the art about the scope of the invention there's a lot of that and then there's additional statements from the supreme court in not us that are that are important to keep in mind i think particularly in the scripts that the standard is the supreme court said your problem though is the word talk about a number of these cases but we can go all the way back to that i mean i'm not sure he that you're making the distinction you want to make you want to make when you in race the term licensing they don't have to do with the cheerier mental states knowing neither does they have to do with judgments of various sorts your subjective is is not making it seems to me the distinction on which your probably excludes ted williams but except for ted williams you know that there's lots of objective information about what human eyes can sing and your honor i agree with through the subjective this is a bit of a distraction but where we disagree is that the visually negligible standard is an a known standard and here you have your expert testifying that that there is no technical standard that he knows of and he said you know i just look and if it crosses my threshold th considered it should come after we look at everything else involved in this case and i do think it's critically important so to see the supreme court's guidance that certainty must be viewed in the context of the subject matter of the do to a person it refers to the brightness of the graphical indicators on the page and to the home which in eighty of them so in other words a homogeneous pattern is less intrusive than  particular objective characteristics that are used to understand it and it talks about the size of the dots the size of the state zones that contain those dots the relative size of the dots as compared to the state sounds and  gives will we'll talk about specific inviting us where provides percentages it talks about the shape of the dots themselves the density of the dots how closely packed they are at the pitch and the men in the claim need different things to  know it cannot claim has been the same to all people and that's that the reason that expressed acacia includes these objective criteria is to provide that level of guidance to a person of skill in the  it not only provides them in the abstract in terms of the number of dots the density of dots and these other factors it provides to very specific very concrete examples that are directly linked to visual negligibility it flat out said that to seventy seven but they also inform again and this is why the size of the language not us we look at the claims as a whole so this language in the specification and in the claims as a whole informs the understanding of the person the meaning of this visual individual requirement by providing criteria this is exactly the same situation that is in the i will process if you look at the claims and i will process it talks about a substantially higher elevation well what does that mean that may not be an observation made by a human being but the determination of what is substantially different is a human it could vary from human to human if you take ten people and put them in a room and ask if a particular line is a substantially hi here and i will process the supreme court relied on the fact that substantial elevation was described in the in the patent itself in the specification give two examples exactly like we have here one of them just drive a degree  four degree elevation change and the other describing twelve inch elevation change the supreme court did not limit the claims to those particular elevation changes but this pretty for very clearly said those examples provided exactly the sort of guidance to persons of skill only are so they understand what the front teeth they understand the scope with the reasonable certainty that the supreme court demands and the same is true here now in that case it didn't have even as much detail a process case as we have here because again these examples go into excruciating detail about the size of the states and the ratio of the size of the dot to the states and and this part of it also has again if if we were to go to the extremes of evidence dr sachs testimony is actually much more complex much more involved than that that's about one statement out of it he says very repeatedly that this is a repeatable understandable standard that people are still nor do i understand what this means there is not a number i can attach to it like so many of like almost every claim that exists that i've certainly ever litigated in my life i can't say that actually equal status and therefore it infringes we don't have that situation this is another this was spun up in a deposition after never been raised with an expert who had not even been prepared for this topic because there had never been a dispute both experts in this case from day one agreed that the accused products were visually negligible and there's never been indefiniteness issue raised now not only that their experts testimony in his opening report was that it's easy to figure out how to make  something that is visually negligible you just control the dot size and the and the brightness and we've cited that in our brief to their experts own testimony explaining how to make something visually inevitable it was a well understood concept it's also reflected in the more decision for the more pri context of the priority why is it in the context of the accused products he understands it perfectly well this is an issue that was created for lack of a better where there is no zone of uncertainty such as the supreme court was concerned about in this case this is an issue that has no bearing on any other anything in this case there's never been a dispute about the accused products and there is no dispute like the planet i would think its customers the district court here correctly found the term visually negligible indefinite based on the admitted points that the claim turn visually negligible is subjective and it lacks any sort of objective standard against which to measure that subjective standard now we heard counsel here talk a little bit about the terms objective and that there being some information in th occasion let's be absolutely clear the standard against which this claim is measured is the standard that counsel for science testified to the told the district court and that is that visually negligible means something that is  think your honor is subjective because that might be deafened it if it were functional perhaps it might be definite but the issue here is that the baseline standard against which we're measuring whether or not these dots are sufficiently non visible is from the user's user's point of view and as dr a show science is expert testified there's all sorts of issues that address whether or not a person is going to be able to see th should probably be found in definition i mean whatever else the says this is radically different from aesthetically pleasing that's a matter of taste of preference a value judgment which is inherently subjective in the absolute core meaning of that that case is completely with that case the issue the reason that we talk about this in terms of subjectivity is because the evidence that was developed us as a partner in this record points to how we determine whether or not these dots  are visually negligible and none of the experts have the slightest difficulty in doing that here right the yes because they each said they were applying their own personal opinion in doing the ultimate problem your honor is that so why isn't that your expert in the beginning probably should've gone off a lot sooner but i think the reason that it didn't it didn't get raised as an issue is because the contentions in this case were unfortunately a little that and the issue of whether or not the prior art in this case showed visually negligible dot's just wasn't raised by sonic sports expert intel the rebuttal expert court at the end of july of last year or at the end of june of last year and it was only once that and the there were a lot of issues and many of those issues were joined because that dispute was not identified until the rebuttal report on from sonic's expert that was the first time and he said well these dots maybe those dogs though don't those on the visually he started stating his standard as being well it's for my own personal point of view i'm taking a look at these dots and i think that they're going to i mean if you were asked asked a question like that unless you had been prepared in advance to go and figure out need in the science of human cognition to talk about measurements to which numbers could be attached you would say exactly the same thing it's perfectly clear that's not  interfering with that what else you want me to say you never raised this this before and you might even kind of use the word subjective in a loose in you know imprecise sense a term that can cover a lot of different things from things that have nothing to do set of observations in a deposition which was not even about that subject it's i mean it seems to me it doesn't tell you that there is indeed that he doesn't even tell you that there isn't in fact somewhere in the  literature you know a way of attaching numbers to this let alone whether anybody would need to attach numbers to figure out in any given case whether something was with visually negligible well i think your honor the the problem with that line of thinking is that it assumes that there is a standard and it assumes that that standard can be mapped somewhere if you can can identify the point where dots b go from negligible i can i don't see them to putting information onto a sheet of paper and identify what information you want to demonstrate and what you want to show and what information you want there the user not to notice and you think a person of ordinary skill in the art  printer would benefit from or even in the ordinary course look to some you know the psychological metric that spoke of the properties of the human in deciding whether something is visually negligible or do you think that maybe virtually every printer in the world would look at something and say yeah that's that's a problem or that you know that's not a problem i think i think to answer your question i  don't know the answer to a question but i do know this there's probably a threshold below which everybody in nobody is concerned about dots interfering with other information on the page for example invisible dots it's possible to print dots agree about that well we know on the record that right now we have to experts who took a look at one piece of one critical piece of prior art and one said those dots are not visually negligible only other one said well they clearly are and that is the crux of the issue that was raised that caused this issue to be raised from the court so is it your position that that to the extent experts were disagreeing around the fringes even if everybody could agree as to some central standard universal standard or some reference i could go to that might identify this is the way the eyes work and this is the data that's on a piece of page and this is the level of printing  eyes don't have to clean recognize those dots then i think experts can disagree about whether or not it means that standard but if you've got two experts who come in and say well i think these dots are visually negligible and the other expert comes in and says i think that they're not and the reason that they're saying that they disagree is because well because i think it is visually negligible based on my own perception and then the other expert says well now mine is based on my perception that's not the kind of dispute trouble imagining the printer that's the audience for this patent going out and looking at the highly complicated psychologist literature on psychology and even the right field about the capacities of the human eye as opposed to looking at the things well the here here's what we know based on the record in front of us and that we don't want that information to interfere with the usability the map by our are the people who use the map and sign it is expert in minutes i'd want to take a look at those dots and those dots are not visually negligible well hold on a second if if indeed all that was required of the more inventor was to say oh i want to do is print these dots and look everybody understands how this works this is this is something that's just common sense i can take a look at it th shop should have said look at commonsense they said that they did not want those dots to be seen they obviously printed them at a level that was appropriate and he should have said based on that that stated here then then those that are visually negligible but instead he came in he said look there's all sorts of things here that i'm looking at my personal view of this that affect whether or not i believe this is visually negligible many of those items by the way are not listed in the specification of off things like th court i understand they disagree with that but it's pretty clear if you take a look at the record they fail to raise a timely at the district court they fail to meet this rates were found with very right in the district court to find ways yeah based on the fact that they raised that for the first time an oral argument three months abused her discretion so the issue of the sixty and seventy seven just frankly are in front of this court that being said even if they were from this court or even we were to consider that argument the issue about the additional  density limitations first of all i think sonic sites in its reply brief to halliburton no three which relates to be issue of claim differentiation and what claim differentiation tells us and what that no halliburton tells us is that if we added this additional imitation independent coin the assumption is that it doesn't define the information in the independent way it's a new piece of information so they cited for the wrong purpose but it helps illustrate how those density limitations don't help define objective we bribe sorry visually negligible in this case though those additional limitations and as the expert told us there's lots of different can just considerations when we print so one of them is for example ink and if for example if i were to print a that pattern that was met the density limitations in twenty six hundred seventy seven but i printed it super dark with the intention that everybody would see it do i infringe that point i don't know because the test here and the standard here depends on who is viewing the dots and their subjective view of them are there are personal view of what they think those dots look like something sometimes i find it helpful and i think the most do we most of us do in thinking about whether something is definite is to ask the question how else might they have drafted their claim to a limited to be more definite how do you think they might do that in order to capture their invention why they you know not captured in a way that doesn't trivial and i think they could have done what that sonic's explicitly told the district court they didn't do which was they could specification and then limited the term visually negligible to that example or at least provided some structure within the group within the specification that those orders go in the ark could look to to find thank you just a touch on that last point there's absolutely no evidence that it would be possible to make a pattern that satisfy the requirements of claim sixty and seventy seven that would not be visually negligible that just is not something that's been touched on there's no evidence for or against so so anything we've heard on that us just counsels argument i think it's also really important to understand that there was no disagreement as described by counsel between the experts here again this case doesn't turn on expert testimony earth indexes stop patterns and there's never been a dispute that that that idea of making the pattern visually negligible so it doesn't interfere with the map was part of the more what mr show did testify was that intrusive yet more visually tends to make it visually intrusive he did not say that it couldn't be visually negligible but he did say it could become visually intrusive and that was his concern and that was actually reflected in the second reexamination the testimony of mr cyrus in the printing of visual negligibility was central to the dispute regarding the more in the reexamination dr shows testimony related to that same issue mr angles their expert did not ever say that every one of the more patterns was always going to be visually negligible there was no testimony on that by mr engels he just said the same thing that dr sharp said one more discloses the concept of visually negligible i just wanted nail this down because one of the very most concrete things your friend on the other side of the aisle said was as i heard it there was a pattern that two experts looked at the pattern and they disagreed about whether that pattern is usually negligible is that true or not