before argument begins let me say you're as are all counsel i'm the judges in a difficult position because we can't do visual cues so i'd ask you to listen extra carefully for want to judge starts to speak ok go ahead and start thank you your honor in may it please the court the district court made three main errors i'll jump in by discussing the court's incorrect legal standard and then i'll point out the key factual errors and finally i'll address the youtube link was referenced at some point during the district court proceedings but there's no that was never entered into the evidence of any particular proceeding and it's strictly there for reference if it gives some sense of aluminum can design i don't see how we can take cognizance cognizance of it if it doesn't have a foundation we certainly can't take your dish will notice and that that phrase precise location is not just harmless verbiage it reflects something of errors in few ways st is the standard under nautilus the course is not precise it's a reasonable certainty and the focus on location is wrong because it's not the location of the lower point that matters what matters is the claimed angle of the line now yet the claimed angle depends on the location of the point as the record of this case  does not always affect whether a you know realistically designed can that would meet other elements of that claim would  be uncertain as to and as to the angle of the line being inside or outside the particular claim limitations and i smite i found the record rather  soon on that question both from paul's point of view and your point of view i'm not sure ball actually put in evidence that even though the different methodologies could could produce different angles that it could produce in a realistic world different angle some of which would fall inside and some of which would fall outside the the claim limitations which differ from playing to claim can you a looming eight this issue for me well your honor i agree with the way that you put it that paul did not do that evidence and if i had to try to illuminated i would say that it has to do with the way that frame the issue on summary judgment the question of whether there were different methods for determining the location of the nd point and what effect that might have question that that doctor he or mr hate them didn't use let's say three different methods and they could produce different angles just assume that  i'm interested in the question whether those differences were shown in the record one way or the other to be to have a material bearing on whether a competitor would be infringing or not no your honor they were not accepting your counterfactual hypothetical that the other two methods a finite element analysis and a b really were different methods that a skilled artist in might look to there was no evidence that applying those methods to some particular and real world and would would yield materially different different material differences in the angle with respect to the claims gay from two thousand and eight that you know according to waldheim put the point into slightly different spots but even accepting the whole premise of paul's argument it falls on the point that you raised judge toronto because the two different points posed by paul's counsel yield exactly the same angle and with respect to the a b case it's a similar story where when applied the method that he used in the a v case angle the flexion approach to the feet and at that issue in this case i reached exactly the same result for the claimed angle  a picture to the effect that although it wasn't one of mr hyams message the claim language because it leaves uncertain where the lower point a so called nd point or the transition point that leaves uncertain whether one could use what is something essential at the bottom of the beat and if you use that i think their expert memory it gave me but i believe the ball entered believe the ball entered this portion of its experts non infringement report as part of its reply meaning that the views of  expert was not part of ball motion for summary judgment is wasn't teed up for example the way it was in the if a coast building case where the movin defendant had an expert that put together a whole story about why there were different methods so this came in i think is part of the reply but it really has nothing to do with paul's theory and or the district court's decision which is based entirely on hyams own past testimony reflecting on the testimony that address your honor's concern well enough for now thanks i would like to touch on the question of materiality in the burden of proof continuing on on on what the court just raised  its bald burden here to present something more than hypotheticals and something that matters in the real world and when you look at the indefiniteness cases that played out post not less and even pre nautilus going back to  honeywell what the court looks for is is there is there a showing here that this supposed a difference matters and it has to be that way because not all this left us with this reasonable certainty standard then tell you what's reasonable and what's unreasonable and materiality the concept of whether the difference matters is the way in which to map reasonable certainty onto a particular art in a particular field involving particular patent and that's what chen before you go could you just give me some concrete example of what you think the other side would need to do in a rematch and to establish that honor i mean i suppose i would look to the cases where that was proven successfully and though i know it's a nonpresidential case i found the pacific coast building case to be fairly taking and a good explanation of how an expert would be paul's expert in this case would say well i'm going to take methods i'm going to to assess a certain number of methods i'm going to prove that those methods would have been adopted by skilled artisans or some reason why a skilled artisan would have adopted one of those methods or considered it and i'm going to prove that it makes a difference i'm going to apply it in a real world situation and i don't know it doesn't necessarily have to be infringement materiality can take different forms depending on the issue but i'm going to apply it in a real world situation to a couple of particular places in the record where the materiality of the of this ambiguity and uncertainty the judge rice recognized is quite  heigham calculated the angle in that case at forty five degree using the location that he picked with that test for the lower point he measured exactly the same and in our case below for secondary consideration purposes so he took the same and then he measured it again to try to show that it practiced the claims that were being asserted in it fell within them and those that side i'm a little colorblind today on the phone i guess but if you look on page forty of our brief on the left side is the analysis that he did in the a p case and on the right side is his analysis of exactly the same and in our case  claim it would be a harder argument and i'd get to the nd example i'm going to give you but the same could claim language the very same term cannot be indefinite with respect to one claim in the other because of the particular nuances that you cues product not so much the difference is or isn't material for one claim or another it is that this particular end would infringe under one and not the other it is just is as ambiguous and as your honor was posing the question to  mr murphy you noted that it wasn't just a question of would the accused and infringe in one case versus the other case it was a question of it's it goes to the heart of the public knows requirement that that pervades all the and i agree with that i think that is very clearly not the standard but if it were the case that all canon manufacturers would look at the range of possible methodology is for choosing the lower point and therefore defining the line and say every one of them saw was between thirty five and fifty at that point who cares about the uncertainty for a claim and the the the technology there challenges me but there was a an artificial protein that had to differ from the naturally occurring human one and there were multiple ways to measure that and that and and the patent owner plaintiff's expert showed that at least the way he calculated it would infringe under either in this court found that that did not matter for the very reasons that i was just talking about that there is a notice and the requirement here there is a notice purpose so that those who are trying to design around have some reasonable certainty and in m g m it didn't even matter i would also the other point i would make your honor is i believe in the in the tev a case itself where the range was from between five and nine mega dalton's or micro domes i apologize it was  domes and and there in the supreme court decision and explaining the facts the court noted that on the different test the results would be i think they were sixty seven dollars in about eight but the isn't whether they do in a particular case or even whether they do in a particular product it's whether they can the heaven and tao those opinions on a post not of this post have a supreme court both talk about it might or it could and that that is nowhere near the standard that crown would impose which is that we have to prove that that it actually wouldn't infringe under one but for that your honor i would direct your attention to the specific page of the of the record that your honor pointed out six thousand six hundred and seventy two dollars in the appendix and that is in fact from the infringement report of our expert and it does show that and he caution that he found all these indefinite but but trying as best he could to use the least indefinite or or such on the accused and would put the nd point way down in the bottom very very far below the center panel which does get it below twenty seven dollars degrees get it below thirty degrees so there's even more of the patents are the claims that that are that are asserted here that we would be outside of using the change in angle test and to the extent that when we put several examples of the alternatives in our brief and i mean one finding that page i think it's our brief at page thirty nine where we put sort of four of them there  of those for us i'm sorry some page thirty six of those for the one on the upper right as mr heigham is where he puts it automatically across from the center panel his current test and the one immediately below it is that is our expert mr joe left where he would put it using that the change in geometry test and it's a decided difference i would also know your honor with respect to can it be in invalid for one claim but not another a couple of additional points  for getting back your read every page thirty thinks and the forces are could you identify for me which test is being used for each photo the the one on the upper right is mr heigham across international panel the one below it corresponds to our expert using it in essence a change in direction test although he words  down the left side the only place where you can discern a change in the shape of that cross section is down where he puts the red dot down in the bottom as well as the other the one on the left it those are  are are more for example your honor the one on the left would make it directly across to harmony which which i apologize to the lower one on the left i'm sorry your honor the lower one on the left would take it apart across from the upper portion of the use so if one tried to to to sort of salvage definiteness here by by using the definition of the a or b as as you shaped that's as far as it goes on the inside looking like a you and that would take it across it and the one upper left would sense the entire shape below the blue dot is the cannon wall the st change in direct sion is where the red one is and that gives you a decidedly different range now i you know that's a test that wasn't before the court but that's an implementation of the change in direction court tests that wasn't before the court but it's equally plausible and that's that's what i think judge rice correctly found but what i was going to mention a nd ago your honor is that the same rules apply in settings where there is no accused product examiners have to grapple with them  them post grant review indefiniteness can come up and indefiniteness cannot depend on the on the specifics of a particular and that happens to be accused or frankly an indefinite term could be salvaged by simply picking which claims they want to they want to accuse claim that clinton before that has the angle of forty dollars to forty five dollars is frankly the one that is the most difficult for us to take on under one hundred and three dollars and they know that but but  the prior art is is is loaded with angles that are in the twenty's so that's for all of those reasons your honor one there is no authority that we can see where anyone has ever lost in invalidity challenge as to one claim but not the other simply because of the the range difference between the claims and two if that were to be the law is crown seems to suggest that that really would create a whole lot of fundamental ways in which that indemnity law would would violate the supreme court's emphasis on fair notice and reasonable certainty as to whether one infringes or doesn't  no no no let me understand your argument is if claim fifty four dollars is indefinite then claim fifty also have to be indefinite yes your honor it's the same claim language that is in both narrower range and and is deemed invalid necessarily result in the another claim that has a broader range because just because it's the claimed term itself it's it's not the range that makes it invalid it's the location of the point that makes it invalid is a methodology for determining the bottom point that then gives you the hypothetical line that you measure the slope up to determine whether it's inside or out as i understand the entire purpose of locating the point is that you can determine the angle range right there there's no other purpose to draw it gianluca again i think i was near the end of my time when that last question was posed or things let me just quickly repeat the question to make sure everybody here heard the question the question is what the purpose of the claim limitation for the nd point as i understand it is it's a it's a means  in the claim in other words it's the claim is offering a methodology for determining how do you get to the claimed angle range and there's no other purpose behind the definition of the  point and so i guess what i'm trying to understand is why isn't our focus properly placed on figuring out whether you can reasonably ascertain what the claimed angle is for any product as opposed to more narrowly focusing on what is the most proper and appropriate and precise selection of nd point ok thank you judge and and st the the the lower point is primarily it's here to allow the measurement of the saying well there's no question about that but that but the point i was trying to make your honor is that we now have of record and judge rice recognized that it is it matters with respect to the accused and or the l o f and it matters for claim fifty four dollars for the accused and the proof that someone in the world was contemplating or could have contemplated a change to that and that is on appendix six thousand six hundred and seventy two dollars the one from our expert's report that would take it even farther below twenty but if someone wanted to make that construction i know your expert asserted it but the district court didn't didn't say so and it i guess it seems to me a little bit that there might be some challenge in a savaging that that point actually could come within it since  nothing to the left of that point would really constitute one half of the you that's part of the you shake your honor i i i think that the did i agree that the district court opinion does not specifically call that went out  the district court followed this court's lead in in doubt and in tampa and in amgen where the standard it used was whether it could or it might affect the outcome and it did it more in principle knowing that as an am jim even if nothing before it did it would it take it outside of the range it still said that's enough that in case and other cases it can make a difference same thing with the molecular weight in tempo where they all fail within the five to nine range dischord said it could or it might change it and i think based on what mr heigham lukin can can you point me to where in the district court opinions of the district he concluded that the test is as i said that it could or it might on page i believe it is thirty three dollars of the appendix he said the test may have different results they do not always have the same results there is one additional point that the judge that judge wright's did more specifically rely on and that's the fact that the across from the center panel test that mr heigham uses gives you a different result than the so i think the judge was applying a standard judge wright's was applying a standard that read more like amgen tao and ted a as to whether it in general can affect a critical outcome and given that it could and he had before him situations where it did that would be enough under those cases and it's it would be hard to reconcile requiring more of him as to particulars that an accused and or  hypothetical and someone else was considering making fell within each of the asserted claims that that that would run directly contrary to this court's holding in amgen so i think the judge applied the standard that way so he may not have cited all of the record evidence that was before him the under lied that that conclusion that it could but if this court were to apply the higher standard the harder standard and use this case to change the  that this is in the intrinsic evidence and it's in the evidence for the court an error isn't really a dispute over that he's he drew he calculated them differently i think i'm pretty deeply into overtime so i will conclude and less and less if you your honor based on that based on the standard we would ask you to judge rice did apply the correct standard to this particular question that we've been discussing we would ask you thoughts on it your honor i apologize for not having particularly deep thoughts on amgen because i didn't find it particularly factually analogous and i don't think that there was i didn't see anything in amgen contradicted the basic principles that we're trying to advance here which are that the test is reasonable certainty and that you can't show reasonable certainty unless there is a real world impact of that reasonable certainty there's some material sense and i think there's a lot of indefiniteness cases out there you know including and jen and some of the others that are in the record here where the issue simply wasn't raised or it was already conclusively conceded and so i think made by both counsel about claim fifty four and just generally with regard to the angle deflection method a lot of the discussion that we've had has been accepting the hypothetical premise that a person of ordinary skill in the art would be reasonably or unreasonably certain as to whether to choose hyams method or the angle deflection method if that's the starting point then you can have a discussion about whether there's a material difference there but honor and so at it's just simply not it's not a conceded issue in the slightest and if that's what paul wants to make it's a case about well st of all to sort of promise that summary judgment motion on that and if that's the issue wants to take to trial then then hopefully you know we'll testimony from mr high in the record that with respect to the lower wall angle on the samples that he measured that there is you know a several degree variance manufacturing variance and high never said that can and that was measured and shown in his expert report in the a b case was literally the same can and that was measured in this case in fact it's not because you can tell that on the face of the record the can and the case that in the appendix is prospects and cut in only accused product at this stage in the case yes your honor and do you agree that the lower right hand corner image is  an accurate depiction of the so called change in geometry test i think it's it's meant to reflect mr john last fall's experts use of the change in geometry test i would make the point that when chaim used the change of geometry test he got the same point that shone in the upper right and that's on sixty to fifty to fifty one of the appendix guments today thank you