good morning everyone historically the case this morning is number sixteen twenty seven zero one sequence performance of products against tot mom's manufacturing corporation mr cooper intrinsic evidence here is throughout the specifications for the specification i doubt so the issue here becomes what's this operating point is that an average shark position is it's an average the board concluded that the average is a preferred embodiment it's not th that their product has the exact same averaging that we do in our product and they're there at their own witnesses their engineers identify the same thing that's the point is this not and this is the way we have that in the record well that's an issue here with with respect i fear it's not in this record obviously it's in the concurrent but but you said speculation it's not speculation both sides agree the why and all i'm saying is the construction here this is a very specific issue here what's the definition of this operating right right the point behind pablo theory is simple all we were just trying to raise with that judge wallach is that that's the why behind the clean construction why it makes sense to have average and why and also that was from an inventive stop standpoint here so in other words i identified that this averaging valuation isn't just some simple thing that's you know it's a minor difference from the prior art of the prior art had just one reading from the break control signal problem is if you have only one reading and like a pothole or think of a bumpy road if you're in the southwest in a pickup truck in your trailer and you're going to  through the background in the specification it seems that the point is the the fact that it's automatic so i mean why isn't it reasonable to say that you made it automatic but you covered both multiple readings and single readings sure so the specification itself identifies throughout when so that when the question is what's the specifications say about this operating point each and every time if it's raised it's identified as an average so for example the definition comes out on column six starting at line forty nine your honor what it says is that the microcontroller implements an algorithm using the stored average value ok that our position is that's the b fact that it's done automatically without manual intervention now that's not the only point of novelty there's actually a lot in here so for example in that accident of the invention that's column one line twenty four to your point the senses some prior operate control units have also included a processor for receiving a great control signal from an accelerometer that's one signal that's the point there's more than and it goes on to talk about how that single point can be made it is manual there's a manual requirement when you set up the operation of this what we're talking about here is during the operation of the brake control unit itself in other words when you're in the real world conditions you're braking what happens here what happens before braking what happens during the braking about that background of the invention talking about the manual versus automatic it's either factory calibration or the sat up in other words when the user is actually in the aftermarket installing distance of the unit so that it automatically levels each and every time versus a manual it's not getting to the question though at heart here which is what is this operating for and so in other words the specification here so we look at it what's this operating point right each and every time it raises it as an average so for example column six starting on line forty nine identifies that this microcontroller implements an algorithm using a stored average value i want to stop there the next thing if you look at that it identifies and parents out of holes i before prefer a belly and then a talks about the preferred points algorithm creates what one value that's the real one for example that's the single average of a great point average ultimately end up with a number right what it then says your honor if you keep reading there that same sentence you're coming out of it says that it goes to the next sentence this reference awful so it refers back to the last sentence write them out that demonstrates which reference level which is that rolling average and then it goes on to say this reference level or that rolling average i the operating point which defines that's definitional i e that is so operating point is the reference level ok so what's the reference level it's that rolling average not only is it there though your honour's it's for other places in the specification reference points that was established during the averaging algorithm see there it is again referencing point reference one of the it doesn't say that that's one way to set it no it's the that's my point on or it's the only way in the specification there is no other way and that's the difference between out there on the lot of limitations in this preferred environment but you don't read all of them and none in fact i don't we don't want a specific you're right we don't want to specific number of readers that's actually a violation of the actually read some limitations from the preferred environment and not the question so it goes back to that same reference level the very next term says i the operating point the operating point here that's being claimed and claim one is that position is that it would be interpreted differently under the r i then under the impactive objective really correct legal construction yes our position is this is a legal issue not a factual one because of that intrinsic so in other words looking at the specification it is clear that the broadest of the key term reasonable interpretation here is the only one that keeps showing up in the specification which is averaging that the operating point is derived from that averaging fundamentally here all i'm saying is that the specification here clearly in its four corners identifies each and every time this operating point a reference level structure mally identified in this back as some sort of average that is short answer is no to that judge well and here's why so the institution is partially granted partially denied some of the claims actually work tonight as well the issue here was that the ford identified this period of time they would have to actually clarify their construction and add more to their construction if they were going to you this as something that would be instantaneous or or cover one time so why didn't you have now i mean that's exactly the same circumstances that we don't see the fundamental problem though is this that what we said was to the board is that if you're good if you're not going to follow the standard here for determining claim construction of properly under that period of time if you're going to say one single thank you your honor may please may please the court the board explained very thoroughly and clearly how the clean language specification file history of this the intrinsic evidence supported its interpretation of automatically acquiring an operating automatically acquiring an operating point of the or a control signal the board found at the operating point of the break level signal is that value before breaking occurs and then the break level signal is what happens during breaking so there's a temp operating point is a point of the brain control signal what does that mean well if it's the language itself your honor means the claim language itself is operating point which really means nothing more than the point at which the level at which this thing whatever this thing might be is operating and here the bor said temporarily this is the level at which it's operating prior to breaking event then you get a breaking event and now it's as a comparison between the values it's getting during breaking against the compares the new values which are different because there's deceleration presumably and compares those deceleration values to what it determined was the operating point prior to braking so it's all coming from the same source in the board patent doesn't define the reference level to be an average the patent introduces the entire environment as a preferred environment talks about it as one embodiment there's no id signal saying th the claim should be limited to the single embody misspend when it the patentee is very clear that it is just a preferred embodiment and in fact as the board pointed out there is another referenced operating point in a different operation which is they disclosed in the specification that they go to the in the factory that they they compensate accelerometer by accelerometer basis they set up a compensation factor and they do that by leveling i've been tempted to turn this around so you come in and say you're somebody who just uses one reference and the question is infringement i've got to think you would be standing here arguing that that this that there is no infringement because it's patent only discloses one type of mechanism for setting the reference while i would lose that argument if that was the argument i was making because that's not what this court has said i mean this court has said just because there is one embodiment you do not define the claim to be limited to the single preferred environment and the board pointed out that operating point as i was saying in column six after  describing how this calibration occurs the patent says in this is a column six line three when the offset is compensated in this position the output i e the operating point of the amplifier is two point five volts so there's an example the board said where an operating point is referring to a single value not a calculated average and it's also an example where an operating point is developed without use of a microprocessor which the board said   in that example which is just a single value not an average and not microprocessor driven so that the boards interpretation of operating point is more consistent with each of the references to operating point as that is that term is so that it was necessary distinguished i'm not sure i can say is not part of the rationale i don't believe the board relied on robinson and c to make that distinction we certainly rely on the single values that robin output is operating and it compares that baseline to the values that it receives during a breaking of that good let me take you and then to the pothole theory which and i don't want is not based upon extensive evidence but upon scientific fact what's your response to that the response is that the pothole theory is not recognized at all in the specification or the togetherness there is no reference to that issue whatsoever that was a construct of extrinsic evidence introduced by sequence experts it's not intrinsic evidence and in this case flaws this court where  where you have found that a single embodiment could be definitional it's because in the in those specifications there is at least a strong implication of the definition and for instance that there would be a language we do an average and we're better than the prior art because the prior art doesn't address the populace you if that's in the specification i've got a problem because the specification is talking about the possible theory and and giving some  maybe this really isn't average but that is that whole analysis is purely extrinsic evidence there's another point i would like to make which is there is a threshold instance of evidence that they say that i don't understand in the context of this patent that it's important that the device deals with potholes it's not something they said they were attempting to address what they say  the specification they were attempting to address is overcoming the fact that when someone installs a prior art brake controller they have to manually level it and that's the only thing they were trying to fix they were not trying to fix populus so whether potholes are a big problem or a little problem or make it work a little worse or better is irrelevant to this patent because that's not the issue they were trying to address and so there's nothing in the intrinsic record to support it i have to point out that there's threshold level decision here that this court has to make this construction was waived by sequence the level they never asked the p tab to find that reference level should be defined as a stored expressly refused to say what type of calculation the pete had quoted but if you look at appendix page four hundred four which is the transcript from the oral argument sequence argues starting at about the line for you have to chuck really you have to do something with that break control signal to create an operating point as you can tell i'm avoiding because we're in the middle of an infringement here saying what that means but i'll be more than happy to tell a jury yeah you know a rolling average is an operating point so they're willing to tell a jury that a rolling average is an operating point but they were unwilling to tell the p tab that the p tab had to limit the claim to a stored average and that's because they made a tactical decision that the p tab if they didn't want to be held to a stored average well t j well that was page four zero four in the appendix your honor starting at line for so they have to live with that tactical decision that they made this this court reviews claim construction de novo for sure but it is still a review it is not the court of first resort and by failing to raise the stored average construction that they now advance to this court before the p tab they wait this construction have found if they if they have really weighed it why was it p to have felt the need to to amend their own construction to make sure that they didn't include it well because construction to basically refute what because they asked me to have for a different construction on these claim terms i'm not saying they weren't arguing about this claim phrase this was the claim phrase that was argued but they want different interpretation they didn't want to be held to a stored average they wanted a broader interpretation some calculation undefined was the definition that they wanted the p tab to to resolve they never told the that the that this level was defined to be stored average p tab was not presented with that argument we argued that there was no definition requiring any kind of calculation sequin never told p t i have that it had to find that the the specification defines an operating point as a stored average they refused to take that position specifically the the what they wanted t this is found in the appendix this is from patent owners response at page two fourteen in the appendix after trying to construe the p tabs construction they then said well if we're wrong with this construction here's what we'd like you to say the revised construction should make clear that the operating point were first to quote a value representing an accelerometer output over a length of time other than during a break from event that nowhere within it asks for a construction that there is a stored average or that the operating point has to be restored average if you compare that to the construction that they're asking this court to g well they think clearly said that it has to be a calculation in other words they describe the term acquire as more than just a passing thing right right and they think and so when you're talking about  time that implies more than one value it doesn't apply more than one value but my point is here they're asking this court according to their reply argument at page two the court should therefore construe the operating point of the brake control signal to mean the stored average value of the accelerometer output that is compared to the brake control signal after the brake pedal of the towing vehicle is depressed that's different than what they asked the p to have they've altered the proposed construction in there to this court's precedent in the broad common conoco cases that we cited in in our principal brief you cannot alter an asked for a new construction on appeal that you didn't present below i think you might be our union a distinction without a difference but anyway more you know you did say that this has been calculated over a length of time but but it is true you never actually use the brains and that has to do with the rolling average i did actually it's the next page for mr brown stopped that appendix for four it's actually been about explorer five so that the question was asked by one of the judges there when i said back yeah so if we absolutely have to include here whether or not there's two or more values yes your honor the construction if we fact that the board at the very end of that oral argument was raising the fact that they were looking to scrap a claim construction blew me away i mean that's the honest truth i mean that that was a big issue for us it was a very big surprise for us at that point that we're going to be potentially looking at a different instruction i gave in and said look around to go there has to be two or more points if we need some sort of definition here that's what the specification says that's what period of time means so at that time that's what my concern is lower the due process type issue of are we talking about some sort of different claim construction here if that's the case we want to go back and be able to do things like if you don't agree with that averaging being for example in the claim we want to have the right then to be clear an amendment through the reason is is this is a good invention here are th small town it's a concert good engineers that worked at something that was very different than what was out there including what was in robinson and to be hyper linguistic here about what this claim term means when it's clear from the specification every time there's five different times  first two this averaging was just that wrong so one way or another just what we wanted was a right to be clear about what our invention was and how it was differentiable from ahmanson not only that robinson exists exemplified in that background of the invention judger mally it's specific identifies again and that background some prior our control units also included a processor for receiving a brake control signal that's rob and that's all the prior art out there we were distinguishing from that making clear we were average we were doing something different and something better that was the point here and all we're saying here i was surprised at that moment in time and that hearing that that was going to be a potential here was a completely different construction and i wanted to make sure if that happens that's why we're here asking in the alternative for remain we can go back and utilize the rules if we absolutely have to i actually think a claim to my client thinks a claim construction here surrounding a single point in average point is dead wrong based on the specification but if this court thinks that that's an appropriate instruction we want at least to remain an end of a case to be allowed the right to be clear about what operating point means in light of the specification and be given the opportunity to be clear here how we differentiate because we do going back to it just a couple points about this reference point of reference level it's an average going on to talk about the word prefer a gun to my type of preferred environment to me means ten readings or some specific number of readings when we say average that's not a preferred body and that's the broadest reasonable just like p p c broadband with the term around is around and circle does it also mean in close proximity to a lot of dictionary communal but in the light of that specification in that case that only men and circling we have no difference here one final point about  about your scientific fact absolutely it's scientific fact very simple you know it's real world physics right physics one hundred one and there is feigning ignorance if you think otherwise here's the reason why if you hit a pothole right if you hit a divot when you're off roading you will get under robinson and that prior art you're going to get a false read you will not break if you hit a bump you'll get a false read you will wrongly break when you shouldn't be that's the issue there is that make sense that is a scientific fact we don't need expert sit around telling you that it's just the truth with that that's all we have we ask that this court construe this claim turn correctly reversed the board's decision regarding anticipation obvious and on those grounds or in the alternative re man to allow us to go back make clear what operating point is allow us the right to a man under the rules under the law and give my client the right to identify what exactly this invention is clearly that separate and different from the prior art thank you