Trials@uspto.gov
`571-272-7822
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`Paper No. 20
`Entered: May 18, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`EIZO CORPORATION,
`Petitioner,
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`v.
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`BARCO N.V.,
`Patent Owner.
`____________
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`Case IPR2014-00358
`Patent RE43,707 E
`____________
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`Held: April 1, 2015
`____________
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`BEFORE: KALYAN K. DESHPANDE, JAMES B. ARPIN,
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`and DAVID C. McKONE, Administrative Patent Judges.
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`The above-entitled matter came on for hearing on Wednesday,
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`April 1, 2015, commencing at 1:03 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia
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`571-272-7822
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`
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`Paper No. 20
`Entered: May 18, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EIZO CORPORATION,
`Petitioner,
`
`v.
`
`BARCO N.V.,
`Patent Owner.
`____________
`
`Case IPR2014-00358
`Patent RE43,707 E
`____________
`
`Held: April 1, 2015
`____________
`
`
`
`
`BEFORE: KALYAN K. DESHPANDE, JAMES B. ARPIN,
`
`and DAVID C. McKONE, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Wednesday,
`
`April 1, 2015, commencing at 1:03 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia
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`MARC K. WEINSTEIN, ESQUIRE
`Quinn, Emanuel, Urquhart & Sullivan, LLP
`NBF Hibiya Bldg., 25F, 1-1-7
`Uchisaiwai-cho
`Chiyoda-ku, Tokyo 100-0011, Japan
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`Case IPR2014-00358
`Patent RE43,707 E
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF PATENT OWNER:
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`KERRY HARTMAN, ESQUIRE
`Hartman Patents, PLLC
`3399 Flint Hill Place
`Woodbridge, Virginia 22192
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`JEFFREY C. MORGAN, ESQUIRE
`Barnes & Thornburg, LLP
`3475 Piedmont Road, N.E., Suite 1700
`Atlanta, Georgia 30305-3327
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`JUDGE DESHPANDE: Good afternoon, everybody. This
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`afternoon we have our hearing for IPR2014-00358, Eizo Corporation
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`versus Barco N.V. I'm Judge Deshpande and as you can see, we have
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`Judge Arpin and Judge McKone remotely from Denver and Detroit.
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`One Denver, one Detroit. I'll let you guess as to who is who. As you
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`can see, we have remote judges, everything needs to be spoken into
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`the microphone at the center podium. So let's go ahead and have our
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`appearances, but please step up to the center podium to announce
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`yourself.
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`MR. WEINSTEIN: This is Mark Weinstein of Quinn
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`Emanuel on behalf of Petitioner, Eizo Corporation.
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`MR. HARTMAN: Kerry Hartman on behalf of Patent
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`Owner, Barco N.V.
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`MR. MORGAN: Jeff Morgan on behalf of Barco N.V.
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`JUDGE DESHPANDE: Let me just confirm with our
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`remote judges that they have heard everything and they can hear
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`everything going forward. Judge Arpin, did you have any trouble
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`with the sound?
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`JUDGE ARPIN: No, I did not.
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`JUDGE DESHPANDE: Judge McKone?
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`JUDGE McKONE: No, I did not. Can you hear me okay?
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`JUDGE DESHPANDE: Excellent. We can hear you just
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`fine. We set forth the procedure for today's hearing in our trial
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`hearing order but just to confirm, I'm going to go ahead and go
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`through that just quickly. As the Petitioner bears the burden of proof,
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`so the Petitioner will have the first opportunity to present arguments.
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`Petitioner, you may allocate your time as you see fit, and
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`you can reserve time for rebuttal. After you have completed your
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`arguments, Patent Owner, you'll have a chance to respond. Both sides
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`have 30 minutes total for each side.
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`Let me just also remind you to not interrupt each other when
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`you are speaking. If you object to any demonstrative or argument,
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`you may present that as so during your time for argument. But do not
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`interrupt opposing counsel at any moment in time.
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`Do you have any questions as to today's procedure?
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`MR. HARTMAN: No, sir.
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`MR. WEINSTEIN: No, sir.
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`JUDGE DESHPANDE: No questions, then we'll go ahead
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`and proceed. Petitioner, you may present your argument first.
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`MR. WEINSTEIN: Thank you, Your Honor. I have a copy
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`of the presentation, if that would be helpful.
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`JUDGE DESHPANDE: Yes, please. Also, as a reminder,
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`when we are going through exhibits, carefully articulate which
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`demonstrative, what slide you are on or paper number or column
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`number, so that our remote judges, who don't have it in front of them
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`on the screen, that they know where we are.
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`MR. WEINSTEIN: Understood. I apologize, I wasn't able
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`to get my presentation working up on the display. So we'll just be
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`working from the paper copies. Again, I'm Mark Weinstein of Quinn
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`Emanuel. I'm here on behalf of Petitioner, Eizo Corporation. Today
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`we are here to discuss two issues with respect to IPR2014-00358.
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`The first issue is whether the Kamada reference teaches the
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`limitation that the tolerance level varies for pixels of a display. And
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`the second issue is whether or not the Petition was timely. As has
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`already been explained in the Petition, the grant decision and in
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`Petitioner's Reply, the answer to both of those questions is
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`affirmative, and I'll explain that further in more detail in my
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`presentation.
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`First, turning to slide Petitioner's DX3, there is a brief
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`overview of the '707 patent. The '707 patent is a reissue of U.S. patent
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`number 7,639,849, and that patent issued on December 29, 2009, just
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`before the two-year date. The patent owner filed a broadening reissue
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`on December 28, 2011, and that broadening reissue issued as the
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`reissued '707 patent on October 2, 2012.
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`It reissued with all original claims 1 to 37 intact and
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`unchanged and with new broadened claims 38 to 115. Among those
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`broadened claims are the four claims that are the subject of this IPR,
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`that includes independent claim 101 and dependent claims 102 to 104.
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`Turning to slide DX4, there's a brief overview of the
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`Kamada reference. The Kamada reference is a published U.S. patent
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`application that was filed on May 11, 2004, making the Kamada
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`reference prior art under 102(e).
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`Turning now to slide DX5, just a summary of the first issue
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`that I'm going to address that Kamada does, in fact, teach that the
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`tolerance level varies among the pixels of the display, as recited in
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`claim 101 of the reissued '707 patent.
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`On the next slide, DX6, is a reproduction of claim 101, and,
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`as you can see in the slide, the very last limitation is a limitation at
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`issue here “wherein the tolerance level varies among pixels of the
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`display.” You can also see independent claim 101 in Exhibit 1001 at
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`column 38, lines 22 to 34.
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`Skipping ahead to slide DX8, there are multiple ways in
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`which Kamada teaches that the tolerance level varies among the pixels
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`of the display. What you see here in this slide is from paragraph 5 of
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`Exhibit 1004, the Kamada reference, and it describes a couple of
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`different types of frame uneven appearances or uneven appearances.
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`One of them is the frame uneven appearance in which there is display
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`unevenness around the periphery of the display and also describes a
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`shot uneven appearance in which there is a display uneven appearance
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`that has a rectangular shape and appears anywhere on the screen or the
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`display.
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`And by teaching that the displays can have different types of
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`uneven appearances in different locations on the display, Kamada, in
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`fact, teaches that the tolerance level necessarily varies among the
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`pixels of the display.
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`JUDGE ARPIN: Counselor, looking back at your slide
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`DX6, is it necessary for the tolerance level to vary among all the
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`pixels?
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`MR. WEINSTEIN: That's not how I read it. As long as it
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`varies among pixels, any of the pixels of the display, then it would
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`meet the limitation.
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`JUDGE ARPIN: So the tolerance level can be different for
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`different pixels?
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`MR. WEINSTEIN: Exactly.
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`JUDGE ARPIN: Thank you. Please proceed.
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`JUDGE McKONE: I have a question on DX8. What you
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`have shown here is some description that shows that the
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`characteristics of a display can vary, but how does that show that a
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`tolerance level varies?
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`MR. WEINSTEIN: It shows that the tolerance level varies
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`because there is -- if pixels, some pixels have an uneven appearance
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`and some pixels do not have an uneven appearance, then the tolerance
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`level is different between those pixels. In other words, the tolerance
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`level for pixels that have an uneven appearance is different than the
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`tolerance level for pixels that do not have an uneven appearance.
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`JUDGE McKONE: How are you defining tolerance level?
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`MR. WEINSTEIN: It's the perception of the pixel. It was
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`not a limitation that was defined by either party. So it's been given
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`just the broadest reasonable interpretation. We've interpreted
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`tolerance level with that broadest reasonable interpretation to mean
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`that just any different appearance or effect of a pixel.
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`JUDGE McKONE: So if the pixel looks different, then it
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`has a different tolerance level than a different pixel?
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`MR. WEINSTEIN: If it has different characteristics, for
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`example, different uneven appearances, if it has the -- just the
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`different -- yeah, I would say the different appearance of the pixel.
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`JUDGE McKONE: Okay.
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`MR. WEINSTEIN: Turning to slide DX9, this slide shows
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`an excerpt from paragraph 45 of the Kamada reference, Exhibit 1004,
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`as well as Figure 2. And what this paragraph describes and shows in
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`Figure 2 is having different correction levels for different parts of the
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`display.
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`If you look at Figure 2, you see that there's a rectangular
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`portion in which a constant correction K is applied, and then in a
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`surrounding region around that rectangular region, there's a decreasing
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`correction, more specifically a linear decrease from zero, a correction
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`for that surrounding region and then no correction at all for the pixels
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`outside of that surrounding region.
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`I would also note that in paragraph 69 --
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`JUDGE ARPIN: Counselor, before you go on to
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`paragraph 69, I have two questions. Going back to your DX8 slide,
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`you talk about a frame uneven appearance and a shot uneven
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`appearance. Does paragraph 45 refer to one or both of those?
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`MR. WEINSTEIN: It can refer to any type of uneven
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`appearance. Because it actually refers to a rectangular correction, it is
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`generally directed at the shot uneven appearance, but this type of
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`correction is not specifically limited to any type of uneven
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`appearance.
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`JUDGE ARPIN: My second question goes to the area
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`outside of, I guess it would be, W1. You said there's no correction
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`there. Is it no correction or is there simply a zero correction? And
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`does it matter?
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`MR. WEINSTEIN: Your Honor, I'm not sure I understand
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`the distinction between zero correction and no correction.
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`JUDGE ARPIN: I'm asking you if the tolerance is some
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`value within the block defined by X1-Y1, X2-Y2, and then it's
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`decreasing in the realm of W1 and then again is constant outside that,
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`although constant at zero, is that what you are saying or are you
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`saying that there is no correction beyond W1?
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`MR. WEINSTEIN: I guess I don't make a distinction
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`between a constant correction of zero and no correction. If the
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`correction --
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`JUDGE ARPIN: Thank you. Please continue.
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`JUDGE DESHPANDE: Counsel, can you connect the dots
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`for me in terms of relating correction value to tolerance? Why are
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`they the same?
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`MR. WEINSTEIN: The easiest way to describe it is kind of
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`to ask the converse question. If the tolerance level was the same for
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`every pixel, why would you have different corrections for different
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`pixels?
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`JUDGE DESHPANDE: I appreciate the converse, but I'm
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`looking for why they are the same. The burden of proof bears to you
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`to explain to me why they are the same.
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`MR. WEINSTEIN: Of course. The tolerance level, for
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`example, in Figure 2, in a central rectangular portion, you have a full
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`correction, a decrease in correction in the surrounding region and
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`then, my understanding, and no correction in the region outside of
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`that.
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`And the reason that that demonstrates there's a different
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`tolerance level is that if the tolerance level is the same, you would be
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`doing all corrections for everything or no corrections for none. The
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`tolerance level is different for the pixels within the rectangular region.
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`That's why you are doing a full correction.
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`The tolerance level for the pixels in the surrounding region
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`is different. That's why you are doing a decreasing correction. The
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`tolerance level for the pixels outside of the surrounding region where
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`there's no correction also have a different tolerance level which is the
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`reason why there's no correction done.
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`JUDGE DESHPANDE: I understand paragraph 45 and
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`what it's saying to me. What I'm asking you is more based on claim
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`construction. The claim requires tolerance and what Kamada is
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`describing it does is a correction. How are those two related?
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`MR. WEINSTEIN: They are related that depending on the
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`tolerance level determines the type of correction that you are going to
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`do for that particular pixel.
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`JUDGE McKONE: Now, my understanding of tolerance is
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`that it is a certain amount of deviation that can be accepted before a
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`correction is -- would be applied to a pixel. Is that an incorrect
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`understanding of what tolerance means?
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`MR. WEINSTEIN: I'm sorry, could you repeat that
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`JUDGE McKONE: So tolerance, in my understanding,
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`would be, I guess, the minimum amount of deviation from some
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`number, some pixel value that I can tolerate before I need to apply a
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`correction. Is that an incorrect understanding of tolerance?
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`MR. WEINSTEIN: I think that's one interpretation of
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`tolerance.
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`JUDGE McKONE: Is that an incorrect interpretation of
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`tolerance?
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`MR. WEINSTEIN: Because the term was never defined by
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`the parties, I think that's one fair interpretation. It's not necessarily the
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`broadest reasonable interpretation, but that's one, maybe a narrower
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`interpretation of it.
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`JUDGE ARPIN: Counsel, can we have your interpretation?
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`MR. WEINSTEIN: My interpretation is broader, just that
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`the difference in the appearance of the pixel is the different tolerance
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`levels and that the amount of, for example, the amount of unevenness
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`in the pixel, a difference in the unevenness among pixels shows a
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`difference in tolerance for those pixels.
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`JUDGE McKONE: Do you have any support for that?
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`MR. WEINSTEIN: Just based on the fair teachings of the
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`reference that one of ordinary skill would understand it to mean that.
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`JUDGE ARPIN: Counselor, does the reference draw any
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`distinction between the correction value and the tolerance value?
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`Because it seems to me that they are different numbers or different
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`values.
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`MR. WEINSTEIN: I think that the correction value and the
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`tolerance value are related in Kamada and that Kamada teaches that
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`depending on the tolerance whether or not you would correct it. And
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`that tolerance again relates to, for example, the level of unevenness in
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`that particular pixel. The more unevenness, the different tolerance,
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`the more correction. The less unevenness, the different tolerance, the
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`less correction.
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`JUDGE McKONE: Now, according to paragraph 45, it
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`states that within a rectangular region defined by two points, a
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`constant correction value K is applied. So within that region, if I have
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`a pixel that is exactly where it's supposed to be, the way I read
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`paragraph 45, correction value K would still be applied to that value.
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`Is that incorrect?
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`MR. WEINSTEIN: Correction K is applied to all pixels
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`within that particular region.
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`JUDGE McKONE: Even if they are exactly where they are
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`supposed to be?
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`MR. WEINSTEIN: Well, I would also --
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`JUDGE McKONE: In other words, it's not a defective pixel
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`in any way.
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`MR. WEINSTEIN: So you are saying if there was a
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`defective pixel and a nondefective pixel within the rectangular region?
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`JUDGE McKONE: Yes. Both would have the constant
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`correction value K applied to it; is that correct?
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`MR. WEINSTEIN: If that was the case within that
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`rectangular region, then, yes. I would also point the judges to
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`paragraph 49 of the Kamada reference. And in particular, in
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`paragraph 49, Kamada teaches that when the gray level of the pixel or
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`half tone as it's sometimes referred to as, is close to black or white, it
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`says that there's no need for uneven appearance correction. And I take
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`that to mean that Kamada is expressly teaching that there's a different
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`tolerance level for the pixels depending on the gray level of that pixel.
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`They are saying --
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`JUDGE McKONE: Did you point to, is this something that
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`was cited in your Petition?
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`MR. WEINSTEIN: It is cited on page 16, paragraph 28 of
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`the petition, paper number 4.
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`JUDGE McKONE: Okay.
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`MR. WEINSTEIN: And I would submit that that is a very
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`specific teaching of a different tolerance level that, depending on the
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`gray level of the pixel, that correction is done or not done and that
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`even if there is an unevenness for pixels that are close to black or
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`white, that there's no need to do correction for them.
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`JUDGE DESHPANDE: Going back to Judge McKone's
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`question, when we are talking about correction, what exactly -- how
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`are the pixels being corrected in Kamada? So when he's asking the
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`question that if a pixel is not defective, we are still applying a
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`correction, what correction would be applied to a pixel that's already
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`working perfectly fine?
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`MR. WEINSTEIN: That would depend on the correction
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`data for that particular pixel so that if that particular pixel is proper
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`already, then the saves data -- so the K is the coefficient that's applied
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`to the correction data. So when K, for example, equals 1, you are
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`doing the full correction for whatever is needed to be corrected for
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`that pixel, but if the pixel is not defective, if it's at the proper
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`brightness, for example, then the correction data for that particular
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`pixel would be zero. There would be no correction.
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`JUDGE ARPIN: Counselor, looking at paragraphs 45 and
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`49, is the correction data then the gray level?
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`MR. WEINSTEIN: It's a combination between 45 and 49.
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`It's both a position of a pixel as well as the gray level of the pixel. So
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`for example, if a pixel within the rectangular region was to be fully
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`corrected, according to paragraph 45, if the gray level for that pixel
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`was close to white or close to black, then there would be no need to do
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`any correction for that pixel. So they can be used in combination and
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`Kamada does teach using them in combination.
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`JUDGE ARPIN: Counselor, if inside of the block defined in
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`Figure 2, X1-Y1, X2-Y2, there are both black and white pixels, are
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`you telling me that they are going to have different k values?
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`MR. WEINSTEIN: No, what I'm saying is that just with
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`respect to -- it's because you are applying a combination of both the
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`position and the gray level for doing the correction. If the pixel is
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`within the rectangular region, then that k value would be 1, for
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`example. But because the gray level would be close to black or close
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`to white, there would be no need to do actual correction for that pixel.
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`So the fact that K is 1 becomes irrelevant because no correction would
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`be done for that pixel.
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`JUDGE DESHPANDE: So can we correlate the k value to
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`the tolerance level? Is that the same?
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`MR. WEINSTEIN: It can be. If you are just looking
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`limited to paragraph 45 when you are talking about position and K
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`level, then, yes, you can correlate it to tolerance, that the -- if pixels
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`that need to be corrected have a different tolerance than the pixels that
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`are not being corrected.
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`JUDGE McKONE: You said that's in paragraph 45?
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`MR. WEINSTEIN: Correct.
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`JUDGE McKONE: Where? What language are you
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`pointing to in paragraph 45?
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`MR. WEINSTEIN: Well, in paragraph 45 what I'm saying
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`is that it teaches having the different corrections for the different
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`regions depending on display unevenness and that by having the
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`different display unevenness and having different corrections for
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`different parts, that's showing the different tolerance levels for the
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`pixels and for different positions within the display.
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`JUDGE ARPIN: Counselor, referring to your slide DX9
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`and paragraph 45, the sentence after the underlined, the first
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`underlined portion says, “This correction value corresponds to an
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`amount of shift by which a gray level is changed.”
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`If there are different gray levels in X1-Y1, X2-Y2, that
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`rectangular block, wouldn't they have different correction values,
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`different k values?
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`MR. WEINSTEIN: Well, the teaching in Kamada, there's a
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`difference between the correction value and -- the correction value K
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`and the correction data that's actually used with it. So the correction
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`value -- you still have correction data stored for a particular pixel and
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`whether or not you use that correction data for that pixel depends on
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`the value of K.
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`If K is 1, then you use that correction data for that pixel. If
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`the k value is zero, then you are not using that correction data. You
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`are still doing a testing of the display to identify pixels, to see where
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`there's unevenness, where they are not displaying, for example, at the
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`proper brightness and you are storing that information about how off
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`they are from the proper brightness or the brightness level they are
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`supposed to be and then whether you --
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`JUDGE McKONE: So k is a binary number? These are
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`either zero or 1. If K is 1, you apply some different correction data
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`and if it's zero, you apply no correction data? That's how you are
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`reading this?
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`MR. WEINSTEIN: That's correct for the rectangular region
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`and the region outside the surrounding area. In the surrounding area,
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`K actually has a value between zero and 1. So you are applying
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`effectively a partial correction.
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`JUDGE McKONE: Are you saying that within a single
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`region there is still applying different correction values based on
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`different thresholds within the same region because some pixels may
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`be defective and others may not be defective? Is that your theory?
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`MR. WEINSTEIN: I'm sorry. Could you repeat that?
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`JUDGE McKONE: Is it your theory that within a single
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`region the thresholds can vary because some pixels may be defective
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`and some may not, and, therefore, either you are going to apply K
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`equals 1 or K equals zero to those pixels accordingly?
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`MR. WEINSTEIN: That's fair.
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`JUDGE McKONE: Is that anywhere in your Petition?
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`MR. WEINSTEIN: The way we've described it in our
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`Petition is that because there's different correction values for different
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`regions, depending on differences in the display unevenness, that that
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`indicates there are different tolerance levels for the pixels. And the
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`way we've described it for example in our Reply is to explain that
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`essentially that same point, that by having different corrections for
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`different parts indicates that the tolerance level is varying among the
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`different pixels of the display.
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`JUDGE McKONE: Okay.
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`JUDGE ARPIN: Counselor, turning back to paragraph 49, it
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`talks about there is no need for uneven appearance correction when
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`it's close to black or the display data is close to black or close to white.
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`If I have white, black and gray within that box X1-Y1, X2-Y2, and we
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`have a binary k value, how is that going to work? Is it zero when it's
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`black and zero when it's white and 1 when it's gray so I have different
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`k values inside that box?
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`MR. WEINSTEIN: When you combine them together,
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`paragraph 45 and 49, you would actually be multiplying together two
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`different k values. So you would have a k value based on position, so
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`it's in that rectangular region. So k is 1, but because the gray level is
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`close to black or close to white, the k level from paragraph 49 would
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`be zero. When you multiply them together, you get zero correction.
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`JUDGE ARPIN: Thank you. Please proceed.
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`MR. WEINSTEIN: What -- the Patent Owner is going to
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`rely on two principal points to dispute that Kamada's teaching that the
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`tolerance level varies among the pixels, and the first is that Kamada
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`teaches properly correcting the display and second that Kamada does
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`not teach having a desired nonuniformity.
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`Even if that was the case, that Kamada was limited to those
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`teachings, which is not correct, as I'll explain shortly, both points are
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`irrelevant to whether or not Kamada teaches that the tolerance level
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`varies. In particular, neither one of those points, there's no causal
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`connection between those points and the tolerance level of the pixels.
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`For example, if the tolerance level varies among the pixels,
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`it's possible to have proper correction, to have partial correction or no
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`correction. So doing proper correction says nothing about the
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`tolerance level of the pixels.
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`Similarly, if the tolerance level varies among the pixels, it's
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`possible to have a desired nonuniformity or to have complete
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`uniformity. Having complete uniformity of the display says nothing
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`again about the tolerance level of the pixels.
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`But not only are these points irrelevant, they are incorrect
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`because Kamada, in fact, teaches not properly correcting the display.
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`As we've just discussed with respect to paragraph 49, Kamada teaches
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`that there's no need for uneven appearance correction for pixels that
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`are close to black or white. So if you are not correcting for that
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`uneven appearance, then clearly you are not applying -- you are not
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`doing a proper correction of the display.
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`Similarly with respect to paragraph 69, it says that the
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`correction value k2 which is applied for pixels outside of that
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`surrounding region can be, quote, “any desired value.” If k2 can be
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`any desired value, then it can be a value that provides proper
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`correction of the display as well as not proper correction.
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`In addition, Kamada also teaches having a desired
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`nonuniformity. Again, looking at paragraph 49, since Kamada
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`teaches that there's no need to correct uneven appearance for pixels
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`close to black or white, the display would have a desired
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`nonuniformity.
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`Similarly in paragraph 69, since Kamada teaches correction
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`k2 for pixels that are outside the surrounding region can be any
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`desired value, k2 can be set to produce a desired nonuniformity.
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`Just to summarize my points on this first issue, it's our
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`position that Kamada has several teachings that the tolerance level
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`varies among the pixels first by teaching that the display has different
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`types of uneven appearances in different locations of the display, by
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`teaching that there's different corrections for different pixels of the
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`display and by teaching that there's no need to correct for uneven
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`appearance depending on the gray level of the pixels on the display.
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`If you have no further questions on the first issue, I would
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`like to move on to the second issue.
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`JUDGE DESHPANDE: Counsel, you have about five
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`minutes remaining.
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`MR. WEINSTEIN: Thank you. Turning to DX12, the
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`second issue is that whether or not this was timely filed. And turning
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`to DX13, the applicable dates and the time were that the Patent Owner
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`filed their original complaint for the '849 patent on September 2nd and
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`served it October 7th. They filed their reissue on December 28, 2011,
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`and it issued as the '707 patent on October 2nd. The Court granted
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`leave for the Patent Owner to amend their complaint to assert the
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`reissued '707 patent for the first time on January 17, 2013. And this
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`Petition was filed then on January 17th, one year later, 2014.
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`On DX14, the first fundamental point is that the reissued
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`'707 patent is not the same as the '849 patent. Under 35 U.S.C. 252,
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`the surrender of the original patent shall take effect upon issue of the
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`reissued patent. In this case, then, the '849 patent was surrendered
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`when the '707 patent issued.
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`On DX15, the reissued '707 patent is not the same as the
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`'849 patent as also confirmed by the Board in the grant decision, that
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`the reissuance of the '849 patent as the '707 patent did not continue the
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`'849 patent, but rather resulted in the surrender of it and the issuance
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`of a new patent. Since they are different patents, it's the service date
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`of the amended complaint asserting infringement of the '707 patent for
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`the first time that governs the one-year date, not the service date of the
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`original complaint.
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`Turning to DX16, another important point is that claims 101
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`to 104 of the reissued '707 patent are not substantially identical to any
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`of the original claims of the '849 patent. Again, looking at 35 U.S.C.
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`252, the reissued patent to the extent that its claims are substantially
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`identical to the original patent shall constitute a continuation thereof
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`and have effect continuously from the date of the original patent. So
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`in other words, reissued claims only have effect continuously from the
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`date of the original patent if they are substantially identical. And in
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`this case, looking at DX17, it's clear that claims 101 to 104 are not
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`substantially identical.
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`JUDGE ARPIN: Counselor, does it matter whether or not
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`all the claims are substantially identical or any of the claims are
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`substantially identical?
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`MR. WEINSTEIN: For the purposes of what date governs,
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`the claims that are not substantially identical apply to the date that the
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`reissued patent is asserted. For t
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