pleasure to move the admission of three highly qualified members of the bar to our court i know they are paula fide because they are serving as my law clerks with distinction and they contributed to the work of my chambers and to this court and i'm pleased to make this motion and now to the formality scythe a move the admissions of jennifer says send bresson bisque who is a member of the bar in good standing of the highest court of virginia and the district of columbia henry won't who is a member of the bar in good standing of the highest court of california and lindsay mccartney who is a member of the bar in good standing of the highest court of new york i have knowledge of the welcome to the bar of the court we look forward to seeing you in the future in a different role and we wish you luck in your future practice one thousand nine fourteen sixty after we hear that case we will briefly adjourn for no more than ten minutes and come back and hear the other three cases with a slightly altered panel the court i do in fact stand here today on behalf of all four of the appellant's i'm going to focus primarily on the infringement question and spend a little bit more get up and in this issues obviously i'm happy to answer questions on the area of other issues but it seems to me  time could more profitably be used focusing on the specific questions the case comes an infringement and to my mind a somewhat unusual posture because the commission expressly acknowledged that and  q completely failed to prove infringement through the expert analyses that he undertook his primary his number one test in comparing the on board versus the baseline he failed to take into extraordinarily unusual circumstance where the claim construction requires you to be able to actually distinguish and turnovers as extra loads which is something nobody can visibly evaluate you can only simulate the commission concluded and on the basis of the expert evidence clearly and support it with only supported by substantial evidence that there was no way that that test could get you home so then the question is what do you do with dr q s second test and here he compares on board v that is the simulated comparing the past and not between that claim language and the allegedly infringing products but with comparison with similar computer simulation question the method we don't challenge that method judge freeman sort of fundamental oh we don't make the argument that you can never just settle in about the way implies right and i think it's important to step back and recognized that when you're dealing in a situation where it's pure simulation and so you don't really have anything that you can hold on to when look yet and feel that the court ought at least be somewhat more skeptical as it evaluates this and you would hope frankly the commission would take the same position but that any trier of fact in that circumstance would would want to assure itself that the experts took them through exactly how the simulation was done and the ultimate conclusion is in fact supported by the evidence and that's the key here is that the conclusion the commission reached that there is in fact provable displacement sufficient to relieve stress based on that second test is simply unsupported by any evidence that second test is based as dr chu expressly states on a linearity assumption that he flatly says is inaccurate there is no linearity between what you have offered on board going to on on board going to offer it where you're trying to compare the internal and the extra loads in that situation it's not additive if it were then you could you could do precisely what he did which is to make those comparisons and say this is the amount of the totality of the loads this is the amount that's attributable on board and so therefore this is the amount that is attributable awkward and then you can make it make some kind of an assessment based on but but nonetheless that recognise disparity if you will it was not felt by the commission to completely negate the conclusion of infringement drawn from the test results test to right but i think the at the end of the day judge lynn the problem you've got is that if you categorically deny that linearity is a is an appropriate assumption then inherently all the data that flow from the sumption are for that reason inherently flawed you cannot make the pivotal distinction between what are extra loads and what are internal loads when you don't know as a as given the entirety of the load which is attributable to which because you're making an assumption that they are related in an additive way when you recognise that they are not in an additive form so that it seems to me at that point this is not an area where the commission's untitled operates this is an area of very technical scientific sixty of the appendix generally speaking they are not linear then why are you making this assumption i want to determine what the result would be if i did make this assumption well that's great and maybe if you're going to pay by the hour that's a reasonable way to proceed but if you're trying to prove something it doesn't prove anything in terms of what evidence you can derive from that if you accept that the linearity assumption is flatly inconsistent with reality well it is isn't he simply recognizing the fact that there isn't a perfect because of the reasons everybody recognizes but none the less despite that that reality the test results  valid i don't know what that means i mean that there's no question that you've got you have a set of data that are based on that on the assumption of one area the question is what what can you infer from those data in terms of whether or not these are extra rhasis internal loads and the answer is you can't tell because you don't know how much of the total load is external and how much of its internal you're assuming that it's that it works in an additive way it could well be that none of it is due to extra loads it would be that all of it is is is due to external load and more fundamentally it's probably true that if you're only taking fifty two products to represent one thousand and twenty products that has to some of them it isn't as to some of them it's not and none of that is analyzed by dr q which is it which is the number one the first flaw in the way analyze it the second flaw in the way he analyzes it is that even under his approach you know he created magnitude data right to demonstrate what the displacement would be and dr sitar mon came back in and said look ok  let's assume that that's the right answer that you can you can ignore the linearity problem in this case and we'll look at the specific data that exists and says and see what it says and and dr sitar mine said well the problem is is that the magnitudes don't show much difference there's no displacement on board versus off board and in some instances the the off work is higher than on board which suggests that the internal loads are greater than the extra loads which is completely inconsistent with the way this is being a tell us why there is no infringement with respect to that claim limitation well it's pretty clear that under any kind of plain meaning of downwardly alongside and if you look at the examples that are that are put forward in the brief showing you the pictures of what you see in the embodiments are all are all specifically in fact bonds that go wires that go very close to the edge of the chip and yet when you look at the accused products they're all traditional bonds that bonding wires which go up and out and so the basic argument which isn't all that complicated is to say look you set out for yourself that it has to be downwardly alongside you look at our chips which go out and away  up and away whatever that is that's not downwardly alongside in order to get there you have to do norms damage to the english language and all and and that's the that's the basic argument there it seems to me obviously quite persuasive in terms of  infringement analysis the third part of this is and this is the point where it seems to me the commission has specifically embraced becoming either a physicist or an engineer or something for a day because  it recognized that the magnitude data that had been generated by q second test based on an improper assumption nevertheless didn't prove what was needed then show the displacement necessary in order to support the conclusion and at that point the commission goes in and says look magnitudes not the right way to analyze this you should be looking at each of the component vectors before you analyze before you in order to come to that conclusion there is not a shred of evidence there is no expert there is no one who testified as to how you are to desegregate the magnitude data both  analyzed this slowly in terms of the magnitude it's the square root of the sum of the squares and i confess my mask ills are not what i might hope they could be at some point but even i remember that the square root of the sum of the squares is one of those things that is that curers a whole lot of hills and when you try to dis aggregate the components of it what you get is first complete sort of hoodoo science that the commission substitutes for a real analysis and more fundamentally even on its own terms fourteen of the fifty two packages demonstrate for each of the factors when broken down into their subcomponents that they are in fact them a straight that there is more stress on on you know internal than there is extra on which again is completely at odds with the ultimate conclusion and more fundamentally casts a gun an extraordinary doubt on the linearity assumption at its core and it seems to me again this is a place where we're not talking about the commission making policy we're not asking the commission to make predictions whereas in the commission to make a factual finding based i have and i simulated world and come to a conclusion and in that context this is to me the classic situation where this court and center cuts want to try are a fact as is dealing in an area that is extraordinarily complicated that it cannot go beyond where the experts will let you go they cannot this aggregate the data and start over and start to make their own analysis and when they do they get it wrong and when you're behind one and that what compounds that is when you go from fifty two products to a thousand and forty products and then you find out that fourteen of the fifty two couldn't even the most extreme and  candidly incorrect theory of this case get you anywhere then they extrapolations of thousand and forty becomes to my mind extremely extremely unjustifiable mr fields i want to ask you again a question about the linearity assumption  judge because dr cume self testified that the linearity assumption is wrong he says it at thirty three five thirty nine he says it again fifty one to sixty in fifty five one ninety four i mean he wrote a nice is it's just simply not true will tell you that if you analyze the data as he suggests what you get are magnitudes numbers that demonstrate that there that the internal stress is greater than the external stress and a significant number of cases which means that he is wrong and then he proves that and he also proves that the prior art which the back system but the prior art would be infringing under that interpretation so all he's doing is challenging the ultimate results that q comes to based on that methodology obviously to do that he has to for those purposes and solely for those purposes assume the the validity of that approach but that unwritten first of all it doesn't remotely represent a concession that the approach is sound and more fundamentally it doesn't overcome the fact that dr q himself said i recognize the linearity assumption is not is not a valid way to go he wasn't using this to prove his case he was simply using this to see if there was better support for the case he thought he had made incorrectly with respect to the first test that he had done he was just trying to reinforce a decision that he had already made independently it's not a basis for separately analyzing this particular problem the last the last thing i want to sort of focus on in this although i do think there's still another serious issue with the secondary causation which is the appreciably relieve stress but i'll leave that part to the group but it does seem to me that when you're in a situation where you cannot know whether or not there has been in print in a particular case until you get the results from dr q s assuming he did it right but from dr q s analysis of what's going on it seems to me we are at a point where you have stretched the indefiniteness doctrine beyond anything that's recognizable this is supposed to be the supposed to provide notice to those we're trying to build a product and whatever else this may do any any test that requires an infringement analysis along the lines of figuring out which are internal stresses and which  us to deal with this kind of a compliant lair it seems to me that in that they are you talking about some of those inherently insoluble it's ambiguous beyond words and as a consequence of it the court not only should find that there is no infringement this case but it carter's arguments in which you have some specific questions for me i have the commission did not act as an expert rather the commission based its finding of infringement so the on what was presented in the record after considering the record as a whole it was my commission's did it seemed to take so root some pieces of this one and use it in the analysis test to that seemed to me the commission arguably went beyond what the evidence the terminals are capable of being displayed with respect to the chip by external loads and that the displacement cost five star loads appreciably relieved mechanical stress and dr q second test otherwise called the direct loading test shows exactly that dr to directly apply the external load displacement vector that he calculated by comparing the on board an awkward displacements of the solder balls to the cues and baseline packages and they get this gets directly into one particular point taking the on board displacement and the awkward displace and comparing them the results would be and i quote somewhat reflective of this external load and that is the only thing the external will let the commission conduct better he does not take the difference of the magnitude of the he takes the difference of the vector and vectors have both direction and magnitude you cannot simply take the difference between two vectors i subtract in then he also did expected step of comparing f to determining the plastic work which is the reliability capulets and so using the cli commissions as the the the magnitude determination from the first as were really not relevant to the the baseline packets using this external load that there was no direct comparison of magnitude of the on board package and offered at it's if there really a meaningless comparison in any case the question is what but but it is the correct that if that was an assumption that was was a basis for the calculations made to draw the conclusion of infringement that assumption is flawed that everything else falls apart i displacement that there is to take the difference between the packets on board and the packets on our fort and to simulate the effects of the p c b the print circuit board what effect would simply that without any two things about this your honor the the specification only discloses the use of conventional binding wires that's the first point the second point is there are no illustrations in the pattern that specifically disclosed the claimed intention responde under the conventional finding or process there may be some clay in the way the wires attached from the tap of the chip to down to the backing element and all him all he did was not require any sort of close otherwise to adopt the closely alongside construction would not just be contrary to some of the preferred body as you would actually exclude every single one of the preferred embodiments in the entire pens and this court is of course cautioned against doing that in the absence of a compelling evidence i want to start by dressing the first payment was made by counsel this morning which was that the commission failed mission found the dr q completely failed were his words to find infringement and of course that's not correct there were two independent tests for ease of reference for calling them tests wanted tests to and were focused on test two here today and the commission of course analyzed that test in detail and found for very good reasons that it was an appropriate test council says that the court should be skeptical of that test because it was a highly technical analysis but then on the other hand he also acknowledged in his argument that it was the only way to conduct the analysis and i have trouble reconciling those those two statements if it's the only way and no one ever claimed it was perfect to the contrary test results for dr q readily acknowledged it wasn't perfect it was an assumption but it was an assumption that he explains was appropriate under the circumstances it was appropriate not only because the claim construction everyone agreed to said that a this place may need to be applied such as the displacement that would exist in use of an actual device subject to formal forces such as doesn't mean exactly it means an approximation is appropriate not every analysis that involves an approximation of course is inherently flawed yet that's what counsel would have this court conclude engineers make approximations all the time in fact probably more often than not engineering depends on approximations the question is whether the approximations were appropriate under the circumstances and the testimony is that they were and let me point you to some of that testimony it appropriate to conclude that there was an arrangement based on said well let's see what happens when i do it because everyone says this is the right weight analyze the problem all except for the sake of argument that it isn't we'll put them to the test and see what happens that's what he did so he began with a series of experts having said this is how he should do  determine and he in fact used the linearity assumption in much more depth and detail for much more extensive purposes than dr q ever did and then when it came to dr q s testimony where he said even if a system isn't perfectly any irony in that he  there were parts of the system that weren't perfectly linear here it was still appropriate it obtained an approximate solution as he described it and he also explained that many of the materials in the packages were in fact were in fact linear there was no cross examination of any sort of any meaningful sort on any of those points so that they rested leaving dr q with that testimony and the contrary testimony in the record in the commission analyzed those facts and concluded as a matter of fact and this is a factual issue regardless of how they try to spin it that was inherently logical and they didn't just leap to that conclusion but they went through the analysis and came to a reasoned conclusion  arguments moving on to this internal versus external forces as counsel for the i t c pointed out that had to do with method one that method two and secondarily it completely obliterated any distinction between displacement on one hand and claimed movement on the other play movement was the subject of an agreed claim construction that forty nine words long i mean something very different than this placement and this test or explain in its briefing that when one tries to start swapping those two terms one for another frown or a smile the solder balls on the bottom of an attached anything will simply move along with the bottom of the package and they won't be any forces applied to them in contrast when the package is on board and there's something tugging at the other end of the the package smiles or frowns there will be forces applied to them and those forces will cause damage to the solder balls and that damage over various over repeated cycles will add up in the solder balls and will eventually lead to their failure and that's what this there's some merit to this argument your honor it suggests that the parties agreed on a very precise definition which itself demonstrates that there was no lack of clarity about what the claim meant the testimony from clarity that was successful your honor there's no no question that the search that was conducted by the parties was successful the reason actually for the forty nine words is the construction the arrives from statements that were made during the prosecution history and we want to track those statements verbatim and that's what we get but at the end of the day we have a situation here where not only was there a construction which under some of this court's recent jurisprudence has been held to to mean the claims are definite but there is a construction that over the side both parties agreed on both parties applied expert after expert after expert when one of the respondents experts was asked would a person of ordinary skill in the our having read this patent understand what's within and outside the scope  claims he said yes i believe they would and had i been asking the questions i probably would have stopped there with a lawyer asking him said yes one more he said you have no no doubt about that and the expert for the responded said no doubt that's the antithesis spoken again and again in the cases and point the court to the exxon case when addressing indefiniteness the question isn't whether it's difficult the question is whether it's impossible and the court in exxon said in fact no matter how difficult somehow there's there's some irrelevance between internal versus extra on the so that you have to be careful about how you interpret movement versus displacement but you know the difficulty here obviously is that the word movement as the one is is being construe forty nine word construction that includes the word displacement which is why we're examining displacement so the suggestion that somehow we're looking at the wrong subject matter or that there's some kind of mix and match problem here seems to me the  is absolutely clear is that the is that q approach was rejected by the commission specifically both the first approach and the second approach and in order to get to the whole which the commission recognized the whole in this case but the commission to it was at this aggregated the magnitude data and started to look at it on a vector component basis and it did that without the benefit of any expert support in its analysis and when you take the combination of a linearity assumption that doesn't allow you to get into the notion that you can you're just trying to approximate in the truth as you're not trying to approximate this is not a situation where an engineer trying to figure out whether or not you think a product's going to be better or if you if you develop in a preview what we're talking about infringement we're talking about stopping products from coming across the border that's not a situation where you sit there and say well close and i suppose enough for government work that's a situation where the obligation on the other side is to prove that there is infringement and shouldn't do that with anything he did and the commission was required to go to sooner amman's internal data in order to try to make up for that for that missing link and that the other day this court already said that's not an appropriate way to go with the downwardly problem or a debt the purpose of the alongside is the basis on when that's the specific language and so you can if you want to if you're going to do anything you're going to have to incorporate into alongside