cancellation and substantial cancellation of acoustic feedback in a digital hearing today that uses a programmable filter in a feedback loop exactly as recited in claim nineteen of the eight fifty pat patent discloses cancellation and substantial cancellation of acoustic feedback anticipations of fact issue we had a lot of testimony saying reduction would not be substantial that's correct your honor but here you can't find a substantial reduction is missing from the graphic pat unless you but given this primus a should case of anticipation the burden of lack of enablement should have shifted to e g but a trial and even in their red brief the chichi has refused to embrace this burd fifty places in the graphic patent they disclosed and claimed cancellation and substantial cancellation of acoustic feedback under impacts labs and its related case law once the sation and would not have substantially cancelled the jury found parent me that that was the case now how do we how do you know that well your honor under the impact impacts last days and the proper inquiry and the required testimony from mr madison should have been directed to what a person of ordinary skill in the art would have encountered in trying to make and use the the claimed invention of claim nineteen in white of a graphic patent he provided no testimony whatsoever in the trial about what a person in the art would have encountered what difficulties they would have found with the grounds a patent and what information they would have known of themselves as they address the issue so the burden clearly shifted from anticipate from a showing of anticipation the fact that mr madsen argued that the efficacy of the hearing aid the performance of the hearing aid was not what it could have been they begs the question in the to the jury or to the court on the critical issue as was the case an impact slab of what a person of for near east skill in the art would have would have done why is it a question of whether the news disclosure of a substantial of stansell is not defined in the eight fifty patent there was no testimony on what constitutes substantial so if you have a cancellation which is arguably  hundred percent substantial reduction and if you have substantial cancellation as founding claim fifty six which must be less than one hundred percent the question becomes why does the reference not teach  substantial reduction when substantial reduction you would argue would be less than one hundred percent or west and substantial cancellation so the argument that madsen used was a very  facial argument to say that the that the hearing aid purportedly would not work well but the when it also pointed out that he doesn't test a signal that goes through a transmission channel well your controller of figure one both ground k and the existent have programmed the hearing aid for the acoustic feedback in order to do this you have to provide some type of test signal that is propagated chichi brown admitted that he never considered the prior art all he considered was what he knew about the art of hearing aids but he admitted he never considered the prior art he did not consider any of the art that was addressed by mr madison because he stated that it was not his job to do that because mr madison was the validity expert why in this case right on point with hughes versus the united states you remember that and equivalence case involving the satellite shown yes exactly and that the only difference was that the technology advances and they could put the programmable feature in matter instance on the satellite instead of keeping it in houston well and isn't that exactly what happened here technology advances all the good now with the chip on the he aring aid rather than having it separate and that was found to substantiate the doctrine of equivalence in use to the rate of a billion dollars and you remember that case right and it was a very important case but there are two fundamental differences your honor between the use case and what we have here first of all with the grab a hose controller if you will use for the identification mode is actually part of the hearing  white figures one and figures two where they separate the hose controller from the hearing aid in the a fifty pad actually what was done and used it was separated but as technology advances they could put it onto the satellite  how you would recalculate the coefficients used for the substantial reduction whatever that means of the acoustic feedback that the hearing aid exhibits when it's in the ear of the where you need to characterize that acoustic feedback path that is done during the fitting process in addition there was testimony from the inventor and others your honor that the technology of the elements filters that are in the excuse devices that was well known at the time of the filing of the package so it was not a waiter developed technology situation is churn you've done two minutes into your brother's time or i asked for my brother's time to be place those are not issues about what profit discloses raffi disclose is for sure cancelling feedback we have forty or more sites that say it canceled so the question they're saying is it doesn't work well it doesn't doesn't disclose substantial cancellation notice feedback they can argue that it doesn't over and over their same what the circuit that dropped that discloses doesn't work in fact instead their expert says it works it does reduce feedback it  flaws in the circuitry as they point out there's nothing in the record to say that one of ordinary skill could not use a disclosure of drop a along with his own personal knowledge and build the hearing aid that's including nineteen and come back to the question is this a question of fact enabled is a question of law and we think this case if we look at it from anticipation we think it is a question of fact for sure but no reasonable jury could take it not anticipated the only way you c find that this substantial reduction is missing grabbing is if you find it's not enable and enablement is an issue of law and there's no testimony in the question of whether they put in the evidence to overcome ministry ultimate issue of law but there are factual issues that are need to be put forth for example the re one experimentation factors those are the issues that they should have put in but they did  me just turn if i if i do have a moment to to this issue to claim construction and the word programmed into context of program filter it's our position that a program filter is not limited  to setting or fixing the coefficients during normal operation than it is but there is a violation of the written description requirement to just the patent does not teach anything other than two different modes or programming it to them to have been calculated during the fitting process and they want them to have been calculated from an xterm ill post control or none of those things to reside in the claim the quote the context of the work program in the claims thirteen fourteen and nin transmission channel and in nineteen it's to affect substantial reduction of acoustic feed the definition the court gave a being provided with values to achieve a response is exactly the right definition it should have been applied and was applied now they also argue it is a correct claim construction is there a problem with their recent description providing for now here are there was a sense of testimony by both parties in the trial and again written description of the question of fact to be reviewed for substantial evidence there was the testimony of the inventor who described how he conceived of the idea of keeping the supposed controller connected to the hearing aids while the user was wearing it there's a  is what a person of ordinary skill in the art in one thousand nine hundred six understand at the hearing it or hose controller could be connected during normal operation answer yes in fact many of my customers were doing this building their breadboard first or describes connecting the supposed controller to create the coefficients all describe both fixed and adaptive determination of acoustic feedback so we believe that given this standard of review there's substantial evidence to support the  description finding from the jury is the data to feed this flues use the same for this are two different techniques of filtering used for two different to accomplish two different things well there's a number of different filtering going on in this paddlers filtering for purposes of hearing loss there's filtering for purposes of noise reduction there's filtering for room reverberation filtering for feedback cancellation and we believe the testimony was that for all of those kinds of filtering there's a disclosure of doing so adaptively and i also forgot to mention there's a third the declaration of dr eric dowling that came into evidence and he testified in through a declaration that was submitted that there was also some written i mean where is it in the well is this disclosure is first you look at column one which says that the patent relates to hearing aids of the character that are capable of automatically adjusting to on goes all the way through the line fifty five describes one example of how you come up with the feedback cancellation coefficients notably in around line thirty seven it says that you've got the  hose controller cook hooked up to the hearing aid in line thirty seven it's a programmable phase shift or thirty m programmable amplifier thirty two are then adjusted by the computer to minimize the sum of the acoustic and electrical feedback signals of the computer throughout this whole process in this example and yes it was contemplated that eventually as technology advance through miniaturization and other advances you would be able to take the host controller and put it in a side pocket or wherever for the person to where and that's exactly to judge for chief judge raters point that's what happened here the functionality described in this pad for the host controller is now all built into the hearing aid due to the size of chips so there's the element algorithm arguably doesn't exact same rejected their argument based on the testimony of three different people of very skilled the our dr levitt the inventor mr brown our expert in the third expert so called third expert dr dowling who's declaration came into given all that claiming to be they used grouty as a way to try to limit the doctrinal problems for thirteen fourteen and sixteen but they didn't do their job under wilson sporting goods the burden is actually on them to present a hypothetical pointing and demonstrate how the hypothetical claim would have been to supported by grouting the testimony from their expert was very cursory and when he was asked on cross examination did you do a claim by does not take any attention to the amplifier in determining the coefficients and that's an important point so in a hearing aid you've got a microphone you've got an amplification system for transmission channel and you've got a speaker and grab explicitly says in his disclosure which is an eight to thirteen column two in the parameter identification mode the amplifier is decoupled from the microphone a speaker programmed to provide substantial reduction of acoustic feedback as recited in flame nineteen in clay nineteen the transmission channel is connected to the microphone in the speaker so you're trying to calculate what is the feedback and so given that testimony we don't need to worry about the function way result test because there is of that sifts of stansell evidence to support the verdict using that analysis but that mr brown also did the function when else and he gave his opinion giving all three problems so if we think there is leaking testimony in the sites or in our brief for both the determining step and the inserting step in claims thirteen fourteen to sixteen and the program so for it for example the testimony of mr brown on the determining stuff is that a seven twenty nine when he's asked what is your understanding of what ellen this algorithm is and that the part of the accused a vice that we say is equivalent to doing the determining step she describes that it is a routine to look at the coherence between the output and the input in determining where there is a signal present iterate to a final solution which closely  coefficients into the filter and their board by sets a new filter electrical filter response and he said quote in electrical terms we considered that inserting and felt so even if there was a requirement that there be some sort of physical reasoning on the seven forty nine shouldn't there in rome something done with the damages award well first of all your honor we believe this is another issue as we say in the brief that they waive because they did not ask the trial and in june of two thousand and eleven to do that they first asked for something to be changed here on appeal second there is substantial evidence to support the award under a lump sum analysis the their argument the experts argue that a lump sum was the appropriate measure of damages and that's what the jury awarded in a lump sum analysis you it's really not meant as an porton when the patents expire just what would be the total amount i would be willing to pay in the relevant time frame wh thousand and one or two thousand and two to compensate the patent the for all of the damage the difference of a couple of months between the expiration dates would not have been significant in a lump sum analysis which is what their their experts argue and we also argue that they figure three where is in the patent itself it's separate figures in separate descriptions so we submit that the description requirement is not satisfied but even if yes even if you could you could make that argument   thank you thank you ok so we have to ignore what you the manufacturer in the accused products here are either in taiwan or denmark outside the country so you have one step of each one of these methods claims where your step is performed outside the us and for that reason there should be no infringement either literally