[00:00:00] Speaker 05:
The next case for argument is DSS, Inc.

[00:00:02] Speaker 05:
versus Nikia Corporation.

[00:00:06] Speaker 05:
Mr. Smith, when you're ready.

[00:00:10] Speaker 00:
Good morning.

[00:00:12] Speaker 00:
I'd like to reserve two minutes, please.

[00:00:13] Speaker 00:
Sure.

[00:00:15] Speaker 00:
May it please the court, my name is Matthew Smith, and I represent the appellant DSS, Incorporated.

[00:00:22] Speaker 00:
The crux of the district court's erroneous dismissal of the underlying case is based on its lack of understanding of the invention.

[00:00:31] Speaker 00:
admitted that it was unclear how the components can be sized to provide offsets between the mounting surface and the electrical contact.

[00:00:39] Speaker 00:
Yet it still decided it was not possible for anything to occupy the space between the electrical contacts and the mounting surface.

[00:00:46] Speaker 00:
These contradictory statements led the Court to hold that the claims of the O4 patent were both indefinite and lacked written description support.

[00:00:57] Speaker 01:
Council, how can there be an offset between the recessed portion of the contact and the mounting surface when the recessed portion of the contact is in the mounting surface?

[00:01:11] Speaker 00:
Our position is that these elements are not in totality required to be encompassed in total in these.

[00:01:21] Speaker 00:
So the portion of the mounting surface and a portion of the recess have an offset.

[00:01:28] Speaker 00:
It's not in the entirety of the mountain surface.

[00:01:32] Speaker 00:
It's only in a portion of the mountain surface.

[00:01:34] Speaker 00:
So the term in does not mean completely in.

[00:01:38] Speaker 00:
It means it's only a portion of the mountain surface that's in.

[00:01:45] Speaker 00:
As you can see from the figures that we – the mantras that we provided, the ends of the device have –

[00:01:57] Speaker 01:
do you want to give us a page?

[00:01:58] Speaker 01:
We could see from the figures.

[00:01:59] Speaker 00:
It might be helpful to look at the figure.

[00:02:04] Speaker 00:
The demonstrators are on page 33 of the opening page.

[00:02:15] Speaker 00:
So you could see from the demonstrators that we provide that the green

[00:02:22] Speaker 00:
Electrical contact zigzags up as the batten application.

[00:02:34] Speaker 00:
So as you can see the green portion zigzags up away from the bottom and that provides the recess as well as the offset between the mounting surface and the the electrical contacts on the left hand portion with the little red line and

[00:02:54] Speaker 00:
So the mounting surface is the bottom brown.

[00:02:57] Speaker 00:
And then the green portion is the electrical contacts that zigzag up.

[00:03:02] Speaker 00:
The zigzag is the terms used in the application.

[00:03:06] Speaker 00:
And they provide both an offset, the red line, and the recess, where the blue arrow points, the recess being something that's not in, something missing from the cave or a concave portion.

[00:03:25] Speaker 00:
So that allows there to be both – that allows the – sorry, the electrical contact to be between the mounting surface and the portion of the – that allows a recess to be between the mounting surface and the portion of the electrical contact that is above the mounting surface, the portion that zigzags up.

[00:03:50] Speaker 03:
So you want this remanded so the district court can fully construe the terms?

[00:03:55] Speaker 00:
Yes, I think that they did not properly construe the terms.

[00:03:58] Speaker 03:
You want in and between construed?

[00:04:01] Speaker 00:
As well as some of the other terms, I think that they missed them.

[00:04:04] Speaker 00:
They didn't construe the terms.

[00:04:08] Speaker 00:
Sorry.

[00:04:11] Speaker 00:
They didn't construe the offsets.

[00:04:14] Speaker 00:
They didn't construe conform.

[00:04:18] Speaker 00:
There are several terms that they used in their decision that they didn't construe during their alleged claim, well, alleged lack of claim construction.

[00:04:29] Speaker 03:
So how could you, some of the district court, I'm having trouble understanding the invention, but how could you construe in and between in a way that would make this not indefinite?

[00:04:40] Speaker 00:
The way that the district court construed it, in is entirely in, and between is entirely between.

[00:04:48] Speaker 00:
But that's not the language of the claims.

[00:04:50] Speaker 00:
In could be partially in, and between could be partially in.

[00:04:53] Speaker 00:
I mean, partially between.

[00:04:55] Speaker 00:
For example, the case that we cited talked about a garbage bag being partially in a garbage can, with the top of the bag extending out above it.

[00:05:05] Speaker 01:
Did you request these sorts of constructions prior to the decision on the motion?

[00:05:12] Speaker 00:
We did not.

[00:05:13] Speaker 00:
Those were not in contention at the time.

[00:05:15] Speaker 00:
The district court made these constructions to espante.

[00:05:20] Speaker 00:
So we did not know that they were in contention at the time that we filed our response.

[00:05:27] Speaker 01:
Are they per se constructions, or is it just applying the plain and ordinary meaning of the terms?

[00:05:33] Speaker 00:
I think that either way, they got it wrong.

[00:05:35] Speaker 00:
Plain and ordinary.

[00:05:36] Speaker 00:
I know you think they got it wrong.

[00:05:38] Speaker 01:
But I do want you to answer my question of whether or not it's really a construction or if it's really an application of the plain, ordinary meaning.

[00:05:43] Speaker 00:
Well, an application of plain, ordinary meaning is definitionally a construction.

[00:05:48] Speaker 00:
You're giving a, you're deciding how a claim is being interpreted.

[00:05:54] Speaker 01:
I guess what I'm wondering is, is this more of a factual dispute rather than a claim construction dispute?

[00:05:59] Speaker 00:
If it's a factual dispute, then it – That you're continuing.

[00:06:02] Speaker 01:
I'm not saying it is, but that you're continuing.

[00:06:05] Speaker 00:
Excuse me?

[00:06:06] Speaker 01:
I'm saying, are you continuing that there was a factual dispute rather than a claim construction dispute?

[00:06:12] Speaker 00:
I think that both are true.

[00:06:15] Speaker 00:
I think that there is a – we dispute the claim construction that was decided, and we also dispute the factual basis for the claim construction that was made.

[00:06:33] Speaker 00:
I could turn to the Sorry the Can you show me where this planar surface in your diagram is?

[00:06:53] Speaker 05:
This mounting surface in your diagram is not on one plane, but also the recesses.

[00:06:59] Speaker 05:
This is the problem, is you got over the prior art in the IPR by saying your mounting surface is not planar.

[00:07:11] Speaker 00:
Right.

[00:07:12] Speaker 05:
What you seem to be arguing today is that the recesses come up from the mounting surface, which then would suggest that your mounting surface is planar.

[00:07:22] Speaker 05:
Where is your mounting surface not planar?

[00:07:24] Speaker 00:
The portion of the mounting surface that the

[00:07:31] Speaker 05:
The... Let me back up.

[00:07:34] Speaker 05:
This technology is a little hard for me to follow.

[00:07:36] Speaker 05:
Is the mounting surface the, like, orange tan stuff?

[00:07:41] Speaker 00:
Yes.

[00:07:44] Speaker 00:
So the mounting surface is not only the orange tan stuff, but it's also the portion above the green portion, the electrical contact.

[00:07:53] Speaker 00:
Because how these are mounted... What do you mean above?

[00:07:56] Speaker 00:
Well, the electrical contact

[00:08:00] Speaker 00:
It's like a box.

[00:08:02] Speaker 05:
There are two mounting surfaces?

[00:08:04] Speaker 05:
I think we're way beyond what was argued in the prior case.

[00:08:09] Speaker 05:
So the mounting surface here is the orange.

[00:08:12] Speaker 05:
Where is that orange not planar?

[00:08:16] Speaker 00:
The portion that zigzags up because of the attachment point.

[00:08:20] Speaker 05:
When you talk about zigzag up, you mean underneath the green portion where it's recessed up?

[00:08:25] Speaker 00:
Correct.

[00:08:26] Speaker 05:
Because the recess is not in the... You're saying underneath the green thing is... The electrical contact.

[00:08:34] Speaker 05:
Well, that's not the mounting surface.

[00:08:36] Speaker 00:
The way that the...

[00:08:38] Speaker 00:
devices mounted to the board is that solder is placed inside the recess so the solder attaches to that whole area inside the recess so it's mounted to the board through that in that recess or recess area.

[00:08:54] Speaker 05:
There's no but then it's not mounted to a

[00:08:58] Speaker 05:
The mounting board at all.

[00:09:00] Speaker 05:
It's just solder.

[00:09:01] Speaker 00:
Well, it's placed on the mounting board.

[00:09:03] Speaker 00:
Mounting has multiple definitions.

[00:09:05] Speaker 05:
I mean, I think we told you last time around, if you won this construction at the IPR, these were going to be indefinite.

[00:09:11] Speaker 05:
And I think the district court did exactly what we expected it to do.

[00:09:15] Speaker 00:
I don't think that that's what was said last time around.

[00:09:18] Speaker 00:
They said it could be indefinite.

[00:09:20] Speaker 05:
You can argue with what Judge Moore said and what Judge Stoltz said, that they were pretty clear that you were going to have indefinite and S problems.

[00:09:27] Speaker 00:
They said it could be raised in the district court.

[00:09:31] Speaker 05:
They didn't say that just because they were letting one preserve their arguments.

[00:09:35] Speaker 05:
I can tell you that.

[00:09:37] Speaker 05:
Orange is a mounting surface.

[00:09:39] Speaker 05:
There's no orange under – there's a gap between the orange and the green, and that's the recess.

[00:09:45] Speaker 05:
The recess is not in the mounting surface.

[00:09:48] Speaker 05:
It's above the mounting surface.

[00:09:50] Speaker 00:
The recess is also a portion of it that is the square cut out off the mounting surface.

[00:09:56] Speaker 05:
Well, that doesn't help you, because the recess under your claims has to be in the mounting surface.

[00:10:02] Speaker 00:
Right.

[00:10:02] Speaker 00:
So in is the square portion.

[00:10:05] Speaker 00:
It extends into.

[00:10:06] Speaker 00:
It's a fallout.

[00:10:07] Speaker 00:
It's a fallout here.

[00:10:07] Speaker 00:
It also extends into.

[00:10:09] Speaker 00:
At the bottom level, it extends into along the edge where the cooler part is.

[00:10:15] Speaker 00:
So it's three-dimensional.

[00:10:17] Speaker 00:
So it extends up, and it also extends in.

[00:10:19] Speaker 05:
There's no orange underneath this recess at all.

[00:10:21] Speaker 00:
Right.

[00:10:21] Speaker 00:
So that's the portion that is in the mounting surface.

[00:10:24] Speaker 05:
OK.

[00:10:25] Speaker 05:
Good luck with that.

[00:10:27] Speaker 00:
OK.

[00:10:29] Speaker 05:
Anything else?

[00:10:30] Speaker 00:
That's it.

[00:10:31] Speaker 05:
Thank you.

[00:10:31] Speaker 05:
OK.

[00:10:32] Speaker 05:
We'll reserve the rest of your time for rebuttal.

[00:10:38] Speaker 05:
Mr. I'm going to botch your last name so you can just say it for me.

[00:10:42] Speaker 04:
It's OK.

[00:10:43] Speaker 04:
May it please the court, Thomas Macon of May & O'Sherman on behalf of the Nietzsche Appellees.

[00:10:50] Speaker 05:
Can you explain what he's trying to say today?

[00:10:53] Speaker 04:
Well, right.

[00:10:54] Speaker 04:
So one might remember, Judge Cunningham, I think you were there.

[00:10:59] Speaker 04:
In the appeal from the IPR, what DSS had argued to get around the prior art was that the mounting surface had to be a non-planar mounting surface.

[00:11:14] Speaker 04:
And we said, you know, that gets you around prior art, but that's going to put you in a host of trouble under 112 later.

[00:11:21] Speaker 04:
So we go back down, we move on a variety of motions to dismiss, including the fact that it's indefinite for impossibility, and since the figures apparently aren't covered, lack of written description, and they come back and they make two arguments in their brief, a lot of them here.

[00:11:38] Speaker 04:
One of which is, well, this court never said it couldn't be plainer, which is kind of astonishing.

[00:11:45] Speaker 04:
It's all over their reply brief here.

[00:11:47] Speaker 04:
And then they say, well, this H, which I think I called the brown H maybe in my briefs, but tan, orange, whatever, somehow isn't plainer.

[00:11:55] Speaker 04:
But it is, in fact, the only way they can draw this little red offset in the figure on page 33 on the brief.

[00:12:02] Speaker 04:
So I think they're wrong in the client construction.

[00:12:04] Speaker 04:
The court below had to do nothing but take the one from your honors.

[00:12:08] Speaker 04:
And then their only arguments are, you were wrong, which it can't be at this point, collateral and judicial estoppel for sure.

[00:12:15] Speaker 04:
And that if you look at that H line up, you'll see that it's not plainer.

[00:12:19] Speaker 04:
But of course it's plainer.

[00:12:22] Speaker 01:
And would you agree that if you were to affirm on the district court's determination on deafness, we wouldn't have to reach the written description issue?

[00:12:29] Speaker 01:
We could basically take you to order?

[00:12:30] Speaker 04:
That's correct.

[00:12:31] Speaker 04:
That's correct, Your Honor.

[00:12:36] Speaker 01:
And then I assume also it was clear they never asked if it was partially in or partially between.

[00:12:43] Speaker 01:
No, that's right.

[00:12:45] Speaker 04:
And if you look at their briefs here, I mean, my view of what their briefs here are is, well, there are a bunch of words that we didn't ask to have construed.

[00:12:53] Speaker 04:
But if we had asked to have them construed, then Your Honors would have seen that the mounting surface doesn't have to be non-planar, which is just highly circular.

[00:13:02] Speaker 04:
It comes back to the fact that they argued for a non-planar construction.

[00:13:05] Speaker 04:
They won.

[00:13:06] Speaker 04:
They beat us.

[00:13:07] Speaker 04:
But now they're stuck.

[00:13:08] Speaker 04:
And the claims just don't work.

[00:13:14] Speaker 02:
If the district court are construed in between as partially in and partially between, would that have made any difference?

[00:13:20] Speaker 04:
So two things.

[00:13:22] Speaker 04:
First of all, I don't think so.

[00:13:23] Speaker 04:
I can't imagine one.

[00:13:24] Speaker 04:
I'm thinking about impossibility.

[00:13:26] Speaker 04:
It's sort of on them to explain, which they didn't, how they would make it not impossible.

[00:13:31] Speaker 04:
On the written description question, of course, whatever fantastical thing you could imagine obviously isn't described in the specification.

[00:13:39] Speaker 04:
The other thing is that, you know, in doesn't show up in a meaningful place in the claims.

[00:13:43] Speaker 04:
It's from your honor's construction.

[00:13:46] Speaker 04:
Your Honor didn't say in.

[00:13:48] Speaker 04:
You said that it had to be in the mounting surface itself, which is not like whether there's a garbage bag and a can.

[00:13:55] Speaker 04:
I mean, it couldn't be more clear that it was coterminous with it.

[00:13:59] Speaker 04:
The recesses were in it.

[00:14:05] Speaker 04:
Do you have anything further?

[00:14:06] Speaker 04:
Not unless you want to hear anything more.

[00:14:10] Speaker 05:
We never complain when people give their time back.

[00:14:13] Speaker 05:
Thank you, Your Honor.

[00:14:21] Speaker 05:
about almost five minutes, or about all if you need it.

[00:14:23] Speaker 00:
The only point I'd like to make is that there are two definitions of planar.

[00:14:29] Speaker 00:
There is a planar surface that extends in all directions.

[00:14:34] Speaker 00:
That is a geometric anomaly, or I, phi, which is what they argued, which each argued at the board, was the planar surface.

[00:14:45] Speaker 00:
The surface that the board was mounted on, not the mounting surface of the board.

[00:14:51] Speaker 00:
Now they're arguing that the planar surface is the mounting surface of the board itself.

[00:14:59] Speaker 00:
And the planar surface of the mounting is – planar surface in that sense is just that there's a flat surface, not an extending and definite surface.

[00:15:08] Speaker 00:
So the flat surface could have flat portions, planar portions, and non-planar portions, portions that extend up.

[00:15:17] Speaker 00:
So I think that there's a difference between the two uses of planar surface in this.

[00:15:24] Speaker 05:
That's OK.

[00:15:25] Speaker 05:
She's not running your time, but I don't think you're going to go over.

[00:15:29] Speaker 00:
So if there's no further questions, thank you.

[00:15:32] Speaker 00:
Thanks.

[00:15:34] Speaker 05:
The case is submitted.