report my name is greg stillman and i'm here today in florida atlantic university and amin associates asking the court to reverse an order of summary judgment was entered based upon the trial court so running a conclusion that the three eighty five patent lacks structural support for the function of recognizing the number of lines in an incoming signal by any standard review whether that standard be novel or whether it be based upon a review of findings of fact that are clearly erroneous we believe the truck or its ruling was an error i'd like to think there are any extent that she found that the patent did not disclose an actual counter that incremented on the age thing can reset on the b s inc yes i think that would be a finding of fact and wouldn't fact you know at the end of the day i really do believe that the principal error made by the trial court in this case was a finding that because the word counter was not included not of line thirty that somehow the patent lack this is means but function yes and everybody agrees on there's some back and forth about the function but it seems to be pretty clear that the function is recognized right actually i don't think there's any disagreement that the function is simply recognizing the lines of incoming video signal without being told ok so the only issue before us is whether auto line number thirty which is the structure you agree you agree that that's the structure and agree and whether or not that structure  box with a black line around it and a number is the structure i am and then again you're also agreed that the term itself on a line number is not something is not a term that one of art instance a understand as corresponding to sound particularized structure that term taken in isolation an absolutely i would agree with that but obviously you have to look at the patten as a whole and understand that there is in fact structure that except an incoming video signal there is also structure that separates the singing from the a thing which the only reason for doing that would be to count it as even though the other converter ever invented but it discloses a method of converting an incoming video signal that was more efficient by virtue of the fact that it did not have to rely upon a fully stored frame it began it actually processing the information and you know from reading briefs and incoming video signal presents itself in lines of digital information and depending upon its source whether that source some variation there off so the first thing that any scan timber not just dr glenn's going converter has to do is to recognize how many lines are being presented to be converted and it's undisputed that there's various ways to do that and there are various ways to to do that yes but there is only one way that is disclosed in this pack the novel aspect of dr glynn's was  read the district court saying that everyone agrees that the intrinsic evidence doesn't tell it to you we have to go outside intrinsic records and and see if there's any expert testimony that might be able to provide and shed some light on the meaning here and then concluded that your expert had testified that there were multiple ways of doing it counter timer in the end whether it's a counter whether it's a time or you're ultimately trying to achieve a count right of the lines but but in the end it could be done as your expert said by account or by time or and so now the district court seemed to feel like it was stuck with that kind of testimony and and then wasn't going to let the expert come back for  purposes and say oh it's really just a counter so i guess the point is from the district court perspective i can understand it concerns that the claim was being perhaps treated like a nose was read one way for infringement read another way for  y and what's the response that that's an excellent point and in many respects that question goes to the very heart of the arab drug court who committed and in fact i think pertains to your earlier question under one twelve six which is a matter for ultimately for the jury as to alternative ways that one could go out recognizing the number of lines so for purposes of proving infringement obviously we're entitled derives from block thirty right that is it's quite a stretch to say that the substantive structure which would then since is talked about the clock in title the patent the two equivalent the where did the courts go wrong yet let's look at what the evidence was in front of the judge with respect to the persons of ordinary skill in the art and how they understood this back both there is evidence in this record novel i'm going to read of what you do it because i saw other testimony from the other side's expert that says there's something in there that counts and i understand that because at bottom you're trying to figure out what  of language you have no language to call that anything and then if we go back to the testimony of the martin hearing that had to do with claim construction and was not having to do with infringement at all your you've got you've got then pers at the front porch or back porch of a horizontal scanline in that that those are a lot of options well remember that auto on thirty is structured as performing more than simply the function for recognizing the number of line so when he's talking about the fact that other line number thirty includes is essentially a digital state machine he's talking about more than the structure that is in all the line thirty four essentially performing the function of recognizing the number of lines and that's an important point because although i'm thirty does a lot going on in a line thirty if you read this patent and the suggestion that auto on thirty is anything more than a counter with respect to performing the function  recognizing the number of lines is not supported by this record let me let me go on with respect to your question judging because i think it's an important one and that is what does their expert actually say first of all he says can we go back to what your expert says and you know the martin hearing it could be done for example by counting it could be done for example by timing and that's and here's the point that's different from saying what patton in fact disclose what he was saying in the context of that hearing was explaining to a verb how this isn't a tutorial this was not a hearing in which words gusting the issue of invalidity or indefinite as well as trying to understand how they think signals work when they go and get that and are aligned you numbered accurately but there is a difference between saying this is how it could be done versus how it is in fact done in this pattern and that's what he was doing in this reader in responding in fact to a question from the judge during the martin hearing said this he said the patent doesn't use the word count but because the nature of the signal that is coming through sync separator twenty four remember there is no reason to separate these signals unless you are going to count them the way the pad is designed you have to perform that count as an active duty and this is done to remember works you know i'm not altogether sure i would think it would work by based on you figure out the time between the vertical frame of this and then you would figure out the time between two individuals horizontal i think both and i then knowing those two numbers you could divide out and figure out the number of people exactly but sooner or later it would be the timer and that wouldn't be the same thing as using a counter well but cider lady would be using the eight and paul and anything for us but sooner or later you would have to count i what we're suggesting to you that this record shows that the only testimony if you look at the declaration dr byrne hers and when he was demanding his declaration in opposition to the motion for summary judgment on the question of indefinite he was quite clear as to how the patent work the confusion that occurred occurred during the mark maturing into tauriel where the expert was talking about how you could do certain things for purposes of variety of tools available to us to determine how many lines there are right in during the mark when hearing there was an issue about whether or not we were going to construe the claim as deriving versus you know the district court did correctly hold their patents really five years indefinite as a matter of law the problem of the think the colloquy this morning is made clear is very simple the claim to find a court means for recognizing the number of lines in the input format but the that you could do for hundreds that's exactly what's mysterious about is which particular structure is supposed to be used to perform with indeed the agreed upon function which is to recognize the number of line which as judge chen points out the experts ultimately agree includes a count in the sense of identifying the number but the whole problem is if a complete mystery based on the specification as to what the structure of the device is th recognizing the number of lives by being told is a passive function which would be true for example a digital standard the first packet of information that comes through will have literally the number written on it effectively and the device will just read that number and the point here was that the pattern contemplated a device that one of the function of actually actively identifying that number that's what was meant by the term counting but no point and here's the critical point of the stick to mean plus function claim would identify as the way to recognize the number of watts that's the point dr a reader never said anything like that to the contrary in that same colloquy the court itself referring back to again to dr von hertz and who had said not only could it be performed by a counter and a timer and etc he also said it could be a digital state machine and the court then says a doctor reader well can it be a disk of a little computer and he says it's an element that counts yes so he's all he's recognizing that the yes there has to be a structure that performs the function of counting in the sense of recognizing the numbers arriving at a county judge champlin but in the point is dr reader say here's the structure that but the problem is we are doing a means plus function claim as of course the president had repeatedly said it is insufficient for the claim to say there are no ways of doing this experts will figure that out i'm just planing all of the way to doing that that's this court's out there which have exactly the same method of presentation is a box but it's a line around it uses this is the next step it's conducted in this or conducted computer controlled and what's described much of the time isn't much more it says that it's an eleven twenty five line read it isn't completely devoid of description not all wrong and there are things that are described in the patent but with this know i'm not sure where the clock is coming from but if anything your honor has just underscored the whole problem here which is none of their experts say that it is only a clock that your experts there it's a black box and there's nothing described there that's the whole cost but you can say clock it doesn't say counter it doesn't say digital state machine all of that is expert testimony which i agree nobody is saying that there's been a possible for an expert to figure out a way to control the pressure i wasn't nothing interesting nothing new this court said the patent wasn't definite because it didn't specify the structure the particular structure that was contemplated for accomplishing that function what if it said here is that if it said counter you would have a different evidence reading it or you would have the kind of evidentiary inquiry and the kind of analysis that this could apply to me as three case you would have the experts join and say do i know what a counter is all the experts know what a counter is counter being used here in a noun form of a description that it's something that counts or does it mean this counter thing that all experts can go on the shelf and pull off the counter and we all know what a counter looks like you would have that kind of a battle joined and the court would result that the reasons she gave she's absolutely right and i want to add one other reason that she's right beyond the reason that she specified which is an important concession made this morning which was that the resolution of the of the wrecker by the district applied and you have a simple failure proof there is no evidence that everybody agrees that there's one particular structure that's referred to the specifications but if you view the court's analysis of the evidence as factual  findings like my adversary suggested you should this morning then the case is even easier because there's no way you can find it to be clearly erroneous given the fact the standard is whether there's some stansell evidence supporting it dr reed or says there's not nothing known to persons in the art skilled person skilled in the art as to what an odd line number thirty is the inventor had no idea dr von hurdzan aspects of explicitly stated there can be a multiple different things understand audible is a notice function required notice policy underlying all of that law requires particularly with respect to means plus function claim if you just say patent a means for doing something you can claim all the means possible in the world and other potential innovators down the road will have no idea whether their new device fits within the scope of the claims pattern that's why this court has or at this point decades now insisted upon rigid adherence to the and i think the real question coming up here is when all of the experts on all sides really did not see this is a problem but there is and they were there because anybody would has to identify with sufficient particularity the structure for accomplishing the function and they have the burden on appeal i mean if anything then they did i mean that there's a multiple problems here but among them is the fact that they wait for this argument that  is their obligation to identify the one particular structure that is in the specification and if it's a clock or a timer if that's the same thing with a clock or a counter or a digital state machine then this court case and this court said the fact that you can have experts come in and agree there's multiple different ways to gauge and control the pressure isn't enough because of the means plus function claims it is incumbent upon the patent to identify the particular structure for may please the court collectively i think all of the questions the panel has asked counsel today i think informed what this decision needs to be based fine we are not suggesting that the evidence  below was simply that the experts could somehow figure out what kind of structure is and at the evidence below is that both of these experts person skilled in the art of this patent testified that this one sketchy line well as you know from from the court precedents all of these things have to be interpreted and used in the light of the testimony of one skilled in the art to be sure  if i were left to my own devices to interpret some of the patterns that i try on a daily basis i'd be in big trouble so we have to rely upon the testimony of those killed in the art counsel just said to you that neither expert was able to identify the particular structure i would encourage you to look at the appendix seven sixty six seven seventy six through a book eight thirteen where dr reader talked about a specific in the whole section so he begins with the proposition that that he fully arguing that to the extent that we would find or that the court would find that the patent actually dispose of that structure and  let me close by asking you to look at the language in the teller for your case the figures of the seven six three packed and show the controller circuit as a black box however the absence of internal circuitry in the written description does not automatically render the claim indefinite here the expert testified that a person of ordinary skill would know how to interpret the specifications and actually build a circuit therefore the ary skill would not understand the disclosure can anyone really say based upon this record that neither of these experts understood that the function of recognizing the lines in an