court my name's john triggs along with my partner right let me represent lear on the appeal here this morning i have two things up cover one will be the disclaimer issue and second the measuring issue let me jump right to this disclaimer issue because obviously i think i think it's the most important and interesting aspect of the case the argument that we're making to do it to you today requires context that's the first thing whatever there's a disclaimer when you first read that single sentence that says negates by itself you're not sure what it means but when you work your way through the file history and you start at the beginning of where that comes from i think you begin to see the possibility for at least three different interpretations for that statement one of which i think is the most likely so where do you begin you begin with the examiners rejection of the examiners rejection is interesting because if you study oh it isn't what you quickly i think determined at the examiners probably got it wrong when he says the probe or the single point problem or point is on the outside of the device that is i would submit and the applicant thought not correct when you look at some you know you will see that he's talking about that single point of information that probe the i think located internally in that air chamber because it's somehow able to regulate and speed we don't know how we don't know why it's really quite undisclosed and the applicant if you look at the file history pointed that out and says look when since i'm not very clear about what this thing is or even where it's located but i believe it's internal it's internal to the device that leads him to make the statement that's claimed to be disclaimer and i think the important thing here to remember about that statement is it's subject to a lot of different possibilities but one that i think is most likely is th what he's telling the examiner did in the past and to during prosecution they reflected radiation reflect the radiation and not reflected and direct radiation yes and no your honor three those claims one play one by the way never chase the new claims five to twenty and those two independent claims five and fourteen all talk about only reflected radiation those are the planes that have that were those are the claims that are added and that's a mistake i would submit the trial judge made a low by importing the conversation with the patent office about claims by through twenty in the claims one and three  if you have a disavow us to one or more claims but not all of them doesn't that doesn't that have negative implication on your on your quibble and argument it doesn't affect the entire pound for purposes of of my argument if you look at what happened with plane one and three and it's very interesting when he gets the rejection and he makes the statement we've all been talking about what does he do it does not and then claim one it never change what he does what he does is he imports limitations from claim one to claim three and what they basically are are multiple points external to the device so that needs it i think i understand one of the things he could have been telling the examiner i'm not telling you his statement was clear or what it means is clear but certainly the most logical one is what he's telling the examiner is a single point inside the air chamber cannot provide relative value because it only provides you with a single piece of information that doesn't practice the art the argue or the invention the novelty is the ability to take a series of values and make a relatively relativity judgment about what's the darkest spot in the room once you know that you process that data you have an algorithm and you know what you need to know to basically kill that dark spot don't you do that and isn't the point of the invention here that it's using reflected radiation and that's what you used to get over the prior art of oh and then those two statements that you brought up on my colleague brought up the other those are those are the key distinctions here that oh isn't doesn't measure reflected radiation right and i don't disagree with that it doesn't measure but remember i think we pointed this out throughout the papers that that doesn't mean you can't have other radiation hitting that single point or in the pa multiple points of information because that direct light is your correct of no consequence all that counts here is the ability with your microprocessor to determine that value or reflected radiation you don't care and this also slides into the claim differentiation argument because you've got claims that talk about only receiving reflected radiation that's five through twenty and you've got claims one in three that you entered and depended claims that talk about think got a patent was that you disclaimed any kind of measurement of total radiation and your improvement was that it received only reflected radiation which is what gets you the great measurements for going to the dark corners but if that's a disclaimer then that's where we have an equivalent the problem isn't you know because i disagree with your own respectfully on that point you're you're mixing terms measuring is one thing receiving is another if the direct light doesn't tell you anything about reflectivity and the darkest area of the room the fact that it hits that probe it's that point of information is irrelevant to the calculation the like repast of processor takes can take all of that and does into account you can't practice this invention without somehow determining what your reflected radiation is for all these multiple points of information and there was no disclaimer here and if you think about how claim three was amended after  rejection he doesn't change anything he just adds what he tries to tell the salmon or is wrong with ovington multiple points xterm notes of the device that's what he adds that mirrors claim one and that is not disclaimer he did not overcome that rejection by disclaiming anything and i think you have to have to understand if you start off with a question from the examiner that displayed he's got the thing in the wrong spot and you've got this ever changing environment in their tunnel and that doesn't tell us much about anything in terms of this device which is all about external points of information so i would i would argue i'm arguing that that is not disclaime and i think it's i think you almost underscores this lack of disclaimer when you see all of the discussion and his ability to say only only receives reflected radiation in all the commentary as he's describing and discussi the office activist and his response to this rejection to claims five and twenty you because they do incorporate like you're making the distinction between receiving radiation and measuring radiation and really what we're talking about here is measuring radiation correct yet that's the critical function absolutely and all you care about your top you don't care in this device what the direct radiation is that doesn't tell you anything you have to determine a way to measure to assemble the data that you get from these photo in a way that tells you water what the reflected radiation quantity is for all of these various points and then that process or tell you ok that tells me that's the darkest and here's the algorithm and this is what we need now to irradiate it with so you're right receiving and measuring are different and the claims make that very clear in five and twenty when they talk about only receiving the reflective radiation the disavowing prosecution was true of measuring radiation we know your honor i think it's receiving we never no one's ever argued that you don't measure the reflected radiation you have to you have to figure that out if you don't do that this this doesn't work if it's not the pat you must figure out what the reflected radiation is there was no disclaimer of that the argument is that it's been because of the reliance not only it was not with the reflector radiation but with the emitted radiation the direct radiation i'm sorry i didn't hear the question it seems to me that the that the disavowed during prosecution was not asked to measure reflected radiation but to whether it actually also measured emitted radiation no your honor i don't think i don't think anyone can argue that i think the argument has always been that simply the receipt of direct radiation was enough to put put the disclaimer in place because you were receiving direct radiation that's always been what the fight is about and that's why receiving reflected in the first two parts of that it can i think you just said the point of this was it only measured reflected radiation at the end of the day that's why the well isn't that the just ignore it we don't make an attempt to you don't have to measure it all you care about is quantifying that restrictive light there's lots of ways as we point out this goes to the measurement concept as well as lots of ways you can perform this device you can have a fixed number for directed to subjects to track it out you can ignore direct you can do anything you want but at the end of the day yes you have to measure reflected radiation but the fight has always been if you claim one of three we determine that receives less is a fight on the mark when you receive direct and indirect by definition that is not what it means you can only receive reflected radiation that's what the court ruled and that they i think the error comes because all of the language that you quote comes from the discussion of five and twenty where that was a different set of claims so yes we receive direct but no you must measure indirect that's the critical factor here how you get there is a multiple number of ways but at the end of the day if you don't know that number you're right you can't practice this invention the difference is explained by the twenty i don't get any direct still not clear what you're saying measure doesn't used doesn't use it at all that's the key here it's because it doesn't provide you with any data that tells you anything about the dark a spot in the room that's why you do it that way if you don't do that it doesn't work let me quickly turn to the second argument i make about the claim construction which is the measurement one ok and that's pretty and that's a short one your honor i think it's very straightforward our position on that is webster's dictionary is not a good place to begin for a definition involving a scientific instrument the best place to start is the specification and the specification repeatedly talks about data what is data here well you've got to die iow get hit with light light is energy it generates energy that generates voltage  voltage doesn't tell you anything except it's voltage you got to have a processor it takes that information it processes it and ultimately comes up with the dogs for the dark the spot in the room but it's not what they would suggest this is about data and this is about determining the quantity of bad data so that the microprocessor can use it it's that simple using webster's dictionary definition was simply inappropriate under the circumstances so what those two reasons i would a good morning your honor course i'm here as a pointis that was accused of infringement and for us the issue is notice notice for the claimed notice in the prosecution history on this equivalence point the equivalence point there is clearly disclaimer if we look at the specification the specification has that disclaimer in it it says we rely on measurements  claims that talk about receiving only reflected radiation that amendment does seem a little bit fuzzy to me about whether they were disclaiming receiving direct radiation in the earlier ones first precisely the issue isn't about receiving the claims that have only seen only a lot of them don't have that measuring step so if a sensor receives only reflected radiation of course it's going to measure reflected radiation has been felt it receives a sensor that receives all types of radiation can't discern which type of radiation it measures there's no way that i can sit here and say i get light from that wall some of the thirty seven percent of it is reflected and thirty eight percent of it is direct that's impossible  sensor that's why when i said receive only it basically eliminated the need to measure because that's all the step is taken care of when there are other claims particular claim three talks about the device which is identical to the always in reference identical and it says it receives reflects the radiation that means you can receive direct as well but there's another limitation and that limitation is measuring the reflected radiation and that's something that has never been done by my clients device has never been pointed  relevant because the invention as it's described in the spec has nothing to do with direct radiation the prosecution history of course tells us it's critical measuring refractory nation is critical novel and unique to the a and designed around it would so it seems in the amount of direct radiation received i'm not sure it even makes any difference to the functioning but it is the disclaimer language that troubles me and i have a hard time seeing how the disclaimer language is necessarily all that clear because it doesn't seem to talk specifically only in some of those claims about receiving only reflected radiation and the receiving only reflected radiation claims certainly we don't do that and they've really haven't argued equivalent to that as they can't because it added on with regards to the claim but then you have this measurement claim something must be done to measure i e much and i understand exactly what you're saying but what i don't understand is if we assume for lay claim three were doesn't take only receiving reflector radiation  could receive both and it measures only the reflected how i did it seems to me you have to have a disclaimer to get around in the quiver of these problems for your claim here because it describe it doesn't say it can't receive that and yours may measure both but there could be an argument that measuring both particularly when your device probably doesn't measure very much direct is equivalent to claim  if i can separate those the disclaimer the prosecution history talked about a mixture of direct and reflective radiation which negates the ability to perform with the pad to claim to are all about mitt maybe i can simplify it do you think that you have don't think that there has been any presentation of a quid one's position that isn't clearly within the statements that were made in the prosecution history when they make statements in the prosecution history that use of measurement of total radiation negates the ability to do what this patent was all about the things that they told the patent office were critical novel and the reason why there's been a delivery here is the fact that we measure total radiation takes us out of any generic equivalents argument on appeal they've made these types of arguments well ok well that's now we're not no longer talking about the generic equivalents argument of  just measuring total radiation we're talking about something about how it operates more specifically and things along those lines those arguments weren't raised following the reason because the reason is the director contradicts so in the general sense of the broad sense they've lost that broad sense of equivalence whether it's through disclaimer in the prosecution history whether it's through a disclaimer in the specification or whether it's through claim vitiate because in that claim three there is that step that requires measuring reflective radiation does the disavowed in her or the two devices substantially different your honor i'm glad you asked that because i think that any play down down below down below the limit or argued that oh the i p t device ninety nine percent of the light that's received is reflected therefore it's equivalent to their experts not once but twice recanted those opinions because he said he was wrong the only evidence down below is that there's about an equal amount of reflected and direct radiation that is received and measured as total radiation so there's a reason why my clients device operates the way it does it's not it's not pertinent to the arguments that were made below so it wasn't addressed completely but we what we do is we have a device it's plugged into the wall and has a number of light light bulbs you can see bulbs around it more than can be powered by the plug into the wall it's got a battery onboard couples the power in the key for for our device is a fission use of that power  e want to use that power around the device in the most uniform way possible that's what our sensors do they measure the output of the lights of course are going to be some reflected in there but that gives you a sense of where the device is located they talk about using measured radiation to assure sterilisation effect of mass we use the sensors to ensure efficient use of our our available power around the device so going to the side would cry the claims require measuring reflective radiation and many of the claims require making determinations based on that calculation we don't we don't do that at all your honor the our device is turned off after a pre determined number that you're measuring out what you just said that the efficiency of your devices that you're keeping track of the output how do you keep trac measuring or not i'm sorry we are measuring total radiation the output includes reflective radiation we're measuring all that we're measuring the output just like oh it's and we're not measuring reflective radiation we're not measuring what little we're told the patent office their invention was all about in order to get that claim it was about sterilizing the back of a chair that you couldn't see and that's why it had to measure reflective radiation to determine the fact of this of the back of that  chair when when we got into this case and obviously started looking at it we look through specification the claims the prosecution history every single one of those items informs this decision and that is measuring reflective radiation and the pad key very clearly and clearly and unmistakably the mixture meaning total radiation what we do negates the ability to determine sterilization we look at what evidence is there the evidence that was presented to the district court in equivalence is nothing like what was presented in the appeal but what was presented in the appeal brief was interesting they said well your devices tend make determinations to find out what the reflected character of the light maybe they're experts so that impacts in a deposition but then he also admitted later on in that same to position that there is no baseline that would allow such a determination the district court of value or that testimony and said it doesn't matter how the device might be constructed or changed or evaluated by an expert what matters is what the device does and the device doesn't measure reflective radiation and doesn't do anything that would be the equivalent of that if you address the same construction issue as trish levy your program jargon meant regarding the importation of a negative limitation into the recording your honor the the importation of the negative limitation is present in the specification it's present in the prosecution history it is a way to understand and explain what reflected radiation is and the reason why was important in the district court and a lot of this record hasn't come up but you heard mr trichet little bit talking about indirect radiation he's now going to third type of radiation here that isn't anywhere in the record because he's trying to argue something the claim is not the the fact is is that reflective radiation have to come off of the items in a room it can come off of the device itself whether that is done through the negative limitation is one way to do it another way to do it would have been to to write the claim construction more it would be longer be more confusing but you have to you have to define that reflected radiation has to come from items in a room not from the device itself it's it your respective whether it is it reflects off of the device it's still considered direct radiation it doesn't it's have to be reflected off of a certain area and then negative ones limitation was intended to add clarity to the definition just turning quickly to the measurement issue that was raised by counsel for the winner the district court criticizes the district court for relying on a dictionary definition if we look through the district court analysis she starts off with the claims she starts off going through the claims and understanding what measures means in the context of the claims and measures means quantify in fact when we are given an agreed that various other limitations of the claims in that quantity then she went on to the specification then she went on to the prosecution history she did not simply oh there's a definition from a dictionary let's take that rely upon it the analysis is quite contrary but can work our way through this and i'm all i'm going to do down i don't normally do this in an argument i'm going to read to you from the file history because this is what happened below after the examiner said it's on the outside of the box and that's where our govern the rotational speed of the fan it is a listen to this claim three has been amended requiring that the device receive quote reflected ultraviolet radiation from multiple points directed away and is reflected back while over in sin measures radiation that is imparted to the air within his device to quote to the degree that the location of the program be understood it is measuring radiation from the u v tubes to air that is pulled through the did abide by the pan there is no indication that u v radiation reflected from an area surrounding the device is received or measured by that pro