[00:00:00] Speaker 04:
The next case for argument is 24-2224, manufacturing resources international versus suppliers.

[00:00:12] Speaker 04:
Mr. Reed, whenever you're ready.

[00:00:15] Speaker 02:
May it please the court.

[00:00:16] Speaker 02:
Good morning, Your Honors.

[00:00:17] Speaker 02:
David Reed for MRI.

[00:00:19] Speaker 02:
The term heat exchanger does not include convective cooling by blowing air over fins.

[00:00:26] Speaker 02:
Phillips tells us that the words of a patent claim have the meaning and scope with which they're used in the claims, the specification, and the prosecution history.

[00:00:36] Speaker 02:
Here in the context of these claims and this specification and this prosecution history, the heat exchanger is the device with enclosed flow paths such as channels or tubes for passing open and closed loop air through the device.

[00:00:53] Speaker 02:
How do we know this?

[00:00:54] Speaker 01:
I want some clarification on your proposed construction.

[00:00:58] Speaker 01:
You say on the one hand a heat exchanger does not include ribs and then on the other hand you say a heat exchanger is tubes and channels.

[00:01:11] Speaker 01:
or channels and it might not make a big difference ultimately to the outcome but which is your claim construction?

[00:01:18] Speaker 01:
Are you seeking a negative limitation or are you saying that its channels includes tubes and channels?

[00:01:26] Speaker 02:
Your Honor, the affirmative construction that we've sought is that it be an enclosed device with enclosed flow paths for the open and closed loop flow paths to pass through the heat exchanger.

[00:01:40] Speaker 02:
And we've consistently argued throughout below that that does not include

[00:01:45] Speaker 01:
I would just say you should have a claim construction and the question whether that includes fins is a question of fact.

[00:01:54] Speaker 01:
I'm not saying it does include fins, but it's kind of weird to have someone get up, stand up and give two constructions.

[00:02:00] Speaker 01:
So I just want to make sure I knew which one it was.

[00:02:02] Speaker 01:
Thank you.

[00:02:03] Speaker 02:
Whether or not it includes fins is a question of the scope of the claim terms.

[00:02:08] Speaker 02:
So we have

[00:02:09] Speaker 02:
We've consistently argued that as a question of law, this subject of de novo review, and not ultimately a question of fact.

[00:02:17] Speaker 03:
I think maybe this is a version of the same question.

[00:02:22] Speaker 03:
Imagine a system with open and closed tubes coming into the heat exchanger.

[00:02:33] Speaker 03:
coming out of the heat exchanger, but no fins in the heat exchanger.

[00:02:38] Speaker 03:
Or there could be fins in the heat exchanger.

[00:02:41] Speaker 03:
Imagine the one where there are fins.

[00:02:43] Speaker 03:
How does your claim construction deal with the example where there are tubes, input and output, but also fins?

[00:02:54] Speaker 02:
Your Honor, we've never argued that the interior structure of the heat exchanger excludes

[00:03:02] Speaker 02:
any particular structure.

[00:03:04] Speaker 02:
There are many types of configurations you may have in the interior of the heat exchanger to separate the two flow paths that pass through.

[00:03:12] Speaker 03:
So with another way of identifying the relationship between your input tube, output tube idea and the fins idea is that you're saying fins alone cannot be enough.

[00:03:29] Speaker 03:
That is correct.

[00:03:32] Speaker 04:
And what is the basis of that?

[00:03:36] Speaker 02:
So it's the claims and the specification and the interplay.

[00:03:41] Speaker 02:
So if we look first at the claims, the claims don't just recite the two words heat exchanger.

[00:03:47] Speaker 02:
In claim one of the 740 patent, they recite a common heat exchanger that is located in the pathway of both the open and closed loop.

[00:03:58] Speaker 02:
And it further recites fans to force air through, quote, through the common heat exchanger.

[00:04:05] Speaker 02:
And then in claim six of the 142 patent is another example.

[00:04:11] Speaker 02:
The claim recites that the heat exchanger forms part of the pathways for the open and closed loop.

[00:04:18] Speaker 02:
And so that provides context.

[00:04:21] Speaker 02:
We're not saying that's dispositive, but it provides context for how the heat exchanger is described in the specification.

[00:04:29] Speaker 01:
Can I ask you just a little bit of clarification?

[00:04:31] Speaker 01:
Are you saying that because the open loop or the closed loop should be enclosed, that that gives the impression that the heat exchanger is also enclosed, as in having a channel or something like that?

[00:04:47] Speaker 02:
So because you have flow paths that pass through the heat exchanger, we read that in the context of these claims and the specification and the prosecution history as requiring enclosed flow paths that pass through.

[00:05:03] Speaker 01:
Where is the word enclosed in the claim?

[00:05:06] Speaker 02:
The claim does not use the word enclosed, Your Honor, but the claim does recite that the heat exchanger forms part of the flow path.

[00:05:14] Speaker 01:
of the open-and-closed loop and that the open-and-closed loop paths are enclosed?

[00:05:25] Speaker 02:
So the board made a finding that in the specification, the only disclosure of heat exchanger, that the specification only discloses heat exchangers with enclosed channels or tubes.

[00:05:38] Speaker 02:
That's at page 32 of the appendix.

[00:05:43] Speaker 04:
The only thing you cite the claim language, I assume, what in the spec are you relying on for your account of what a heat exchanger is?

[00:05:55] Speaker 02:
So Your Honor, the specification is the single best guide for the meaning of a claim term.

[00:05:59] Speaker 02:
And here in the background of the patent, the background describes what it calls systems of the past.

[00:06:07] Speaker 02:
And it states that in those conventional systems, as prior art systems, heated air is moved into convectively thermal communication with fins.

[00:06:18] Speaker 02:
The very next sentence of the background goes on to say that new display applications require even greater cooling capabilities.

[00:06:27] Speaker 02:
So in other words, those conventional systems that blow air into convectively thermal communication with fins was insufficient.

[00:06:36] Speaker 02:
and we need more cooling for new applications, outdoor applications.

[00:06:41] Speaker 02:
And the specification then goes on to describe the heat exchanger as the improvement over those conventional systems.

[00:06:51] Speaker 02:
So a person of ordinary skill in the art wouldn't understand the heat exchanger that's being described as the invention to encompass the fins which were

[00:07:00] Speaker 02:
what it was improving over.

[00:07:01] Speaker 01:
There's no doubt that your specification contemplates and certainly suggests that you want to have these enclosed tubes or channels.

[00:07:12] Speaker 01:
There's no doubt about it.

[00:07:14] Speaker 01:
Let me tell you about one of the sentences that concerns me is you say, however, many types of heat exchangers are known and can be used with any of the embodiments herein.

[00:07:24] Speaker 01:
And that kind of broad language

[00:07:27] Speaker 01:
broadens out what you're talking about.

[00:07:29] Speaker 01:
In addition, there is a embodiment.

[00:07:32] Speaker 01:
I think it's a last embodiment disclosed would be the figure four embodiment.

[00:07:36] Speaker 01:
talks about using ribs, albeit in a different context, but it does.

[00:07:41] Speaker 01:
So those two things together, along with language that says things like may be an enclosed to or channel, make me wonder whether your proposed construction, even in light of the specification, is one that was really intended at the time of writing the specification.

[00:08:01] Speaker 02:
So just to unpack that, first I would say the board found that every embodiment of the specification is a heat exchanger that has enclosed channels or tubes.

[00:08:13] Speaker 02:
So that was a finding of the board.

[00:08:14] Speaker 02:
Nowhere does the patent describe any structure that lacks an enclosed flow path as a heat exchanger.

[00:08:23] Speaker 02:
And as I described before, we have this statement in the background describing the systems of the past

[00:08:30] Speaker 02:
using fins and goes on to describe the heat exchangers and improvement over that.

[00:08:37] Speaker 02:
So under Philips, we look for what the inventors intended and actually intended to envelop with the claim.

[00:08:46] Speaker 02:
And in other words, we look for what the claims most naturally cover.

[00:08:50] Speaker 02:
And here in that context, we have

[00:08:55] Speaker 02:
We recognize that there are conventional systems with fins in the background, and then we describe the heat exchangers and improvement over that, exclusively showing that repeated... Before I... In your embodiment, in your discussion of the preferred embodiment, I think the board cited this.

[00:09:15] Speaker 04:
at column 4, 18 through 23, you say, however, many types of heat exchangers are known and can be used with any of the embodiments herein.

[00:09:25] Speaker 04:
And I think Judge Stoll cited this.

[00:09:27] Speaker 04:
The heat exchanger may be a cross flow, parallel flow, or counter flow heat exchanger, but as the board called out, may doesn't mean must.

[00:09:37] Speaker 04:
So the board, wasn't the board correct to kind of cite this provision in the spec as broadening out?

[00:09:46] Speaker 04:
the definition of heat exchangers?

[00:09:49] Speaker 02:
As I stated in the answer to Judge Taranto's question, there are a number of different configurations internally that you can use to configure a heat exchanger.

[00:09:59] Speaker 02:
What's common to all of those is the enclosed channels or tubes, as the board found.

[00:10:03] Speaker 02:
That's the exclusive disclosure in the specification.

[00:10:07] Speaker 02:
And that use of a term repeatedly, consistently, and exclusively

[00:10:13] Speaker 02:
can manifest the patentee's intent to so limit the term.

[00:10:16] Speaker 02:
That's been the holding of this court in the Erdetto case and subsequent cases.

[00:10:22] Speaker 02:
And I would specifically analogize this case to the Abbott diabetes care case that's discussed in the party's briefing.

[00:10:31] Speaker 02:
There, the term was electrochemical sensor.

[00:10:34] Speaker 02:
And the patent consistently and exclusively depicted that as the sensor that did not have external cables or wires.

[00:10:43] Speaker 02:
And then there was a single statement in the background in that case that disparaged sensors that did have the external cables or wires.

[00:10:53] Speaker 02:
And this court found rightly that the term was limited to sensors without the external wires.

[00:11:01] Speaker 02:
And this case is the same.

[00:11:02] Speaker 02:
We have repeated, consistent, and exclusive depiction of heat exchangers as devices with flow paths through the device that are enclosed.

[00:11:13] Speaker 02:
And the background disparages or says that fins were the systems of the past that were not sufficient.

[00:11:20] Speaker 02:
So the most natural reading under Phillips, the most natural reading is that the inventor here intended the term not to encompass fins to be an improvement over the use of fins.

[00:11:34] Speaker 02:
And I would just turn to also emphasize that the prosecution history is instructive in this regard.

[00:11:43] Speaker 02:
We have a chain of provisional applications that the patents claim priority to.

[00:11:47] Speaker 02:
The earliest provisional in that chain has a wall with fins that was located between the open and closed loop, that separated the open and closed loop.

[00:11:58] Speaker 02:
But nowhere did the provisional describe that structure, that thinned wall, as a heat exchanger, because it's not a heat exchanger.

[00:12:05] Speaker 02:
The inventors didn't consider that to be a heat exchanger.

[00:12:08] Speaker 02:
It was in a later provisional, the 736 provisional, that first described the heat exchanger invention.

[00:12:16] Speaker 02:
The title was Heat Exchanger for an Electronic Display, and it expressly in paragraphs three and five distinguished from the use of fins.

[00:12:26] Speaker 02:
So that further instructs what did the inventors actually invent here and intend to envelop with the claims.

[00:12:34] Speaker 02:
It was not fins.

[00:12:35] Speaker 02:
That was the prior art.

[00:12:36] Speaker 02:
That was what was conventional.

[00:12:38] Speaker 02:
They invented using instead a heat exchanger.

[00:12:42] Speaker 02:
And we think the claim should be construed accordingly.

[00:12:45] Speaker 02:
I see that I'm into my rebuttal time.

[00:12:49] Speaker ?:
OK.

[00:12:49] Speaker 04:
Thank you.

[00:12:50] Speaker 04:
Will we serve it?

[00:12:51] Speaker 04:
And let's hear from them.

[00:13:03] Speaker 00:
May it please the court?

[00:13:05] Speaker 00:
My name is Fahad Patel with the PTO.

[00:13:07] Speaker 00:
I wanted to start with what my friend ended with, where he asked the question, what did the inventor invent in this particular patent that's at issue?

[00:13:17] Speaker 00:
And we disagree that the invention is the heat exchanger.

[00:13:20] Speaker 00:
The specification does not say that the heat exchanger here is inventive or unique.

[00:13:27] Speaker 00:
The invention is very different here.

[00:13:28] Speaker 00:
The issue in the prior art was that

[00:13:32] Speaker 00:
outdoor displays got hot because they were in the sun.

[00:13:36] Speaker 00:
And so when the sun shines down on an outdoor display, it heats up the front of the display, and that heat can cause problems.

[00:13:43] Speaker 00:
And so what the invention was about

[00:13:46] Speaker 00:
was having two loops for cooling the display.

[00:13:51] Speaker 00:
So there was a closed loop that would circulate gas around the display, pick up the heat from the front of the display, and then move that to the heat exchanger where a second loop would blow that heat out of the compartment.

[00:14:07] Speaker 00:
So that's the point of the invention.

[00:14:09] Speaker 00:
It's the heat from the sun that gets picked up.

[00:14:13] Speaker 00:
It's not about the heat exchanger.

[00:14:14] Speaker 00:
And in fact, the specification, as the court noted in column four, explicitly states, and I'll just go back to this language because it's really critical here.

[00:14:25] Speaker 00:
It says, many types of heat exchangers are known.

[00:14:28] Speaker 00:
That's a general statement about

[00:14:31] Speaker 00:
heat exchangers being known in the art.

[00:14:34] Speaker 01:
They are undisputed that one type of heat exchanger in the prior art at least or somewhere is a rib, right?

[00:14:44] Speaker 01:
A rib can be a heat exchanger.

[00:14:46] Speaker 00:
Yes, it is.

[00:14:47] Speaker 01:
That's undisputed.

[00:14:48] Speaker 01:
I think the argument here is that they're contending that they've used the word in the claim in a different way, right?

[00:14:55] Speaker 00:
I agree, Your Honor, that it is undisputed that

[00:15:01] Speaker 00:
In the art, a heat exchanger could include a fin and is broadly used.

[00:15:06] Speaker 00:
In fact, the other side admitted that multiple times in the underlying proceeding that the ordinary use of the term heat exchanger is very broad.

[00:15:16] Speaker 01:
So the problem here maybe is that they shouldn't have used the word heat exchanger in their claim, and they should have said cross flow, all those other words that are in the specific embodiments in the claims, right?

[00:15:27] Speaker 01:
I mean, in specification.

[00:15:29] Speaker 00:
Exactly.

[00:15:30] Speaker 04:
Can you respond along these same lines to your friend, I think twice cited language in the background section of the

[00:15:38] Speaker 00:
patent talking about just any I think he characterized them as disparaging the use of fins so response I think you responded to that in your brief but if you could just reiterate yeah happy to and we're now at appendix 237 which is the the background and just about bottom of column one top of column two exactly bottom of column one top of column two and again the

[00:16:05] Speaker 00:
The issue with the prior art systems, and actually it's really set forth in column two, beginning at lines, I guess nine or 10, where it says, in particular, cooling devices for electronic displays of the past have generally used convective heat dissipation systems that function to cool only the rear interior portion of the display.

[00:16:37] Speaker 00:
By itself, this is not adequate in many climates, especially when radiative heat transfer from the sun through a display window becomes a major factor.

[00:16:46] Speaker 00:
So this is what I started out my argument talking about.

[00:16:51] Speaker 00:
The prior art systems were cooling the back, the back part of the housing.

[00:16:57] Speaker 00:
Whereas the problem that this inventor encountered was heat that was in the front of the display from the sun.

[00:17:05] Speaker 00:
So the invention was how to get rid of the heat that's in the front.

[00:17:09] Speaker 00:
And it has nothing to do with fins in particular.

[00:17:12] Speaker 00:
There's no problems identified.

[00:17:15] Speaker 03:
Let me just see if I'm understanding.

[00:17:16] Speaker 03:
So at the bottom of column one, it says conductive and convective heat transfer systems for displays generally attempt to remove heat from the electronic components through the sidewalls.

[00:17:28] Speaker 03:
Next sentence.

[00:17:29] Speaker 03:
In order to do this, the systems of the past have relied primarily on fans for moving internal air or ingested

[00:17:38] Speaker 03:
ambient air within the housing past the components to be cooled and out of the display.

[00:17:44] Speaker 03:
And then it says to those that it says sometimes you do that by putting them through fins.

[00:17:51] Speaker 03:
And you're saying this invention is about air that is too hot and that's not yet interior.

[00:17:59] Speaker 03:
And so you've got to move it somehow from the front out the back.

[00:18:04] Speaker 00:
Exactly, using heat transfer.

[00:18:06] Speaker 03:
So whatever else, just to put it back in the Edetto or whatever that case is called, the COVID case also, that's not a disparagement of using fins in a process for moving hot front air.

[00:18:25] Speaker 00:
Exactly right.

[00:18:26] Speaker 00:
Exactly right.

[00:18:27] Speaker 00:
Yes, Your Honor.

[00:18:30] Speaker 00:
We didn't talk about this.

[00:18:35] Speaker 00:
But we do have what we think is a strong forfeiture argument in this case on claim construction.

[00:18:41] Speaker 00:
And we had a table in our green brief that is on page 29, where we put the two constructions side by side.

[00:18:54] Speaker 00:
On the left was MRI's construction to the board.

[00:18:58] Speaker 00:
On the right is MRI's construction to this court.

[00:19:01] Speaker 00:
And these two constructions are significantly different.

[00:19:06] Speaker 04:
Your friend kind of responded to that, at least briefly, by saying, this is what we pressed all along, the deal with fins.

[00:19:14] Speaker 04:
I haven't read the entire record and every word of it, but I have no reason to doubt him.

[00:19:19] Speaker 04:
Do you have a disagreement with his take on what happened before the board and that this is clearly their argument that included the exclusion of Finns?

[00:19:27] Speaker 00:
Yeah, very much so.

[00:19:27] Speaker 00:
Very much disagree.

[00:19:28] Speaker 00:
We believe that their argument has shifted in a meaningful way and it deprived the board of an opportunity to consider the argument that they're pushing forth now.

[00:19:39] Speaker 00:
And if you look at the two constructions, at the end of the day, it is MRI's obligation to tee up a dispute to the board.

[00:19:46] Speaker 00:
And the board then responds to the dispute that's presented to it.

[00:19:51] Speaker 04:
Well, it's kind of an admission on your part that we can't affirm the board's decision because it didn't deal with the

[00:19:58] Speaker 00:
The board dealt with the issue that was before it.

[00:20:02] Speaker 00:
It was the correct issue that was in front of the board.

[00:20:05] Speaker 00:
What the board focused on was the language enclosed channels or tubes.

[00:20:11] Speaker 00:
And that's in the board's decision.

[00:20:12] Speaker 00:
We can go through that.

[00:20:16] Speaker 03:
What if one read, so I'm looking at your little chart on page 29 of your brief, where you say, this is the construction on appeal.

[00:20:31] Speaker 03:
Devices with enclosed flow paths for passing open and closed loop air through the device.

[00:20:36] Speaker 03:
That's basically the same as what's on the other side.

[00:20:40] Speaker 03:
and not to include using fans to move air into convectively thermal communication with fins.

[00:20:50] Speaker 03:
Suppose one read that last piece, and I know I'd be adding words here, but I think Mr. Reed seemed agreeable to the words.

[00:20:59] Speaker 03:
Not using only fans to move air into convectively thermal communication with fins.

[00:21:10] Speaker 03:
so that it's still all about having enclosed paths on the front and the back, and this and not is really meant to say, and doing this other thing without doing the first thing.

[00:21:27] Speaker 03:
Then it's not really a material difference.

[00:21:31] Speaker 00:
I think there would be closer in that case.

[00:21:33] Speaker 00:
But the construction to the board doesn't say anything about fins at all.

[00:21:41] Speaker 00:
It doesn't say not fins.

[00:21:44] Speaker 00:
The other difference is that theoretically there is something different between channels or tubes versus flow paths.

[00:21:54] Speaker 00:
I don't know what that difference might or might not be.

[00:21:57] Speaker 00:
developed before the board, but I don't know how the board would have seen the prior art reference, for example, under a broader term like flow paths as opposed to enclosed channels or tubes.

[00:22:09] Speaker 00:
The board focused on the dispute that was before it, the language enclosed channels or tubes, and they rejected that as being within the scope of heat exchanger.

[00:22:19] Speaker 00:
Now if the claim instead that the construction was flow paths, I don't know

[00:22:25] Speaker 00:
Perhaps they would have found that the prior art had a flow path.

[00:22:35] Speaker 00:
If there are no other questions for the court?

[00:22:39] Speaker 04:
No.

[00:22:39] Speaker 04:
Thank you.

[00:22:39] Speaker 04:
Thank you.

[00:22:50] Speaker 02:
Your Honors, I'd like to start where my friend did with his disagreement that the invention was the heat exchanger.

[00:22:58] Speaker 02:
And it sounded to me like an attempt to read the heat exchanger out of the invention.

[00:23:04] Speaker 02:
But if you look at the summary... That's not what he was saying.

[00:23:08] Speaker 03:
He was saying that the key contribution of this invention is to do something about the hot air at the front.

[00:23:16] Speaker 02:
So the way that the invention... Take it and put it through a heat exchanger.

[00:23:22] Speaker 02:
So it's not just anything that exchanges heat.

[00:23:24] Speaker 02:
The way this invention works is to more effectively remove the heat from that closed loop that passes in front of the display to the open loop.

[00:23:34] Speaker 02:
And we know from the background that the convective, that the heat exchanger was key to that and that the convective use of fins was not sufficient because that's what the background tells us.

[00:23:49] Speaker 02:
My friend is arguing that the claim covers convectively thermal communication with fins, but that's an unnatural reading.

[00:23:58] Speaker 02:
That's not what a person of ordinary skill in the art would understand from how it's described in the specification.

[00:24:05] Speaker 02:
Turning briefly to the forfeiture argument,

[00:24:11] Speaker 02:
The argument that the claims do not cover fins, that they should not be construed to cover fins, was argued repeatedly throughout the decision below.

[00:24:21] Speaker 02:
That's why the final written decision at pages 26 and 31 addressed that point in those arguments.

[00:24:28] Speaker 02:
It was argued in the Patent on a Response, page 956 of the appendix.

[00:24:33] Speaker 02:
It was argued in the CER reply at 1088 to 89 of the appendix.

[00:24:40] Speaker 02:
It came up in the oral hearing as we've described in the gray brief at pages 5 to 6.

[00:24:46] Speaker 02:
So that argument is simply misplaced.

[00:24:52] Speaker 02:
It was a key dispute during the entirety of the proceedings below.

[00:24:56] Speaker 02:
There are no further questions.

[00:24:58] Speaker 02:
Thank you Your Honor.

[00:24:59] Speaker 04:
We thank both sides and the case is submitted.