IPR2014-01166, Paper No. 43
`IPR2014-01276, Paper No. 39
`December 10, 2015
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`trials@uspto.gov
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC., CIENA CORPORATION, CORIANT
`OPERATIONS, INC., CORIANT (USA) INC., AND FUJITSU
`NETWORK COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`CAPELLA PHOTONICS, INC.,
`Patent Owner.
`____________
`
`Cases IPR2014-01166 and IPR2014-01276
`Patents RE42, 368 and RE42, 678
`____________
`
`Held: November 5, 2015
`____________
`
`
`
`
`
`BEFORE: JOSIAH C. COCKS, KALYAN K. DESHPANDE,
`JAMES A. TARTAL, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Thursday,
`November 5, 2015, commencing at 1:30 p.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, 9th Floor, Hearing
`Room A, Alexandria, Virginia, before Melissa G. Fleming,
`Professional Court Reporter.
`
`
`
`IPR2014-01276, Paper No. 39
`December 10, 2015
`
`trials@uspto.gov
`
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC., CIENA CORPORATION, CORIANT
`OPERATIONS, INC., CORIANT (USA) INC., AND FUJITSU
`NETWORK COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`CAPELLA PHOTONICS, INC.,
`Patent Owner.
`____________
`
`Cases IPR2014-01166 and IPR2014-01276
`Patents RE42, 368 and RE42, 678
`____________
`
`Held: November 5, 2015
`____________
`
`
`
`
`
`BEFORE: JOSIAH C. COCKS, KALYAN K. DESHPANDE,
`JAMES A. TARTAL, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Thursday,
`November 5, 2015, commencing at 1:30 p.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, 9th Floor, Hearing
`Room A, Alexandria, Virginia, before Melissa G. Fleming,
`Professional Court Reporter.
`
`
`
`
`Cases IPR2014-01166 and IPR2014-01276
`Patents RE42,368 and RE42,678
`
`APPEARANCES:
`
`
`
`ON BEHALF OF THE PETITIONER:
`
`
`
` FOR CISCO SYSTEMS:
`
`
`
`WAYNE STACY, ESQUIRE
`SARAH GUSKE, ESQUIRE
`
`
`Cooley LLP
`380 Interlocken Crescent
`
`Suite 900
`
`Broomfield, California 80021-8023
`
`
`--and--
`
` FOR FUJITSU NETWORK COMMUNICATIONS:
`
`
`
`CHRISTOPHER E. CHALSEN, ESQUIRE
`NATHANIEL T. BROWAND, ESQUIRE
`
`Milbank, Tweed, Hadley & McCloy LLP
`
`28 Liberty Street
`
`New York, New York 10005-1413
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`JASON D. EISENBERG, ESQUIRE
`ROBERT GREENE STERNE, ESQUIRE
`NICHOLAS J. NOWAK, ESQUIRE
`TYLER J. DUTTON, ESQUIRE
`Sterne Kessler Goldstein Fox
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`
`
`
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`P R O C E E D I N G S
`- - - - -
`JUDGETARTAL: Good afternoon and welcome. We
`are here for the final hearing in two separate inter partes review
`cases. Both are captioned Cisco Systems, Incorporated, Ciena
`Corporation, Coriant Operations, Incorporated, Coriant USA,
`Incorporated, and Fujitsu Network Communications,
`Incorporated, Petitioner, versus Capella Photonics, Incorporated,
`Patent Owner.
`The first case is IPR2014-01166 concerning U.S. Patent
`RE42,368E. The second case is IPR2014-01276 concerning U.S.
`Patent RE42,678E.
`First, let me begin by introducing the panel. I am joined
`by Judge Cocks to my right and Judge Deshpande and I am Judge
`Tartal.
`
`Let's get the parties' appearances, please. Who do we
`have appearing today on behalf of Petitioner?
`MR. STACY: Wayne Stacy for Cisco and with me is
`Sarah Guske. Here at the table is Britt Davis.
`JUDGE TARTAL: Good afternoon, counsel.
`And now for Patent Owner, who do we have appearing
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`MR. EISENBERG: Jason Eisenberg for Patent Owner.
`With me at counsel's table is Robert Greene Sterne. We also have
`Nicholas Nowak here with us.
`JUDGE TARTAL: Thank you and welcome.
`We set forth the procedures for today's hearing in the
`trial order. As a reminder, each party will have 60 minutes of
`total time to present arguments in both cases. Petitioner has the
`burden of proof and will go first.
`The parties have agreed in advance that Petitioner will
`open jointly for both cases. The Patent Owner will then present
`opposition arguments jointly for both cases. And then to the
`extent that Petitioner has reserved time, Petitioner will present
`arguments and reply jointly for both cases.
`The parties must at all times make clear which case they
`are discussing so that we can maintain a clear transcript. Also for
`clarity in the transcript, when you refer to an exhibit on the
`screen, please state for the record the exhibit and page number or
`for demonstratives the slide number to which you are referring.
`We are aware that Patent Owner has filed objections to
`Petitioner's demonstrative slides 2 to 23 or, rather, 3 to 23. We
`reviewed the demonstratives and we are not going to rule on the
`objections at this point. Petitioner is permitted to present the
`slides as it chooses.
`Both parties are reminded that demonstrative slides are
`not evidence and will not be relied upon for a final decision.
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`Patents RE42,368 and RE42,678
`Moreover, arguments raised for the first time during this hearing
`or in a demonstrative will not be given weight in our final written
`decision.
`We remind each party that under no circumstances are
`they to interrupt the other party while that party is presenting its
`arguments and demonstratives. If a party wants to spend time
`today arguing that a demonstrative or argument presented by the
`other party is objectionable for any reason, that objection may be
`voiced only during the objecting party's argument time.
`For example, if Patent Owner wants to address an
`objection to any slide presented or argument made by Petitioner,
`Patent Owner may only voice that objection during Patent
`Owner's allotted time to speak. If there's an issue with a
`demonstrative or argument presented by the final party to speak,
`the concerned party may request the opportunity to address its
`objection before we adjourn the hearing.
`Are there any questions on behalf of the Patent Owner
`at this time?
`MR. EISENBERG: No questions, Your Honor.
`JUDGE TARTAL: Are there any questions on behalf
`of Petitioner at this time?
`MR. STACY: No.
`JUDGE TARTAL: Petitioner, would you like to
`reserve a certain amount of time for a reply?
`MR. STACY: Yes. I was going to reserve 20.
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`JUDGE TARTAL: You can proceed when you're
`
`ready.
`
`MR. STACY: So I wanted to first address in slide 2
`how we broke out the presentation for today. If you have
`particular questions about issues, you can direct me at any time to
`wherever you'd like to go, but these were the issues across both
`sets of patents and I've got an order in mind. If you want to take
`me out of that order, just let me know.
`The first thing I wanted to address was the priority
`issues and the second would be the construction of the term port
`common to both IPRs.
`So on the priority issue for the Smith provisional with
`Dynamic Drinkware, the Federal Circuit's -- or according to most
`commentators, it's kind of throwing a curve ball in, so we wanted
`to address that. It matches what was put forward in our papers on
`the five-page brief that the Board allowed and the five pages of
`expert -- of a chart that was permitted.
`And the important thing here is that, you know, the
`claim, Smith Claim 1 was one of them we addressed. We also
`addressed Claim 28 specifically in that five-page brief on page 5.
`And the element that was disputed by Patent Owner is
`this element straight from the claim. Looking at slide 5, it's the
`movable mirror element. And keep in mind we're in the Smith
`patent here, so we're not to this whole issue about two axes and
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`continuous. The only thing we're looking at is the concept of
`movable mirror.
`And when you look at the Smith provisional looking at
`slide 6, the Smith provisional talks about movable mirrors
`throughout. In fact, that's the whole purpose. The Smith
`provisional talks about this mirror that's moved in two axes, left
`and right, back and forth, and so the concept of movable mirror
`carries -- I guess let me say that again, the concept of movable
`mirror that's in the Smith patent claim is covered in spades in the
`Smith provisional.
`And if you look at their -- Patent Owner's five-page
`briefing on this issue, out of five pages they devote the one
`sentence to saying, well, under the new Dynamic Drinkware
`there's only one element, the movable mirror element that's
`missing.
`So I think the issue under 119 is satisfied based on any
`objections that the Patent Owner has raised.
`JUDGE COCKS: Counsel, I have a question.
`MR. STACY: Yes, sir.
`JUDGE COCKS: Does Dynamic Drinkware require
`you to show support for all of the Smith claims in the Smith prior
`art, in the Smith provisional?
`MR. STACY: No. No, it can't, because the statute
`refers to the invention, not every invention in the claim.
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`Patents RE42,368 and RE42,678
`JUDGE COCKS: But Dynamic Drinkware refers to the
`“claims” in making that requirement, but are you reading at least
`one claim out of what the court said?
`MR. STACY: Yes. So that plural caused me great,
`great heartburn. That's the reason we addressed Claim 1 and
`Claim 28, so we did address plural claims.
`JUDGE COCKS: Okay. Go ahead.
`MR. STACY: So -- and, again, just to further illustrate
`beyond the text, when you go to slide 8, you can see in the
`provisional it talks about minor axis tunability and major axis
`tunability. Those are the two axes of rotation. And all of those
`issues were addressed directly in the briefing and the five-page
`chart. As you can see on slide 10, we clipped one piece out just
`to show where that was in the record.
`So you asked about plural claims. We specifically
`address Claim 28, another one of the independent claims to make
`sure that we address two claims. Claim 28 is the method version
`of Claim 1. It looks very, very similar.
`Patent Owner said nothing about it. They didn't raise
`any objection. So in the Dynamic Drinkware and the In re
`Giacomini line, they didn't raise it. It's got to be waived if they
`have an issue.
`JUDGE COCKS: Why are they focusing on just two
`claims? Why did the court do that? Why did they -- if they refer
`to the claims, meaning only two claims, why did they do that?
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`MR. STACY: Well, the Federal Circuit didn't address
`the plural issue. That's just that one term that is in the patent or in
`the decision. So they never said you had to do two claims or all
`claims. It's just one word in there.
`And when you go back and look at 119, it talks about
`the invention and, you know, case after case for the last 50 years
`an invention is one claim. So why they used the word claims, I
`don't know, but they definitely didn't say that you have to show
`priority on each and every claim in a patent to get the benefit of a
`provisional and that would turn basically the idea of using a
`provisional on its head that each and every claim would have to
`match.
`
`And, you know, in District Court litigation, for
`example, to get 119 priority, it's always a claim-by-claim
`analysis. And so that's what we're looking at here is 119 priority
`as separated from the other types of cases that are addressing the
`carry-through priority.
`And even this Office itself seemed a little bit surprised
`by the announcement that the Federal Circuit had that wasn't what
`was required in the Patent Office for priority and other panels of
`the Federal Circuit hadn't required that either.
`And if you look at the commentators, like Patently-O,
`they can -- they're just scratching their heads about what this
`means right now, but the good thing for us is it doesn't matter
`whether you apply the 119 issue or the 119 in the carry-through
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`because they're both addressed fully in Smith from the
`provisional over. So we meet whatever standard that the Federal
`Circuit wants to carry forward in this matter.
`So with regard to Claim 28, we were a little puzzled
`when we saw the briefing from Patent Owner. It said we only
`discussed Claim 1. But if you look at page 5, we specifically
`called out 28 and matched that material. So there's -- any
`objection on 28 is waived, but we can address it on the merits,
`too.
`
`The closest step in Claim 28 to the movable mirror is
`the adjusting said transmissive elements, the same type of thing
`when you look at slide 14 that the Smith provisional talks about
`adjusting the transmissive elements, which are the mirrors. You
`can see it can be rotated in an analog fashion about two
`orthogonal axes and all we need to do is show adjusting.
`That's exactly what Smith is designed to do is take a
`beam of light into the mirror and adjust the reflection angle going
`backwards.
`There's a lot of issues raised in the briefing about the
`gimbaled mirror. The gimbaled mirror doesn't matter at all on
`this matter because it's not in the claims. If you look at Claim 1,
`Claim 28, the gimbaled mirror just simply isn't there and it just --
`it's a red herring for the 119 priority issue.
`Now, as you move forward and you look at their
`five-page briefing, the other issue that was raised is the
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`carry-through. Was the material disclosed in the provisional also
`recited in the -- or was the idea of the concept also carried
`forward to the actual patent.
`And this is different because we're not looking at the
`Smith claim. We're looking to see if the material was carried
`through, and that was the traditional analysis under a lot of the
`other cases from In re Yamaguchi to In re Keller you wanted to
`see it going through.
`So this is no longer a 119 priority. This is following the
`material through and it's always element by element. You know,
`you're looking for a disclosure piece to disclosure piece, does it
`match.
`
`And there were -- the main issue, I guess the only issue
`they raise in their five-page briefing was the movable mirror
`carried through from the provisional to the actual patent in the
`Smith world. And you can see on slide 16 this is a quote from the
`Petitioner's response. This was all they raised on the
`carry-through.
`Well, this issue was addressed in the original petition
`and the expert report on the movable mirror. This chart came
`straight from the expert report. I'm looking at slide 17. And this
`was from the Marom declaration where first he talks about the
`beam deflecting elements and how that was disclosed in both, and
`you could see that that is in the '1166 IPR at slides 81 and 82.
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`But then I don't mean for you to have to read what's on
`slide 18, but this comes out of the Marom declaration again and
`this is -- you can see that the Smith provisional, which talks about
`maybe controlled by using a mirror array with elements that can
`be rotated in an analog fashion versus the Smith patent, which the
`structure is controllably tilted in two independent dimensions by a
`pair of electrodes.
`So the movable concept, and you can see it in the
`figures, is exactly what was carried through, all the way through,
`and actually that's all we need for priority in this case is that
`concept.
`There's a lot of material in their slides about what about
`continuous and was analog carried through. Well, one analog
`was carried through. There's no doubt in my mind that analog
`was carried through, but it doesn't matter because that's a separate
`concept.
`And when the Board issued grounds -- the ground 2, it's
`Bouevitch plus Smith plus Lin. And even if Smith didn't carry
`through on that particular concept of analog, Lin has it. So the
`grounds that was instituted, the Board can use Smith or Lin and
`that was expressly briefed in the petition that both of those
`references taught the idea of the analog, the continuous control.
`JUDGE TARTAL: So your contention, counsel, is that
`Smith is not necessary to demonstrate obviousness under the
`ground that was instituted on?
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`MR. STACY: Correct. It does demonstrate
`obviousness, but it's not necessary because it can be done with
`Lin.
`
`And, again, the major point here is the 119 issue is a
`gating item. That was the In re Drinkware, was the claim of
`Smith disclosed? The only issue they raised is movable mirror.
`Movable mirror is disclosed in the provisional.
`The next piece that you look at was the carry-through,
`which was the traditional law, and that's element by element and
`absolutely carried through the idea of the two-axis rotation. The
`analog is carried through and we'll deal with that in the proper
`place when we're talking about continuous, but analog is carried
`through. But even if not, Lin covers that.
`There were other issues since it was our burden about
`carry-through, but we addressed those and they haven't been
`attacked, so I'm not going to waste the judges' time with those
`particular issues.
`So now I'd like to turn to what seems to be the major
`contention they have on slide 24 and that's the construction of
`port and I want to put that in context on what this really means.
`So in the '368 patent, for example, on slide 25, you'll see the ports
`that are being discussed.
`There's an input port, there's other ports and an output
`port. You know, that's the universe of ports we're talking about
`and why does this matter? Claim 26 is figure -- or, sorry, slide 26
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`is Figure 11, but here's the blowout on slide 27, it's just an
`expansion for ease of use.
`And the ports that are being addressed, if you can see,
`are the in port right there, the output there, the output called out
`drop and then down here the in add. So these are the ports
`attached to the circulators 80a and 80b. So the question is, are
`those ports as the instituted claims recite? And Patent Owner
`says, no, they're attached to circulators, therefore, they can't be
`ports. Our position is a port is a port is a port, and that happens to
`be the broadest reasonable interpretation of a port.
`And the way we can see how port is used -- and, by the
`way, their argument on port is not that the ordinary meaning of
`port excludes a circulator. Their argument is that they disavowed
`circulators. So someone of skill in the art reading their patent
`would look at that and say it's an input port, it must not be on a
`circulator.
`That's what they're saying. They are manifest words of
`exclusion, you know, all of the strictness about disavowal. Well,
`it doesn't match up with the record and notably their expert never
`acknowledges what's in the patent. The Patent Owner's expert
`never talks about the provisional and what was really there.
`So the Patent Owner's '217 provisional, it's the
`foundation for both of the patents in the suit and expressly
`incorporated by reference. I think you can see that in the '678
`patent. And what does it disclose? This is Patent Owner's own
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`provisional, the basis for the patents at suit -- or in the IPR here,
`and this is Figure 9 looking at slide 30.
`Figure 9 from the Patent Owner, this is expressly called
`out as one of the three embodiments of the invention. When you
`look at the provisional, it calls Figure 9 out as an embodiment of
`the invention. And what do you find? So what you have here is
`on the left-hand side you see the input over here and then you get
`a pass-through port here and the circle is a circulator.
`It goes into the wavelength separation and routing.
`That's the mirror system. And then what happens? You have
`four ports, physical ports on the output, each of those ports
`connected to a circulator. Each of the physical ports have an
`associated add and drop port.
`This is their embodiment. They say that circulators
`were disavowed. No one would use circulators. They don't allow
`-- what did they put -- scalability, but this is the embodiment they
`said is their invention.
`And what's really interesting is when you look at Patent
`Owner's use of port, this is the language on slide 31 from the
`provisional on how the Patent Owner describes ports. First of all,
`you can see the third architecture, Figure 9, which is the figure
`we just looked at, but look what they describe, physical
`input/output ports and then down on the right-hand side add/drop
`ports.
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`Patents RE42,368 and RE42,678
`So when the Patent Owner wanted to talk about ports --
`ports is generic -- there was an adjective put in front of it,
`input/output, physical or add/drop ports and that's exactly what
`you see here. All of those things are ports under the broadest
`reasonable interpretation of the word port.
`JUDGE TARTAL: In Figure 9, counsel, on slide 30,
`how many ports do you contend are shown there?
`MR. STACY: There would be -- so -- well, one add --
`four add, four drop on the bottom-hand side, one input, one
`pass-through, so 10. And then the physical ports you could
`identify each of the physical ports also. So 11, 12, 13, 14, 15, if I
`did my math.
`JUDGE TARTAL: So to summarize, you're counting
`each of the drops on each of the four circulators as one port?
`MR. STACY: Correct.
`JUDGE TARTAL: Each of the adds on each of the
`circulators as an additional port, the ports labeled 1 through 4 as
`an additional port which feed into the circulators which brings us
`up to 12 and then the input and the pass-through?
`MR. STACY: Input and pass-through and then you
`have the physical port on the left-hand side of the wavelength
`separation and routing block.
`JUDGE TARTAL: Thank you.
`MR. STACY: Sorry, my -- I didn't add those up a little
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`And then when you look at the common usage of port,
`you know, we start with the broadest reasonable interpretation of
`port, unless they can show they disavowed it. So in our briefing
`we showed Ramaswami, the textbook, and here the textbook
`specifically talks about a circulator, but look at the language, port
`2, port 1, port 3. Those are ports coming off of the circulator.
`That's the common usage. Port is a generic term. If you
`want to exclude circulators, you're going to need to do something
`very specific to exclude circulators, but there's an adjective that
`goes in front.
`So, for example, if they wanted to exclude circulators,
`they could have said a physical input port, a physical output port
`and, in fact, they knew exactly how to do that. You see that in
`their provisional. When they wanted to identify the physical
`ports, the port 1, 2, 3 and 4 coming out of that device, they did it.
`They said it's a physical input/output port.
`What they're trying to do now with their circulator
`definition is insert the word physical back into the patent claim,
`but the patent drafter chose to use the generic term port and port
`is just a place for input/output. It could be on a circulator. It may
`not be on a circulator.
`Now, in terms of their disavowal, you've seen all the
`cases. You know the cases about how strict you have to be on
`disavowal from a plain and ordinary meaning. Well, what we got
`from them on disavowal, their entire support for disavowal from
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`their expert was on slide 33, paragraph 160. This was their
`expert's language.
`It teaches away from or at least discourages the use of
`circulators, at least discourages. That is not manifest words of
`exclusion. That is not disavowal, even if their expert was correct.
`The problem is when you look at their declaration, their
`expert doesn't talk about Figure 9 from the provisional anywhere.
`Their expert doesn't say, well, I know what Figure 9 is an
`embodiment of the invention, but they disavowed it later and this
`is why: You would expect somebody that had studied the record
`to address the fact that the preferred embodiment has four
`circulators in it, actually five circulators in it, and then say, well,
`how does that embodiment discourage the use of circulators?
`JUDGE TARTAL: Looking at Figure 9, though,
`counsel, isn't it sufficient to meet the claim limitations, even if
`each of those circulators was removed?
`MR. STACY: So Figure 9 is their figure.
`JUDGE TARTAL: Right.
`MR. STACY: So, yes. The ports that they use in their
`claims could be a physical port, physical input/output port or the
`circulator input/output ports.
`JUDGE TARTAL: Right. And so looking at Figure 9,
`if it didn't depict any circulators, only the physical ports 1, 2, 3
`and 4, the pass-through and the input, that would satisfy the claim
`limitations, correct? In other words, they're not relying on these
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`circulators in Figure 9 to meet any of the limitations of their
`claim.
`
`MR. STACY: Correct. Their claim is broad enough to
`cover Figure 9 with or without the circulators. Does that answer
`your question?
`JUDGE TARTAL: Yes. Thank you, counsel.
`MR. STACY: The main point, though, is when they
`use the word port, they're using it in the broadest sense possible
`and there's no clear disavowal that they want to get rid of the
`circulator ports.
`JUDGE COCKS: Counsel, did their expert point to any
`specific content of the '368 patent in making that teaching away
`or discouraging statement?
`MR. STACY: Yes. Their expert did go to the '368
`patent or my hesitation, it may have been the '678, but one of the
`two patents and pointed to the -- and they addressed the fact of
`scalability that circulators disrupt scalability and that the patent
`talks about wanting it to be scaleable. Well, you know,
`unsupported on that fact, but it doesn't change the fact that the
`provisional talks about it, this is a four-port system as being one
`embodiment of the invention.
`So when you go back and look at the claim language in
`the '368 on slide 36, this is the language you see, the input port,
`the other ports and the output port. That's the breadth of this
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`language. It's big, broad language. And what does Bouevitch,
`the primary reference in this case, show?
`So this annotation came straight out of the briefing. Up
`on the right-hand side you have the circulators at 80a and 80b,
`you have an input port up at A, you see up at the top. You have
`another input port down at C. You have an output port at E and
`an output port at D. So what does that give us? That gives us an
`input port, an output port and other port, just like the claim
`recites.
`
`The only way you get to their position is if you read
`something in the claim that says, and a port is not on a circulator,
`and that's just not supported. It would take something that
`aggressive into the claim to get to, to defend their position.
`So they also raise the issue of collimators and they say,
`well, in the '678 patent, looking at slide 38, it's a little different
`language. It says, multiple fiber collimators, providing an input
`port for a multiwavelength optical signal and a plurality of output
`ports. So multiple fiber collimators providing, and then you've
`got input port and a plurality of output ports.
`Now, notice that there's no direct correlation. It doesn't
`say one multiple or one fiber collimator providing one output
`port, another providing another output port. You don't get that
`kind of one-to-one correlation. All it says is multiple collimators
`providing at least the three ports. That's all there is in that claim
`language.
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`Patents RE42,368 and RE42,678
`And there's nothing -- their Patent Owner's expert said
`there's nothing special about providing, so we're just looking at
`the plain and ordinary meaning. And so in the plain and ordinary
`meaning you could have two collimators providing three ports,
`two collimators providing 10 ports. It just says you have to have
`multiple providing these things. As long as you've got two,
`you've satisfied the collimators.
`And Patent Owner has tried to argue that, well, it's got
`to be one to one, one collimator per one port, but that's not true.
`If you look at the other patent, the '368 patent, Claim 1 talks
`about an input port, the other ports and the output port.
`Later on in a dependent claim that's not at issue here,
`they talk about adding collimators and it's clear that they're
`adding. Notice the further comprising. It doesn't say wherein the
`ports are collimators. It's further comprising. They're adding on
`collimators.
`So this idea to do one-to-one correlation is just not
`supported by the claims. Again, they're adding something into
`the claims that just wasn't there. The original drafter drafted it
`much more broadly. And why does this matter when you look at
`Bouevitch, again the primary reference on slide 41, the
`collimators are shown there in M and that's 12a and 12b.
`Basically those are the lenses that are taking the light
`down the fibers. So what do you have here? Multiple fibers or
`multiple collimators. And what are they providing? An input A,
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`Patents RE42,368 and RE42,678
`an input C and two outputs at E and D. So Bouevitch satisfies the
`collimator language just like it satisfies the port language, unless
`you really do some violence to the claims and add a lot of extra
`limitations in there about one-to-one correspondence, which
`simply is just not there at this point in time.
`So with that, unless you want to direct me to a subject
`matter on the table of contents that you'd like to ask questions
`about, I'd like to address the two-axis mirror movement next.
`Okay. So the two-axis mirror pops up in all the claims
`and what you have in Bouevitch, the primary prior art reference,
`is the two-axis mirrors are down at elements 51 and 52 in the
`array and there's a lot of stuff going on in the picture, but what
`happens is you've got a signal with two wavelengths coming in,
`it's reflected down to the mirrors at 51 and 52 and one of the
`channels is reflected back. Those are your movable mirrors.
`So Bouevitch discloses the MEMS arrangement and
`that's the definition of MEMS on the movable mirrors. So the
`issue, then, is what do you do for the two-axis rotation that was
`added during the reissue. So if you remember, the original claims
`didn't have a two-axis limitation. They added two axes in the
`reissue.
`
`Smith actually discloses the two axes of rotation clearly.
`So loo
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