire two views according to two different angles.

[00:02:24] Speaker 00:
So the configuration of the optics, the views must be configured to acquire, the optics must be configured to acquire their views according to two different angles.

[00:02:37] Speaker 00:
And these are figures two through five in the patent.

[00:02:39] Speaker 00:
We can see that the angles are these

[00:02:41] Speaker 01:
view of pyramid shapes, this is the... Yeah, but just to simplify it for me, because it's late in the day or late in the morning, the import of what you're... the differentiation, the dividing point between you and the board, which makes you lose and the other side win, is that you're saying that the angles can't be parallel.

[00:03:01] Speaker 01:
Is that?

[00:03:02] Speaker 00:
Of the views.

[00:03:03] Speaker 00:
The angles of the views can't be parallel.

[00:03:05] Speaker 00:
It's about the views that are required.

[00:03:09] Speaker 00:
And so what the board did, the way the board got to the error, is rather than construe the claim in accordance with the plain meanings of the words used, the board referred to a dictionary definition of the word view.

[00:03:24] Speaker 00:
And we submit, without applying basic rules of grammar,

[00:03:27] Speaker 01:
Well, it didn't end there, in fairness.

[00:03:30] Speaker 01:
It looked at the specification.

[00:03:32] Speaker 01:
It cited portions of the specification.

[00:03:34] Speaker 01:
It cited the prosecution history.

[00:03:35] Speaker 01:
It didn't say, here's the definition.

[00:03:37] Speaker 01:
Let's go home, right?

[00:03:39] Speaker 00:
It did not say, let's go home.

[00:03:41] Speaker 00:
And I agree, it did go through.

[00:03:42] Speaker 00:
But it did not give the language of the claim, and it did not give the specification the import that it should have.

[00:03:50] Speaker 00:
Instead, it relied on a dictionary definition, which quite frankly is directly contrary to the intrinsic record.

[00:03:57] Speaker 00:
And it's also contrary to the definitions that were cited by Quantificare.

[00:04:02] Speaker 00:
The dictionary definition relied upon by the board was cited by neither party.

[00:04:06] Speaker 00:
And so when we look, first of all, they construed the claim language, the disputed language, outside the contextual language of the claim.

[00:04:15] Speaker 00:
They simply said, they looked at the dictionary definition of view, and they said, oh, view means a target subject.

[00:04:21] Speaker 00:
And then they read the target subject into the claim.

[00:04:24] Speaker 00:
But the claim limitation doesn't say target subject.

[00:04:28] Speaker 00:
It appears nowhere in the limitation.

[00:04:30] Speaker 01:
Well, the spec says it explains the invention, blah, blah, blah, two simultaneous views with different angles of the subject.

[00:04:39] Speaker 01:
That's column four.

[00:04:40] Speaker 00:
Yeah, sure it does, Your Honor.

[00:04:41] Speaker 00:
First of all, that's not a definitional statement.

[00:04:43] Speaker 00:
That clearly does not change the claim limitation to mean two views.

[00:04:48] Speaker 00:
I mean, to mean views of the subject.

[00:04:52] Speaker 00:
But clearly, when you're looking at the picture,

[00:04:54] Speaker 00:
You can see here that it allows views of a subject.

[00:04:58] Speaker 00:
Of course, if the subject happens to be in the view.

[00:05:01] Speaker 00:
But what the claim requires is that the optics have to be configured to acquire two views without regard to whether there's a subject in front of the camera or not.

[00:05:11] Speaker 00:
When you build the camera, you configure the optics.

[00:05:14] Speaker 00:
And when you configure the optics, you configure them to acquire two views.

[00:05:18] Speaker 00:
There's no subject there.

[00:05:20] Speaker 00:
The subject in the claim, if we read the claim,

[00:05:24] Speaker 00:
And we look at the language of the claim.

[00:05:26] Speaker 00:
We don't get to a target subject until halfway down the claim in connection with a completely different limitation, which is the positioning system 34.

[00:05:36] Speaker 00:
It's a completely different limitation or element in the device.

[00:05:40] Speaker 00:
So Your Honor, we submit that when you look at the language of the claim, and by the way, the claim language calls for optics configured for an acquisition of two views according to two different angles.

[00:05:52] Speaker 00:
for an acquisition of two views is a prepositional phrase.

[00:05:57] Speaker 00:
It links the phrase acquisition of two views according to two different angles with its grammatical subject, which is the optics.

[00:06:05] Speaker 00:
So grammatically, the acquisition of two views according to two different angles explains what the optics are configured for.

[00:06:13] Speaker 00:
Nothing to do with a target subject.

[00:06:16] Speaker 00:
And then when we look at the spec, Your Honor,

[00:06:19] Speaker 01:
according to two different angles that's not angles of the subject?

[00:06:24] Speaker 00:
Absolutely not.

[00:06:26] Speaker 00:
It's acquiring the optics are configured to acquire two views.

[00:06:31] Speaker 01:
Two views of what?

[00:06:33] Speaker 01:
Of the subject?

[00:06:35] Speaker 00:
No.

[00:06:36] Speaker 00:
You don't need to have a subject in front of the camera to acquire the view.

[00:06:40] Speaker 00:
You don't need that.

[00:06:42] Speaker 00:
Any camera, I can point to space.

[00:06:45] Speaker 00:
It's still acquiring a view.

[00:06:46] Speaker 00:
A subject maybe happened to be in the view,

[00:06:50] Speaker 00:
And then, of course, you image the subject within the view.

[00:06:52] Speaker 00:
But the optics are configured to acquire these two angle views.

[00:06:57] Speaker 00:
That's a configuration of the optics, regardless of whether there's a person in front of it or not.

[00:07:04] Speaker 00:
And if you look at the dictionary definitions that we cited, Your Honor,

[00:07:14] Speaker 00:
The technical dictionary, which is at appendix 2934, it says that the view acquired by a camera of the nature here is a view frustum.

[00:07:25] Speaker 00:
It's a flat top pyramid that encompasses the volume of space recorded by the camera.

[00:07:31] Speaker 00:
And so a view frustum, a view is a volume of space that's recorded by the camera.

[00:07:38] Speaker 00:
You could have a target in that space or not.

[00:07:41] Speaker 02:
That sounds like sophistry.

[00:07:43] Speaker 02:
A camera takes a picture of objects, and so if a camera has a view, it has a view of a subject or an object.

[00:07:52] Speaker 00:
Of course it does, Your Honor, if a subject is in front of the view, but that is not what the claim says.

[00:07:57] Speaker 00:
The claim says that the optics are configured to acquire two views and to acquire them according to two different angles.

[00:08:05] Speaker 00:
It does not require a subject to be in front of the optics.

[00:08:10] Speaker 00:
to define their configuration.

[00:08:13] Speaker 00:
So I agree that when you put something in front of the camera, of course there's a person within the view.

[00:08:19] Speaker 00:
But that doesn't define the angle of the view.

[00:08:21] Speaker 00:
The angle of the view is set by the optics.

[00:08:24] Speaker 02:
Are you going to talk about the references or about alleged secondary considerations?

[00:08:28] Speaker 00:
Yeah, we'll talk about the

[00:08:39] Speaker 00:
And so when it comes to whether or not the Plasmin, which is the primary reference, whether or not it acquires two views?

[00:08:48] Speaker 02:
And you should stay in front of the microphone.

[00:08:51] Speaker 00:
Oh, I apologize, Your Honor.

[00:08:52] Speaker 00:
Yeah, so if we look at this is an image of Plasmin's Figure 1B.

[00:08:56] Speaker 00:
Plasmin is the primary reference that's asserted by the petitioner.

[00:08:59] Speaker 02:
These are in our briefs, of course.

[00:09:01] Speaker 00:
It is, of course, yeah.

[00:09:02] Speaker 00:
And this, in fact, is in the petition, this image.

[00:09:05] Speaker 00:
OK, and what can feel the petitioner did

[00:09:07] Speaker 00:
was they applied a ray tracing to Fig 1B of Plasma.

[00:09:12] Speaker 00:
A ray tracing is testified by our expert... Can you start, can you back up a little?

[00:09:16] Speaker 00:
Yes.

[00:09:16] Speaker 01:
Tell us what the issue here is, is whether or not there's a motivation to combine these two references.

[00:09:21] Speaker 00:
The issue here is that Plasma does not acquire two views according to two different angles.

[00:09:28] Speaker 00:
Plasma acquires two views according to the same angle.

[00:09:31] Speaker 00:
And therefore, we don't need to get to motivation to combine because the prior art doesn't meet the terms of the claimed invention.

[00:09:39] Speaker 00:
We disagree that it would be obvious to combine, but we submit you do not need to go there because the reference is, even if you combine them, do not have optics configured to acquire two views according to two different angles.

[00:09:55] Speaker 00:
Plasmin, which is the primary reference, acquires two views according to the same angle.

[00:10:01] Speaker 00:
And this is uncontroverted testimony.

[00:10:03] Speaker 00:
They put in their petition this ray tracing.

[00:10:07] Speaker 00:
Our expert explained that a ray tracing, which are the red and the blue lines, our expert testified that a ray tracing is a powerful tool for explaining how optics work.

[00:10:19] Speaker 00:
And he went through in detail to explain how this ray tracing shows that this acquires parallel views, not views at two different angles.

[00:10:30] Speaker 00:
He says each light beam is depicted as traveling through the lenses.

[00:10:34] Speaker 00:
The lenses are there at the bottom, where you see the two straight lines that are going up and down.

[00:10:39] Speaker 00:
He says, the light passes through such lens in a straight line only when it travels along the optical axis.

[00:10:45] Speaker 01:
I'm just getting a little confused.

[00:10:48] Speaker 01:
Your argument with respect to Plassman is based on our rejection of the board's claim construction.

[00:10:55] Speaker 01:
If we adopt the board's claim construction, then this argument is moot, right?

[00:11:00] Speaker 01:
Or it goes away.

[00:11:01] Speaker 01:
OK, that's what I didn't understand.

[00:11:05] Speaker 01:
So you're starting with your claim construction being the correct claim construction, and your arguments are therefore based on that.

[00:11:11] Speaker 00:
So we submit that there's really no dispute.

[00:11:16] Speaker 00:
provided you properly construed the claim, which again, requires that the optics be configured to acquire two views according to two different angles.

[00:11:25] Speaker 00:
It has nothing to do with whether or not there's a target subject there.

[00:11:29] Speaker 00:
And the net effect of putting the target subject there, first of all, it's improper to read that into the claim.

[00:11:34] Speaker 01:
OK, so we're back to the claim concern.

[00:11:36] Speaker 00:
Yeah, we're back to that.

[00:11:37] Speaker 01:
I just want to understand the context of this.

[00:11:38] Speaker 00:
I apologize, Your Honor.

[00:11:40] Speaker 00:
And so provided

[00:11:44] Speaker 00:
You properly construed the claim to say the optics must be configured to acquire two views.

[00:11:50] Speaker 00:
Plasmin acquires two views at the same angle, not two different angles.

[00:11:55] Speaker 00:
And therefore, it doesn't matter what you combine with Plasmin.

[00:11:58] Speaker 00:
The resulting combination does not meet the terms of the claimed invention.

[00:12:02] Speaker 00:
I notice my yellow light is on.

[00:12:03] Speaker 00:
So unless there's any further questions, I'll keep the remainder of my time for rebuttal.

[00:12:09] Speaker 02:
We will save it for you.

[00:12:10] Speaker 00:
Thank you, Your Honors.

[00:12:11] Speaker 02:
Mr. Dustin.

[00:12:23] Speaker 03:
Good morning, Your Honor.

[00:12:24] Speaker 03:
It's Thomas Dusted on behalf of the L.B.

[00:12:26] Speaker 03:
Canfield Scientific.

[00:12:30] Speaker 03:
The board, in this case, carefully considered all of the issues that were raised by Quantificare, went through a methodical claim construction analysis based upon the proper standard under Phillips, looked at the intrinsic record, both the claim language, the written description, and the file history, and confirmed this interpretation that was derived from these intrinsic sources against any intrinsic evidence that was of record in the proceedings.

[00:13:01] Speaker 03:
Council suggests that the board ignored context when deciding what the phrase according to two different angles meant.

[00:13:12] Speaker 03:
What the board did in this instance was to observe that according to two different angles,

[00:13:19] Speaker 03:
modifies the two views, not the configuration of the optics.

[00:13:25] Speaker 03:
The words that the claim has are separated by a considerable number of limitations between the optics, suboptics, and

[00:13:38] Speaker 03:
the phrase according to two different angles.

[00:13:39] Speaker 03:
What Quantificare wishes to do is to read out that intermediate phrase between those two and then leapfrog and combine the according to two angles with the suboptics.

[00:13:50] Speaker 03:
I think, Your Honor, that what the board said was that the views are not necessarily specifically of any particular subject, but they are acquired.

[00:14:01] Speaker 03:
They are the image that is acquired.

[00:14:04] Speaker 03:
simultaneously acquired at the same time.

[00:14:07] Speaker 03:
It is what is being acquired is the view.

[00:14:10] Speaker 03:
Even the technical dictionary that Council just referred to, where he relies upon this definition of view frustum, which is nowhere found in the claims or in the specification, this technical dictionary has a definition of view.

[00:14:25] Speaker 03:
And view is defined as the image that is acquired, not the orientation of the optics.

[00:14:33] Speaker 03:
I'll put another point to it, Your Honor.

[00:14:35] Speaker 01:
Well, he said that you don't have to consider what the subject is.

[00:14:38] Speaker 01:
You're just considering the angles without the subject at the end.

[00:14:41] Speaker 01:
What the board said was... I'm talking about what he said.

[00:14:44] Speaker 03:
Yeah.

[00:14:44] Speaker 01:
What the board said is the view is the scene, whatever is seen by the... And all the figures in the... There are a bunch of figures in this patent, and all of them have a subject there.

[00:14:55] Speaker 01:
They show the angles, and then they show something at the end.

[00:14:58] Speaker 03:
Absolutely, Your Honor.

[00:14:59] Speaker 03:
And the specification speaks of views of the subject and views of the subject from different angles.

[00:15:05] Speaker 03:
And in fact, claim one of the 334 patent, Your Honor, which appears at... Let me give you the precise appendix reference.

[00:15:17] Speaker 03:
Claim one of the 334 patent, which appears at appendix 8940.

[00:15:24] Speaker 03:
That claim has no mention of double optics, has no mention of suboptics.

[00:15:30] Speaker 03:
It has the phrase two views according to two different angles.

[00:15:34] Speaker 03:
But it makes no mention of this context that Council for Quantificator says is so important.

[00:15:41] Speaker 03:
If this phrase can appear in a claim without any mention of double optics, without any mention of suboptics, how can this phrase be seen as possibly describing the configuration or the orientation

[00:15:53] Speaker 03:
of the optical axes of those optical elements.

[00:15:57] Speaker 03:
Optical axes is nowhere in the claim.

[00:16:00] Speaker 03:
It's nowhere in the specification.

[00:16:02] Speaker 03:
View frustum is nowhere in the claim.

[00:16:03] Speaker 03:
View frustum is nowhere in the specification.

[00:16:06] Speaker 03:
The board looked at the claim and said, what a view is, is the thing that is acquired simultaneously.

[00:16:15] Speaker 03:
It is the scene that the camera

[00:16:18] Speaker 03:
images and if that image by one of the optics and an image by the other optics are at different angles then that is all that's required and that can be done by both parallel front-facing optical elements as well as inwardly angled optical elements.

[00:16:38] Speaker 03:
Now the figures that are emphasized by quantific here

[00:16:45] Speaker 03:
as all showing inwardly angled optics are repeatedly described as exemplary only.

[00:16:53] Speaker 03:
The specification, in fact, at appendix 1026, column 4, lines 43 through 45, lines 25 through 28, continuously and repeatedly emphasize that

[00:17:11] Speaker 03:
this system can be confined or constructed in a variety of ways, and that the applicant in no way seeks to limit the type of stereophotographic devices that they're claiming.

[00:17:23] Speaker 01:
Can I ask you, can you turn to, this is 119, the patent.

[00:17:27] Speaker 01:
Figure 1, are those, I can't tell whether you would consider those parallel or not.

[00:17:36] Speaker 03:
Figure 1 is the side view, I believe, Your Honor?

[00:17:38] Speaker 03:
Yeah.

[00:17:41] Speaker 01:
I mean, I take your point that it doesn't have to be.

[00:17:44] Speaker 01:
If it's not parallel, the others can just be exemplary and not necessarily be parallel.

[00:17:52] Speaker 01:
Is that parallel or not?

[00:17:53] Speaker 03:
I think from the side, Your Honor, it's difficult to tell what they're emphasizing is the top-down view of the optics in these figures.

[00:18:02] Speaker 03:
But my point is, Your Honor, is the argument being made by Quantificare is that a person of skill in the art reading this claim, reading the specification, reading the file history, would come away from that reading with the clear understanding that Quantificare was not claiming stereophotographic devices

[00:18:22] Speaker 03:
per se, they were claiming a specific species of stereophotogramic device, and that they were seeking to exclude, clearly exclude from their claim, any stereophotogramic device that had parallel optics.

[00:18:36] Speaker 03:
And that's simply not consistent with any of the intrinsic record.

[00:18:40] Speaker 03:
As I said, patent 334, claim one, speaks of this limitation without regard to optics at all.

[00:18:49] Speaker 03:
The specification makes clear that the stereophotographic device can be constructed in a variety of ways and that the figures are only exemplary.

[00:18:59] Speaker 03:
And actually, it also emphasizes that the angles that we are talking about here are angles of the subject.

[00:19:06] Speaker 03:
And then we get to the prosecution history, prosecution history which cited Hoffmeier and rejected the claims on the basis of Hoffmeier.

[00:19:15] Speaker 03:
And there's no clearer indication that the applicant did not

[00:19:19] Speaker 03:
specifically seek to exclude parallel optics, where the applicant responded to the rejection of Hofmeier, a rejection that, or a reference that the board, or that the examiner concluded had the two sub-optics in it, which the board said Hofmeier taught parallel sub-optics, again at

[00:19:49] Speaker 03:
Excuse me, Your Honor.

[00:19:51] Speaker 03:
At Appendix 53 is the portion of the final written decision discussed at Hofmeyer.

[00:20:00] Speaker 03:
Board found that the evidence supports that Hofmeyer's lenses faced forward rather than at an angle.

[00:20:07] Speaker 03:
And the applicant responded to Hofmeyer and said, that's our invention.

[00:20:12] Speaker 03:
Essentially said, these optics are the optics that are in our plane.

[00:20:17] Speaker 03:
Now, Quantificare argues that.

[00:20:19] Speaker 03:
Hoffmeyer can be interpreted in a number of ways.

[00:20:21] Speaker 03:
But they don't indicate that Hoffmeyer isn't consistent with optics that are in parallel.

[00:20:27] Speaker 03:
So the point about the prosecution history is not a disavowal or disclaimer, as the patent owner suggests.

[00:20:35] Speaker 03:
But when faced with a reference, which clearly can be interpreted as having parallel optics, in the face of that reference, the applicant did not say that

[00:20:46] Speaker 03:
Optical system is not our invention because the optics are in parallel instead Quantifica said that is our invention that corresponds directly to the optics that are claimed in claim one of the path Now your honor there was some talk about the classmen I just want to briefly talk about the figure that's behind me on the easel and

[00:21:15] Speaker 03:
Just as you pointed out, if the claim construction that the board rendered here, which was to not incorporate the various limitations that are not present in the claims that Quantificor seeks to have incorporated into these claims, if that construction is accepted, we don't have to get to what Plasmon discloses or not discloses.

[00:21:40] Speaker 03:
Whether it discloses parallel or angled optics will be irrelevant.

[00:21:44] Speaker 03:
If, however, your honors decide that the claim construction was in error and that these additional limitations such as view frustum and non-parallel optical axes have to be read into the claim, then I think we have to remand this matter to the board because the board made no findings as to exactly what

[00:22:04] Speaker 03:
Plasmin disclosed by way of whether the optics in Plasmin were parallel or angled.

[00:22:10] Speaker 03:
I think the board would have to address that in the first instance because there was conflicting evidence on that point as to whether or not Plasmin's optics are actually angled or whether they're in parallel.

[00:22:25] Speaker 03:
It's irrelevant if the construction covers both.

[00:22:28] Speaker 03:
If it doesn't,

[00:22:29] Speaker 03:
then the board would have to make an assessment of what Plassman discloses.

[00:22:34] Speaker 03:
And the board has noted that the Plassman diagram is essentially identical to the diagram in the challenge patents.

[00:22:44] Speaker 03:
And so to suggest that this diagram shows parallel optics when an almost identical diagram in the patent excludes parallel optics,

[00:22:58] Speaker 03:
That makes no sense.

[00:22:59] Speaker 03:
That would have to be addressed by the board, your honor.

[00:23:06] Speaker 03:
Let me jump to secondary considerations, which was a question your honor raised.

[00:23:15] Speaker 01:
Which your friend didn't address.

[00:23:17] Speaker 03:
Correct, your honor.

[00:23:18] Speaker 03:
But I just want to make sure that our position on this is clear.

[00:23:21] Speaker 03:
The board found an absence of evidence of nexus.

[00:23:28] Speaker 03:
for the commercial success evidence and the other evidence that was presented.

[00:23:32] Speaker 03:
Quantificare challenges that determination.

[00:23:37] Speaker 03:
But I think that it's fairly clear that there was substantial evidence for the board's determination that there was no nexus.

[00:23:47] Speaker 03:
Most of that evidence is, in fact, not discussed by Quantificare in its briefing.

[00:23:52] Speaker 03:
It's not even made a part of the joint appendix for this court

[00:23:55] Speaker 03:
evaluate what the evidence cited by the board was for its conclusion that there were no nexus.

[00:24:01] Speaker 03:
But even putting that aside, the board then went on to address the evidence as if it had nexus and looked at that evidence and concluded that it was inadequate.

[00:24:13] Speaker 03:
The board said that the commercial success evidence in terms of sales of the patent owner's products wasn't sufficient because it didn't indicate

[00:24:21] Speaker 03:
what the market share was, it didn't indicate what the growth of those sales was, it didn't indicate why those sales were made.

[00:24:28] Speaker 03:
In looking at the sales of the accused products, the board went on to point out that this evidence simply that there was a difference between the production numbers of the accused product and other

[00:24:42] Speaker 03:
photographic devices that arguably don't incorporate the invention?

[00:24:46] Speaker 01:
I mean, maybe that was part of it.

[00:24:48] Speaker 01:
I understood the board to say that they're not going to look at the accused products because no determination has been made as to whether or not those are infringing products or not.

[00:24:59] Speaker 01:
That is one of their determinations, Your Honor.

[00:25:01] Speaker 01:
Is that correct as a matter of law?

[00:25:03] Speaker 01:
Can they exclude looking at the accused devices because there's been no determination of infringement?

[00:25:11] Speaker 03:
What the board found was that there was insufficient evidence to show that the accused devices practiced the patented invention and that their success, whatever it may be, was due to the patented invention.

[00:25:27] Speaker 03:
But even beyond that, Your Honor, what was put into evidence was not the sales of the accused invention.

[00:25:35] Speaker 03:
I'm sorry.

[00:25:35] Speaker 03:
Let me start again.

[00:25:37] Speaker 03:
What was put in evidence before the board was not the sales of the accused products.

[00:25:42] Speaker 03:
It was merely a very brief presentation of numbers showing that the accused products were manufactured in this amount, and non-accused products were manufactured in this amount.

[00:26:00] Speaker 03:
And based purely on speculation, which the board pointed out was just pure speculation,

[00:26:06] Speaker 03:
The suggestion made by Quantificator was the differences in the numbers of units manufactured was an indication that the patent and invention enjoyed substantial commercial success.

[00:26:20] Speaker 03:
And what the board said is that's pure speculation.

[00:26:23] Speaker 03:
There's no evidence here why one product was produced at a greater volume than another product.

[00:26:30] Speaker 03:
Maybe product was discontinued, maybe the product was

[00:26:33] Speaker 03:
maybe there were other advantages to the product.

[00:26:36] Speaker 03:
In fact, the board pointed out that there were any number of different additional features of the accused product that were not encompassed by the claim and could have accounted for whatever production differences might have existed.

[00:26:53] Speaker 03:
Your honor, I see I only have about 30 seconds, and I want to make sure if there are any further questions on the briefing that your honors have with respect to this, that I answer that.

[00:27:02] Speaker 02:
Apparently not.

[00:27:04] Speaker 03:
Thank you, your honor.

[00:27:05] Speaker 02:
Thank you, counsel.

[00:27:07] Speaker 02:
Mr. Giratana has some rebuttal time.

[00:27:09] Speaker 00:
Thank you, your honor.

[00:27:21] Speaker 00:
Your Honors, we submit that if you're going to read of a target subject into the claim limitation, you must find a clear definitional statement or disclaimer of subject matter to do that.

[00:27:35] Speaker 00:
Because the of a target subject simply does not appear in the claim limitation.

[00:27:40] Speaker 00:
And there is no such definitional statement.

[00:27:43] Speaker 00:
There is no disclaimer of such subject matter.

[00:27:46] Speaker 00:
I encourage you to read the claim literally in accordance with the rules of grammar.

[00:27:52] Speaker 00:
It simply requires that the optics or the stereophotogrammetry device in the 3-3-4 patent must be configured to acquire two views according to two different angles.

[00:28:04] Speaker 00:
And the phrase two views according to two different angles modifies, by basic rules of grammar, the optics.

[00:28:13] Speaker 00:
And the sentence says, the optists are configured to acquire their views according to two different angles.

[00:28:19] Speaker 00:
There is absolutely no mention of a target subject there.

[00:28:24] Speaker 00:
And if you read a target subject into there, we submit that would be legal error, because there is absolutely no clear definitional statement or disclaimer of subject matter that would allow that.

[00:28:35] Speaker 00:
And the only way the board got to that conclusion was to improperly rely on a dictionary definition to say that views means viewing the subject.

[00:28:47] Speaker 00:
OK, and read the words of the subject into the claim limitation.

[00:28:51] Speaker 00:
And we submit that was legal error, because that's contradicted by the spec in the prosecution history.

[00:28:57] Speaker 00:
I acknowledge that the drawings in the patent show people, show faith in a torso within the views.

[00:29:09] Speaker 00:
Well, of course they're going to have to do that, because when you use the camera, you've got to put somebody there.

[00:29:14] Speaker 00:
But before you put somebody in front of the camera, you have to configure the optics.

[00:29:19] Speaker 00:
That's done at the manufacturing phase.

[00:29:21] Speaker 00:
And you must configure the optics to acquire those two pyramid-shaped views at an angle, not parallel.

[00:29:29] Speaker 00:
And that's what the claim requires, Your Honors.

[00:29:31] Speaker 00:
And we ask that you find that way.

[00:29:34] Speaker 00:
Now, with respect to Hofmeier in the prosecution history,

[00:29:43] Speaker 00:
the board found that Hofmeier was ambiguous as to whether it disclosed angled views or as to whether Hofmeier disclosed angled views or, forgive me, angled views or parallel views.

[00:30:04] Speaker 00:
And you can see a Hofmeier has figure four here.

[00:30:11] Speaker 00:
which is what the board was looking at, which was the subject of the prosecution history.

[00:30:15] Speaker 00:
Hoffmeyer shows straight lines.

[00:30:17] Speaker 00:
It shows angled lines.

[00:30:20] Speaker 00:
Canfield says that this shows acquiring parallel views along these lines.

[00:30:26] Speaker 00:
During prosecution, Quantificare thought that this showed

[00:30:30] Speaker 00:
angled optics, angled lines.

[00:30:32] Speaker 00:
The point is, Hofmeyer doesn't say what these lines are.

[00:30:36] Speaker 00:
It doesn't say what its optical axes are.

[00:30:38] Speaker 00:
It doesn't say how its views are required.

[00:30:40] Speaker 00:
And the board explicitly found that it's ambiguous in that regard.

[00:30:45] Speaker 00:
So a statement about what an ambiguous reference shows can't be a clear definitional statement one way or another.

[00:30:52] Speaker 00:
And so we submit that you must go back to the claim language as written and read that consistent with what's in the specification.

[00:31:08] Speaker 00:
With respect to one more thing, council argued that with respect to clean construction, council argued that two views

[00:31:24] Speaker 00:
He argued that two different angles follows two views.

[00:31:31] Speaker 00:
But that's not the correct grammatical construction.

[00:31:34] Speaker 00:
The prepositional phrase is for a simultaneous acquisition of two views according to two different angles.

[00:31:41] Speaker 00:
And that phrase refers back to the optics to explain that the optics are configured to simultaneously acquire those two views according to two different angles.

[00:31:50] Speaker 02:
Thank you, counsel.

[00:31:51] Speaker 02:
The optics here show that your red line is on.

[00:31:54] Speaker 02:
And so we thank both parties.

[00:31:57] Speaker 02:
The case is submitted.

[00:31:59] Speaker 00:
Thank you, your honor.