[00:00:00] Speaker 00:
The next case for argument is 24-2300, Manufacturing Resources v. Wiley.

[00:00:08] Speaker 00:
Mr. Reid, good morning. Good afternoon.

[00:00:11] Speaker 02:
Good afternoon. May it please the Court. David Reid for MRI.

[00:00:16] Speaker 02:
Claim 12 recites cooling using a combination of a closed loop and an open loop, where an open loop passes along the backlight of an LCD display. There are two grounds here, the Carpinen ground and the Otamar-Moto combination. I plan to address both, but I'll begin with the Carpinen ground and the APA issue.

[00:00:40] Speaker 02:
The board construed a long-to-mean coextensive width and insufficient proximity to the backlight without giving MRI notice and an opportunity to respond under the new construction.

[00:00:55] Speaker 02:
In the petition, Samsung construed along the backlight to mean in thermal communication with the backlight.

[00:01:02] Speaker 02:
And the board rejected Samsung's construction, rightfully so, but came up with a different construction, the coextensive width and insufficient proximity to construction.

[00:01:17] Speaker 02:
MRI never had the opportunity to present.

[00:01:19] Speaker 01:
In the claim construction part, I don't think that you think that Close proximity was in the initial claim construction?

[00:01:27] Speaker 02:
Your Honor, that construction was rendered as part of the analysis of the carpenting ground, but the USPTO hasn't disputed that that is claim construction, and we cited to the Microsoft versus IPA case in which the board discussed This court found that the board construed a claim in the context of analyzing the prior art, and we believe that's what the board was doing here when it determined the scope of the claim.

[00:01:59] Speaker 02:
The board's analysis established the scope and meaning of the claim.

[00:02:03] Speaker 04:
Assuming that is claim construction, wasn't it basically your construction other than about you wanted to also exclude intervening structures?

[00:02:16] Speaker 02:
No, Your Honor. Our construction was that along the backlight meant next to the backlight. And, yes, we believe that that means that it excludes intervening structures. We believe that sufficient proximity and coextensiveness, that's just a different concept and is one that we never had the opportunity to address.

[00:02:38] Speaker 04:
You asked for plain and ordinary meaning and also that intervening structures should be excluded. Did I misunderstand your position?

[00:02:48] Speaker 02:
So in our claim construction section of our patent owner response, we were faced with Samsung's theory that along the backlight meant in thermal communication with the backlight. And that was the theory under which Samsung had argued obviousness. So our claim construction section was focused on rebutting that construction and that theory under which the obviousness theory applying that construction.

[00:03:19] Speaker 02:
Later in our patent owner response, we, in the context of addressing the carpeting ground, we affirmatively explained our understanding that, and this is on page 401 of the appendix, that the claim uses the positional term along to claim the inventive cooling feature of directly cooling the backlight using ambient air passing next to the backlight. And then four pages later on page 405 of the appendix, We explained that that does not encompass a flow path that is separated from the backlight by another flow path and other intervening structures.

[00:04:01] Speaker 04:
So it seemed like the Board understood that to mean that your position was basically plain and ordinary meeting, but certainly that along the connoted a positional relationship as opposed to being satisfied more broadly just by a thermal communication, right?

[00:04:22] Speaker 02:
Yes, we agree that the term along in our position was that the term along was positional, it's a preposition, and not connoting thermal communication, which is addressed elsewhere in the claim by the coolable limitation. Okay. But the dispute really is, well, what is then the position? And we said the position means next to the backlight, the flow path being next to the backlight. And the board disagreed with that and instead determined that it's enough if the flow path is sufficiently proximate and coextensive with the backlight.

[00:05:05] Speaker 02:
And that's brand new. We never saw that happening.

[00:05:08] Speaker 00:
We get a lot of complaints about the APA, and you say it's brand new. One, we've got a discreet thing going on here. This isn't rocket science. This is really along the backside and plain and ordinary meaning. The board could have easily said, I'm giving it the plain and ordinary meaning, and then said, and implying the ordinary meaning, that means coextensive and sufficient proximity, because that seems like a genuine application of the term along the backside.

[00:05:40] Speaker 00:
But there's a statement in this from the hearing, it's in the appendix at 621 and 622, that the APJ, I mean, these hearings are valuable, I think. The APJ says very astutely and clearly, you've got one side about thermal stuff, that's way off. And you've got this other side, and then they kind of, auditions what he's going to say in the claim construction. So to say this came at you and you had no idea, he said, you've got extreme positions, there's a middle ground.

[00:06:14] Speaker 00:
Your issues, I think, stemmed from the fact that there were, as Judge Stark referred to, there are structures in between. That's what you wanted to get rid of, right? Because that was the prior art that had those structures, right? Right.

[00:06:26] Speaker 02:
Well, we believe that that accurately encompassed the capture of the invention. But yes, we did not believe that. We didn't believe that it covered the prior art. That's correct.

[00:06:36] Speaker 00:
Okay. And the other side clearly did believe that it covered. I don't think this came out of nowhere.

[00:06:44] Speaker 00:
And you were asking for plain and ordinary meaning. I think adopting even the plain and ordinary meaning, the board could have said, what would you have done if the board had said, we agree, it's plain and ordinary meaning. But our view of plain and ordinary meaning is close proximate or sufficient proximity and coextensiveness.

[00:07:01] Speaker 02:
That's a great question, Your Honor. And with notice, MRI could have argued that Karpinen's open loop was not coextensive.

[00:07:12] Speaker 02:
At Appendix 976 of the appendix is Figure 3 of Harpman.

[00:07:17] Speaker 02:
It includes flow controllers that form flow ducts, such that the open loop of carpenin only passes behind a portion.

[00:07:27] Speaker 00:
And you didn't know to make that argument in all the discussion that was going on here, and the board was clearly not clear what the middle ground was. They're saying it's a lot of gray area. Wouldn't that have been your key? Like, well, I better get to the heart of what I need them to say.

[00:07:45] Speaker 02:
No, Your Honor. We had no notice. The ground that we were presented with in the petition, which governs the scope of the proceedings, is Samsung's theory, which was the carpet and open loop was along the backlight because it was in thermal communication.

[00:08:01] Speaker 00:
But the question here isn't whether it was at the petition. It's whether the board has the authority to to do something that's not precisely what one side or the other is asking. And the answer is it does, and there needs to be, though it can't come out of nowhere. The parties have to have a sufficient opportunity to present their arguments relating to that definition. And I'm not seeing where they didn't.

[00:08:27] Speaker 02:
Alluding to a new construction at oral argument and then treating that as sufficient notice or opportunity to respond is prejudicial because we didn't have the chance to brief co-extensiveness or proximity. We didn't have the chance to have our expert opine on co-extensiveness and proximity.

[00:08:48] Speaker 02:
And the APA guarantees us that right. Under the APA and the Axonics decision, when the board adopts a new claim construction following institution, and here there was no claim construction at institution, parties must have adequate notice and an opportunity to respond under the new construction. And that means an opportunity to submit evidence and argument, not just to say, hey, at oral argument, we think you might be wrong, and we definitely think they're wrong, so how about a middle ground?

[00:09:28] Speaker 02:
That's not the notice that's required and the reason why.

[00:09:41] Speaker 04:
To the construction disputed by the parties, the board need not give the parties prior notice of the exact construction the board adopts and cited our Western Gecko decision. Why is that not this case?

[00:09:53] Speaker 02:
So the two constructions that were argued by the two sides during the case, one was thermal communication, clearly proximity and distance. and co-extensiveness are totally different concepts than thermal communication. The other construction was the MRI construction in which the flow path needed to be next to without intervening structure.

[00:10:21] Speaker 02:
under which Carpinen is undisputed, there was no argument, would not have been validated. Because of the intervening structure, not because of the next two. Well, that's what next two means. Because Carpinen, recall, it has, well, it doesn't teach a backlight at all, but assuming the backlight is where the board found it to be. You have a backlight, then you have a closed loop, then you have a wall, and only then do you have an open loop. So that's not next to the backlight. It's separated. Here you go.

[00:10:49] Speaker 00:
I'm just back to what the A.J. said at the hearing, is not put you on notice to answer this. Because he says, or she says, it seems to me like along the backlight possibly and reasonably means in the same direction as the backlight, you know, along its periphery, even if it's not contacting the backlight. You know, it may set a little bit off of the backlight, but the flow still has to be along the contour of the backlight.

[00:11:13] Speaker 00:
well, if that wasn't what you thought along the backlight was, did you come back and say, no, no, no, no, here's why you're wrong. It has to be contacting it. Where he previews that this is what he thinks. Isn't this very close to what the construction we're debating here about?

[00:11:33] Speaker 02:
No, Your Honor. We believe it's very different than the construction we're debating because under our construction or MRI's construction, Carpenter doesn't teach the limitation. And under this new construction that the board was presenting, They found that it does. And we didn't have a chance to ask our expert or put in an argument about co-extensiveness, where Carpenter's open loop is not co-extensive.

[00:11:57] Speaker 00:
I mean, forget co-extensiveness. What about, I mean, co-extensiveness, your problem is it precludes your argument that you can't use it with intervening structures. That's the bottom line here. It's whether Carpenter is prior art, right, that covers this. So that's the game. of the intervening structures.

[00:12:18] Speaker 00:
You knew that, right? Everybody knew that, right?

[00:12:22] Speaker 02:
So I'll say that that was the ITC's construction. The ITC, in the co-pending proceeding, upheld the validity of the 287 patent because Karpinen's open loop was not along the backlight, because there were intervening structures and flow path in between. And everybody knew that? Everyone knew that. And so Samsung was maintaining its thermal communication construction, which the ITC had rejected. But those were the only two options that the parties were aware of going into the hearing.

[00:12:59] Speaker 00:
You're into your battle times.

[00:13:00] Speaker 01:
Can I ask a question? I thought when the board was talking about the claim construction, I'm looking at A-16, A-16.

[00:13:10] Speaker 01:
And they reached the conclusion that along it requires, they said, consistent with the disclosures in the 287 patent. And the 287 patent at 446 to 54 talks about close proximity. Okay.

[00:13:29] Speaker 02:
I'm sorry, on page 16, where are you?

[00:13:31] Speaker 01:
Yeah, I'm just, the question about whether you had any notice about close proximity. I think the analysis of the board saying that their decision as to what the scope was, they are citing in the patent to references to close proximity.

[00:13:54] Speaker 02:
I'm not seeing the reference to proximity on page 16.

[00:13:57] Speaker 01:
I'm looking at, but I'm looking in the patent.

[00:14:02] Speaker 00:
Is there not a reference to proximity in the patent? The citation here is to column 4, line 5046.

[00:14:09] Speaker 00:
Column 4, line 46 going forward talks about close proximity.

[00:14:16] Speaker 02:
Oh, that's discussing placing the backlight in close proximity to the plenum of the closed loop such that the open loop is a constricted channel. So that is a different unclaimed feature of the invention was to constrict that flow path of the open loop, that's not saying put the open loop close to the backlight. Indeed, in Figure 3, you'll see with the dotted arrows of the 287 patent that every embodiment, the dotted arrows are the ambient air, the open loop.

[00:14:53] Speaker 02:
In every example, that open loop passes right next to the backlight.

[00:14:58] Speaker 02:
Sorry, just real briefly.

[00:14:59] Speaker 04:
On page 15, the board says that patent owner advocates for applying the plain and ordinary meaning of of along the back light. Do you deny that that was your claim construction position?

[00:15:11] Speaker 02:
No, that's correct. We were arguing for the same plain and ordinary meaning that the ITC had applied, so that excluded intervening structures.

[00:15:22] Speaker 04:
But if you asked for plain and ordinary meaning and the board had an obligation essentially to determine what plain and ordinary meaning is, why is that not all within what's reasonably foreseeable so you had adequate notice?

[00:15:35] Speaker 02:
Well, on pages 401 and 405 of the appendix, we went further and explained what that plain and ordinary meaning is. So it wasn't just plain and ordinary meaning, whatever you think that is. We explained that plain and ordinary meaning was next to the backlight and did not encompass a flow path that was separated by other structures.

[00:15:58] Speaker 00:
Again, you said the ITC's claim construction included the structures or did not?

[00:16:06] Speaker 02:
So the ITC held that along the backlight, you could not separate the flow path from the backlight by intervening structures and still be along the backlight. Does that make sense?

[00:16:20] Speaker 00:
Okay, let's hear from the other side.

[00:16:30] Speaker 03:
Good afternoon, Your Honors. May it please the Court.

[00:16:34] Speaker 03:
MRI had notice of the claim construction issue with respect to the limitation along the backlight in the petition, and they also had notice how it was being applied to the carpet and prior art reference.

[00:16:47] Speaker 03:
In the petition, Samsung advocated for a broad construction, which was thermal communication. In the Pat Nona response, they argued for the plain and ordinary meaning, so they had adequate notice and an opportunity to respond. They also responded in their...

[00:17:03] Speaker 00:
Adequate notice. I mean, because you advocated the thermal thing, which was rejected by the board, that was adequate notice of what the board was going to come up with in terms of its construction? I don't understand.

[00:17:14] Speaker 03:
They had adequate notice that the along the backlight limitation was in dispute, and they had an opportunity to present that.

[00:17:20] Speaker 00:
Oh, well, there's no, I don't think your friend's disputing that. I think your friend is disputing, his argument is the construction that the board ultimately came up with is one that they didn't have notice of.

[00:17:33] Speaker 03:
And I would disagree with that because if you look at the board's construction at A16, they considered the construction proposed by Samsung, which was the thermal communication. They rejected that. They pointed to MRI's proposed construction as the plain and ordinary meaning. And then at the bottom of page A16, this is where they specify that along the backlight indicates the position of the airflow relative to the backlight and and does not require contact with the backlight, and is not met merely by having thermal communication.

[00:18:08] Speaker 03:
And that's basically what MRI had advocated for, the plain and ordinary meaning.

[00:18:14] Speaker 04:
They say, yeah, except that they exclude intervening structures, which is what the whole case is about with the carpeted grounds. So putting aside which construction is right, how did they have notice and an opportunity to be heard on a construction that maybe looks a lot like theirs, except it doesn't include this exclusion on which the whole case turns.

[00:18:40] Speaker 03:
Right. So they had notice of Carpinin and that Carpinin had these intervening structures. And in their proposed construction, if they wanted to exclude intervening structures like those in Carpinin, they should have proposed that to the board instead of the plain and ordinary meaning. It wasn't until they were addressing whether Carpinin teaches that along the backlight limitation that they then argued that these intervening structures were didn't meet the along-the-backlight limitation.

[00:19:11] Speaker 04:
They say at 401 and 405, that's where you can understand what they meant by plain and ordinary meaning. You say that's not correct?

[00:19:20] Speaker 03:
That's not correct, because if you look at those pages, that's where they're assessing whether carpenting teaches the along-the-backlight limitation. That's not a claim construction argument that they made to the board. And again, if you look at the oral hearing, which is also helpful in this point, they argued, the question came up, well, are intervening structures encompassed? Do you want to give us the page number? Sure.

[00:20:04] Speaker 03:
Sorry, I've got it right here.

[00:20:08] Speaker 01:
It's A669.

[00:20:11] UNKNOWN:
669?

[00:20:11] Speaker 03:
Yes, sir.

[00:20:16] Speaker 04:
Second volume.

[00:20:18] Speaker 03:
Yes, it's in volume two.

[00:20:20] Speaker 04:
Sorry.

[00:20:25] Speaker 03:
And at the top of the page, Judge Lee is asking, if you travel along the rear surface of the backlight, wouldn't you necessarily be contacting that backlight? What's the difference between the language that was rejected by the examiner and the language that it was amended to? And MRI says...

[00:20:41] Speaker 03:
When you talk about a long, it's a positional limitation. I think a long would encompass the concept of direct contact, but I don't think it requires direct contact. You could envision a scenario where the backlight has a film or something like that on it, and that's an intervening structure. Having a film or something on the backlight between the airflow passageway and the backlight, that's an intervening structure. They were arguing against a construction that required direct contact that allowed for these intervening structures.

[00:21:16] Speaker 00:
And if that was something that they thought these intervening structures... Isn't there something else in the transcript where they expressly say intervening structures are okay? I think there was something else beyond this testimony.

[00:21:31] Speaker 03:
I don't have anything specific.

[00:21:33] Speaker 01:
This is only it?

[00:21:34] Speaker 03:
I don't think there's anything other than this.

[00:21:37] Speaker 03:
Okay. Yeah, this is what we cited, too, in our brief.

[00:21:41] Speaker 03:
But again, when they presented all of their claim construction arguments and they had a patent owner response and a surreply, an expert declaration, and then this oral hearing, they never argued that these intervening structures were not encompassed by the claim language. It was only when they were mapping Carpinen to teaching that limitation that they argued Carpinen doesn't meet the limitation. But they forfeited the argument that Carpinen doesn't teach the along-the-backlight limitation under the board's constructions.

[00:22:11] Speaker 04:
So if a patent owner says our claim construction position is plain and ordinary meaning, what does that do to their right to notice of the board's ultimate claim construction? That is, everyone agrees here that this claim term was in dispute. And if you're right, and I see some evidence, for instance, 397, where MRI says we're just going to apply the plain and ordinary meaning, does that mean whatever the board says ultimately in the final written decision is the construction, the patent owner has no additional opportunity to be heard on the application of that construction because they just basically said to the board, give it the plain and ordinary meaning, and we don't know what that is?

[00:22:56] Speaker 03:
Well, I think you have an opportunity if you think the plain and ordinary meaning means something specific, especially when you have a prior art reference that you are on notice of has these intervening structures. And that's the key issue about the case. If you think plain and ordinary meaning excludes intervening structures, you need to make that argument.

[00:23:16] Speaker 04:
But that's my question. I guess you're saying yes. If I'm the patent owner and I say plain and ordinary meaning knowing there's this issue about the prior art and the structures and I don't say for claim construction purposes, my construction excludes those structures, then I'm not entitled to any further notice as to what the board thinks the right construction is or how to apply it. I find out with the rest of the world at the final written decision, and I never get to be heard on that. Is that right?

[00:23:45] Speaker 03:
Well, you can still be heard on it. They could have requested rehearing before the board. They're not obligated. They're not obligated, but it's certainly another opportunity. If they thought the board got the construction wrong and they misinterpreted some of these arguments, that was certainly an opportunity to be heard. They chose not to. They could have requested direct review. They chose not to.

[00:24:08] Speaker 04:
What do you say about his Axonics point? In Axonics, we said, Before the board decides a case under a construction adopted after the institution decision, it must give the petitioner, in that case, so I would assume a patent owner as well, an opportunity to respond to the new construction, whether that construction was first proposed by the patent owner or the board. Is that our situation here?

[00:24:33] Speaker 03:
I don't think so. This isn't a situation where the board pulled a new construction out of thin air for a limitation that wasn't in dispute. The board is not, and in this case, both parties proposed constructions. The board is not limited to choosing one versus the other. It's allowed to choose the correct one. And the construction it landed on is largely the same as what MRI proposed.

[00:24:59] Speaker 03:
So again, it's really their argument is just that carpenting doesn't teach that limitation, which is not a claim construction argument. That's a fact finding that the board made based on the evidence of record, including the carpenting reference and the expert testimony of Dr. Gillespie.

[00:25:15] Speaker 01:
Well, I still don't think that's going to satisfy your adversary. He's saying the board came up with sufficient proximity to as a claim limitation and never told where to come from.

[00:25:31] Speaker 03:
So those terms, those are not in the board's claim construction. Again, if you look at the board's claim construction, it says along the backlight indicates the position of the airflow relative to the backlight, does not require contact with the backlight, and is not met merely by having thermal communication. The board's construction doesn't say anything about close proximity or thermal communication. Those are terms that the board used in describing how carpenin teaches along the backlight.

[00:26:01] Speaker 01:
The board ends up saying carpenin teaches along the backlight because the flow is in sufficient proximity in carpenin, notwithstanding the intervening structures.

[00:26:12] Speaker 03:
Exactly. In the sufficient proximity.

[00:26:14] Speaker 01:
Why isn't that saying that sufficient proximity is a claim limitation? Right.

[00:26:21] Speaker 03:
I think they're just describing how Karpenin teaches the along the backlight limitation because the limitation is it doesn't require contact and it's not met merely by having thermal communication, but it does need to be in close enough proximity so you could have some thermal communication to actually perform the cooling.

[00:26:39] Speaker 01:
But when you say thermal communication is not enough.

[00:26:43] Speaker 03:
It's not enough.

[00:26:44] Speaker 01:
There has to be something more. So assuming that there's Nowhere in the patent do you learn or do you know what the something more is. The claim is indefinite, isn't it?

[00:26:56] Speaker 01:
Well, I think here we know something. I mean, you have to have some indication in the patent of if thermal connection is insufficient, what would suffice.

[00:27:08] Speaker 03:
Right. And in this case, the board said just thermal communication by itself is not enough. You need to have thermal communication plus the position of the airflow. And that's indicated in carpeting with the coextensiveness. It shows that the airflow comes in one of these ventilator slots. It goes all the way across coextensive with the backside of the backlight. and then exits the flow passageway. And in the expert testimony of Dr. Gillespie.

[00:27:33] Speaker 01:
The reason why a thermal connection was no good is it could be so far away from the backlight that it would be irrelevant.

[00:27:40] Speaker 03:
Right.

[00:27:40] Speaker 01:
On the other side of the room.

[00:27:42] Speaker 01:
Exactly. If the flow path is. There has to be something in between here and the other side of the room to make the claim not indefinite when you're talking about where is along the backlight.

[00:27:55] Speaker 03:
Right. And the board and the parties never, you know, got into the issue of, well, how close is close enough? They just said you have to be, you know, close enough to perform the cooling.

[00:28:05] Speaker 01:
Well, they say Carpandon is close enough.

[00:28:08] Speaker 03:
Yeah, and I think Carpandon is close enough because that is a cooling.

[00:28:12] Speaker 01:
Because it's in close proximity or it's in sufficient proximity.

[00:28:17] Speaker 03:
Right, exactly. It's sufficient to perform the cooling step because it goes along the backlight display and it comes in contact with those cooling fins, which then bridge the gap and contact the backlight. So it does perform the thermal communication, the cooling step, but it also has the positional requirement where it's coextensive with and along the backlight.

[00:28:41] Speaker 04:
MRI says at page three of the reply brief, and I think you disagree with this, but that's what I'm just trying to confirm, that the USPTO does not contend that the board's construction was materially the same as the constructions briefed by the parties.

[00:28:58] Speaker 04:
That's what they say, that you don't contend that the board's construction was materially the same as, for example, their proposal. But I'm hearing you to say, yes, we do. We basically adopted their construction. Construction of plain and ordinary meaning.

[00:29:13] Speaker 03:
I think that's largely correct. I mean, they advocated for plain and ordinary meaning. Samsung advocated for thermal communication. The board agreed with their construction of plain and ordinary.

[00:29:23] Speaker 04:
With the patent owners.

[00:29:25] Speaker 03:
Exactly, yeah.

[00:29:29] Speaker 03:
If there's no further questions, I'm happy to yield. Thank you.

[00:29:41] Speaker 02:
I may, Your Honors.

[00:29:44] Speaker 02:
Even if you disagree that this was claim construction, what the Board was doing, and instead was fact-finding, under the APA, MRI was still required to be provided the opportunity to be heard and to put evidence in under this obviousness theory that the Board It's self-created and then adopted in the final written decision based on proximity and co-extensiveness. That was nowhere in the party's briefing, and most importantly, it wasn't in Samsung's petition.

[00:30:18] Speaker 04:
What do you say to the argument that your construction, I'm looking at it at 397, was plain and ordinary meaning, and the board's construction at 16 was essentially – The same thing. And everything else you're talking about was not purely claim construction. It was just application.

[00:30:39] Speaker 02:
So the first point is that even if it's application, we still have to be provided notice of that theory.

[00:30:46] Speaker 04:
You had every incentive and opportunity to provide whatever evidence you wanted. as to what Carpinen meant under the plain and ordinary meaning of the term you knew was in dispute.

[00:30:56] Speaker 02:
So that theory that Carpinen was taught along the backlight because it was close enough to the backlight, that was never presented. It was only a thermal communication theory.

[00:31:07] Speaker 00:
But that doesn't mean, what you're suggesting is that unless the board adopts everything that the petitioner said, then there's an APA problem. That's not what our cases say.

[00:31:19] Speaker 02:
So you're right. The board isn't required to choose one construction or the other, but if they go a different path, they have to give notice and the opportunity to be heard. That's the Axonics case and Qualcomm and SAS and several others that have been cited. So it's just a fairness point. We should have the opportunity to argue that it wasn't coextensive because of those flow controllers and that it wasn't close enough because of the intervening flow path and

[00:31:46] Speaker 00:
that the whole issue in this case, though? I mean, claim construction is just a tool to get you to the result. And the whole question was whether carbon or whatever was prior art. And the thing about that piece of prior art was the intervening structures. That's the end game here. That shouldn't have been a surprise that we were going to get a claim construction that decided to resolve that issue, right? I don't see the surprise.

[00:32:15] Speaker 02:
The surprise was proximity, how close it was, was never briefed, and the discussion about how close is close enough, that's an intensely factual determination. We should have been able to have our experts talk about it and argue it.

[00:32:30] Speaker 00:
Fred pointed to the stuff in the appendix where you did make a comment that suggested that you had a view of that.

[00:32:39] Speaker 02:
Well, we had a view that intervening structure was – as the ITC found, was not along where it was separated by another flow path, where you have two flow paths, and one is next to the backlight, and another one is on the other side of that flow path. The flow path that's next to the backlight, that's the one that's along the backlight, and that's what the invention was here.

[00:33:02] Speaker 00:
Thank you. Thank you. We can't both side if the case is submitted.