i thought i'd start this morning by just quickly introducing the technology and how the five want to dramatically change the industry the technology to related to large format printers which you can think of as an overgrown  the printer and this is an example of one large format print the is actually printed using one of the accused new tech printers using an image but it sponsor one of the experts that like it that retained that he uses for purposes of assessing print quality the prints that go through these these printers are can be up to eight foot wide and indefinite and length and one of the very important features of these printers which is material to understanding the term the form in this case is the pretty gap and the put gap is the distance between the substrate and the print heads and despite the huge size of these predators the print gap is actually one to two millimeters and to put that in context that's about the thickness something to dry them later mr kowtows the inventor of the five want a patent had a need to quickly cure the ink on the substrates because initially he was using textiles fabrics and when you spray the ink on the fabrics it spread it so into the material and indeed solvent printers have the same problem when you spread the ink on the substrates it has a tendency to spread because you're waiting a period of time to cure or if it's a very slick surface that drops i think can actually ball up as well or wic print it'll smear if you put it and after doing a smear it's not substantially cured figure seven b has only one purpose in the patent and the eighty three pattern that sole purpose is to teach you what you cannot do with the invention that's claimed in the eighty three patent would it be the language it uses specifically is that the purpose of seven b is to illustrate that if you go with forty milage rules percentage m if you go with one pass it won't cure the if you doesn't matter how he was estimating the length of the lives lost medical who stating that the jews taking that the diagram i take it as if it were a quantitative the accurate he wasn't he wasn't your honor but he was being asked to do they are not quantitative unless the specifications pacifically sets out what is the length of that why there is no link given for that why the only thing that's given is at the end of that passage you're either at a forty five zero seven out of the two to three after describe that even with thirty passes which nobody would do it sufficient to set the ink but not to cure it that's all figure seven b is for is to tell you that this invention is for setting it's not for substantially curing disadvantage to curing at the outset if you can in other words if you have a sufficient l e d that is a non heat cold u v that you can cure instantaneously there's i'm just sure that you know it vanished setting and then curing later correct what the eighty three patent teaches is it's interested in speed and wants to get these through as quickly as possible right because these manufacturers are interested in getting these thro quickly as possible so by using low energy using setting using u v energy that it's a right level that's the tele days which there's also evidence in the record from mr spencer an expert in the field gentlemen who do these actually help them if you had high energy at the outset but you can do it justice fast and you can get the print through just as fast and you've got it completely cured why isn't that just as good or better well you know that's what mr  going to spray the eco on we're going to try to freeze it as ocean and then we'll still cure it later they hadn't gotten to the point they didn't recognise defamation issues they didn't recognise the advantages of colby they didn't recognise that it would be helpful to substantially cure the  it never gets anywhere near that judge perry recognized well that's that's part of my question and that's why reading and scones too i guess figure twelve but reading column stacks so the point at the end of the lines that paragraph beginning on fifty five let's say talks about think you're twelve and it does so tell me why i'm misreading that's it ends it concludes by saying is cured with the curing stations so that curing station that appears in figure twelve what is three hundred the carrying station again there are no dimensions given for up or down stream that is there just showing that you can connect an apparatus a second curing station if you want to but it's a two step process it set and then there's some period of for that substrate which is thirty two advances a little bit further and that is cure and so comparing maps of the i guess so having a little trouble here costs comparing that to the advantages of substantially curing a under the burning station it was a two step process use l e d s to set which is forty two wanted forty two two and then you have a second step you have a second curing station it's more expensive that's another where you curate three hundred that's exactly what column six discusses and specifies your own the language is subsequently cured with the curing station three hundred the talks about that it's set by radiation sources forty to one dish forty to two i mean a lot of lines that the seven hundred fifty eight and then subsequently later it's cured using a separate curing station it's showing just a different place where you can put the secondary curing station inexplicably on summary judgment got it wrong the district court held that a level of subjectivity is required in order to determine what the four means in the context of the five one a patent and to understand a form the only issue here is he and deuced defamation that is when you have to have a high energy lamp that that is not cold you be what happens as it imparts enough energy on the substrate that the substrate can distort disfigure such that it rises up and can strike the print head as remember we have a one to two millimeter gap so that's the issue is he can do stuff or mation it doesn't have anything to do with factors that the district court relied on and looking at whether print quality was subjective or not judge perry was a very good judge but she got a little confused here she said well factors such as the lighting and size and the amount of text the amount of manage image and the color have some subjective components therefore reform is indefinite didn't do stuff or mission has nothing to do with any of these factors it only has to do with whether or not the substrate is going to rise up in the print head or whether or not you're going to have to move that print head up high or higher so if you have insufficient quality  so that it has an effect on print quality that an expert could detect the former judge because if you if you have you always when we turn these lights on if the piece of paper here is going to change it's going to absorb some energy there's always some measurable change the issue is whether or not that print gap is exceeded such that you strike the print head or you don't always have to have a head strike with you when you get the operators out there in the field mutex operators of their printers what happens is the operators start seeing temporary defamation where the heat is causing it to rise and then raise that print head above that zone and then you get a degradation of print quality such that it's unacceptable if you raise it up to four or five millimeters you end up with expressing all over and you end up with along with a loose not even we're looking at these from the distance you're looking at this point from you don't look at these from five or ten or eighteen inches away no and in fact what's interesting about these substrates is they're not perfectly engineer they're not flat they vary by an acceptable print quality where you end up with an acceptable print quality so if you increase that gap to more than two millimeters as reciting the five one eight atoms such that not you now you've created a situation where you've got exploring all over the place and you have insufficient quality or you have a head strike or burning no acceptable quality it's not subjective it's subjective and if you get into the print quality issues that even a judge perry got confused about and looked at people of ordinary skill and they are use objective standards to look at print quality  they used benchmarks more typically than anything else would you check does and they testified mr currier testified to they have a print that they put on the wall when their their printers are ready to ship they check the quality to make sure that there are there are acceptable quality that print the print they compare that to next to one another it's a benchmark test it's not subjective it's merely objective it's the same thing with respect to what people do in the field and this was testified to by mr whipple one of their technical experts mutex technical experts where he said that standard test prints are used by operators in the field that are pre buy engineering marketing and the like to make sure that the prints the come out are acceptable quality and i take it that there's not one single standard and we did to give you an example or rather pedestrian example from the past i remember a time when printers would produce the quality of of print of that of a word processing system that was not good enough to file in court was good enough to use for draft and we would regard that as acceptable for one purpose but not for another i assume in the much more sophisticated world that we now want have it that there are differences in print quality in which you would say that print is good enough to sell and street market but it's not good enough to sell to people to hang in their homes and so forth which is i think where judge perry was going with the notion that there isn't a single standard except ability absolutely if you're a print house if you're a photo house depending on that customer who walks in your door they're going to show you what they want what they need and if you're able to produce that acceptable quality with this printer without having a head strike using cold  without having to back it off that meets the criteria of what judge perry came up with but the problem is then that that becomes if not surely subjective at least subject to a wide range of possible interpretation depending on the demands of the  situation each situation may be slightly different but that printer is going to know whether he's going to be able to sell that product or not and that customer's going to know whether or not they can purchase that product and under this court and judge price and judge procedure both ruled on this data m high that it either strikes the print head that's really where you you go back to the that objective test if that's the test and then i suppose depending on where the red head goes you know you have a hard and fast test but if it's less haven't had structure you back it off then yes you're getting into into that that is if you say that it even if you have distortion as long as you keep the the head low enough that it doesn't matter how much distortion short of hitting the head you're still going to have exactly the same print quality that's correct that's correct it's on the record that you're going to have ok we're going to have acceptable print quality that's right acceptable could but not it may be the finest point when i'm really asking is is there a that the record of eight to one eight marrying i asked him does d three represent a cure of about seventy five to eighty percent and his answer was yes so he wasn't talking about the line length i want to put but that on the record right directly above that i asked him whether that eighty percent was cured to a great extent and he said no which judge perry found to be just not just not correct that eighty percent in her definition which is the definition of leg for for substantial cure was cured to a great extent that the eight to three patent clearly taught that there was curing to a great extent in that there was at least an eight percent here but judge perry went beyond that judge perry also looked at  columns five and six that in the record a one two four three and recognize that this set energy that's been talked about was that said energy when this carriage is moving back and forth five feet per the pattern recognizes that with multiple passes you don't get a linear addition of the doses so even at that slow bad speed at ten inches per second and you're delivering two hundred forty militarily on each pass that isn't the same as having twelve hundred mil isn't a complete cure because of the non linear humility of impact but that's not the issue here the issue here isn't whether the eight to thirty three patent teaches a complete cure of the printed the issue is whether there is a cure to the great extent and it does that ellen piece experts admitted that dr whittle testified to that in the district court relied upon that that there was a substantial cure in that it was cured to a great extent illustrated in the patent now ellen p as disclosed in a prior art reference it doesn't make it any less anticipatory even if it's later disparaged and we have a clear disclosure here a column five and six a quantitative disclosure of the amount of energy that's being delivered  was substantially true that in and then we have even a judge across pointed out in column six we have a recognition that the l b s themselves can be used to cure and or middle of the column minds thirty two they talk about other features of l e d s but it seems to me that when you get into the rest of the remainder of column six you're moving on to something else to the curing station and there's no fear the rip through the reference to the early days the references to the radiation sources and the radiation sources identified in this patent are the l e d s or xenon flash tubes curing station which is depicted as being a larger than the sources on the side and the only radiation source is identified for doing that curing the l e d s or the xenon flash tubes that are disclosed in the so i not i'm not arguing that that we're relying on station thirty research station three hundred for the complete sure that's not the issue it's whether or not those multiple passes of the l d d's that are on the sides of the carriage create a shirt to a great extent  same energy doesn't substantially cure just doesn't make any mathematical sense and moreover the five when a patent recognizes that in the very first line of the path even in the abstract it says that apple can solution is to deliver enough energy to partially cure and then you can add heat and shear further downstream that's exactly what they also told the patent trademark office they said that the claims of the president ventured were limited that's in the record at eighty three seventy four which which states applicant solution is to apply a low dose of u v energy of the print head which is enough to at least partially cure the ink so as to prevent motion of the dots so  we have undisputed evidence that the eighty three patent ph is a cure to a great extent of the print head and that is the only element that ellen p disputes is not present in the eighty three patent and the district court found there was no that would have to be a result that's correct has also made the argument that the l e d's in the eighty three patent or the other news at the time of the intervention weren't strong enough but their their only evidence on that point was mr spencer's report where he looked and they only di i don't know if it to for that device was two hundred ninety nine years and i know these are very minute shinn measurements it's very important that even that's that the wavelength that's required to cure this type of ink which is identified in the two three patent isn't close to that as far as the spectrum of multiple passes right but you can do it as quickly presume you can do it and get back to my my question which may not be necessary to resolving this case but it's necessary to to for me to understand how all the pieces fit together here it looks to me like can you tell me if i'm barking up the wrong tree here but it looks to me like what happened is the a twenty three is there that uses this two point system because it couldn't effect quickly efficiently and and for all purposes a cure hang right out of the box so it has a two stage process they perhaps because the ladies got better in the meantime have a way to get substantial curing early in the process is that what's really going on is that the difference between the two technologies we think you think there is a that that is one of the differences in the technologies but we believe that and i'm sorry but it's not on the pill but we have i'm keeping question if we're done with lisa which is that you raise in your brief clip certain claim construction issues and it's hard for me at least so you can tell me if i'm wrong just see why under any circumstances we were at least for instance a substantially c claim construct question since at least in context of anticipation your position is that you went under are either that's correct and the reason that we appealed that of course it was our only chance to do so and if you were to reverse the not really before the queen construction issues are truly before us i agree well with regard to the this idea that defamation has to be such that you have a head strike that's not at all  that exact one to two millimeter head height regardless of whether the source surface is contoured or not i could teach just printing on contoured surfaces and so it's no thermal defamation at all any of the surface whether it's contoured or not that's what the fi when it was teaching so but i maintain that the clear and convincing evidence and what the district court found that there was no genuine issue of fact is that they two or three patent fully anticipates these  elop he doesn't even argue want to feel that those those claims are not taught by techs other prior are out in the three five five and as the district court found there is ample motivation to combine the three five five with the eight to three because it's the same inventors working on the same machine column five that's talking about what you would need in order to set me at different speeds it doesn't do anything with respect to substantially cure the interesting thing is that  they've disclosed a a way to achieve the same energy level that you employ to substantially cure they've disclosed substantial they haven't done that your honor what the ok now tell me it doesn't but it doesn't teach to go that way it's only goal is to say not to cure but it does disclose multiple passes and it does disclose slow speed you know if you put those two together you get over the eight hundred  yard i don't know i don't know that that would that's a question of fact i can't tell you that you would end up with eight hundred or not the patent doesn't tell you that there's not clear convincing evidence in this patent you'll get eight hundred milage wills the question with respect to fifty watts was directly contradicted by by mr spencer and it was mr whittles calculations it was extremes of calculations telling you what this would do to contradict the intrinsic evidence of the two three patent that it's only to set and not to cure i don't know that that if you take two hundred forty milledge will at the slowest speed using an l e d what will happen and it doesn't tell you that because this teaches a completely different direction it's telling you that you're trying to set not to cure this patent figure seven  it's a completely different direction but that strikes me as i'm having a hard time with that concept because they're both heading in the same direction one of them is heading there faster than one of them used to heading there with a l d system that and down and it ranges from i r u v it ranges from u v to through the visible all the way up i are and what they had in the industry was ahead he can do stuff from asian problems and when ellen p entered the market with its gold u v printer if you check one out this is in the record and retrofit it every single printer that they had with cold u v lamps if they two three that taught them how to fix a problem they didn't even know how to do it there's not clear convincing evidence from the record that this that teaches setting a full the full deposition before me but he specifically said before that that is on that one page that's on the record that it's not substantially cure and then they said well go seventy five eighty percent down you don't think that substantially cured you can't poll that we discussed or already the quantitative value of that why it's disputed mr bill says well i mean that's not quite what he was asked and not quite what he said he said he he he didn't say well the line looks like it's seventy five percent down to the bottom and said this there are they can determine whether or not there's and he can do stuff from asian such that there's an acceptable quality and if for some reason this court concludes that that definition isn't appropriate it's not a basis to invalidate of the patent rather to be remanded back to the think invalidated the asserted claims with respect to anticipation slash obviousness between and she said i mean that had her words right but i i was a little confused about the way the indefiniteness rulings overlapped or perhaps extended beyond the scope of the invalidity on the asserted claims was she saying that indefiniteness applies to every with respect to the asserted claims but not something that goes beyond the scope of the