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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`KAWASAKI RAIL CAR INC.,
`Petitioner,
`
`v.
`
`SCOTT BLAIR,
`Patent Owner.
`_____________
`
`Case IPR2017-00117
`Patent 6,700,602 B1
`____________
`
`Record of Oral Hearing
` Held: January 26, 2018
`____________
`
`
`Before JAMESON LEE, SCOTT A. DANIELS, and KEVIN C. TROCK,
`Administrative Patent Judges.
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`Case IPR2017-00117
`Patent 6,700,602 B1
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MARK A. CHAPMAN, ESQUIRE
`Andrews Kurth Kenyon LLP
`One Broadway
`New York, NY 10004
`
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`
`DARIUS KEYHANI, ESQUIRE
`Meredith & Keyhani, PLLC
`125 Park Avenue
`25th Floor
`New York, NY 10017
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`
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`
`
`The above-entitled matter came on for hearing on Friday, January 26.
`2018, at 2 p.m., at the U.S. Patent and Trademark Office, Madison Building
`East, 600 Delany Street, Alexandria, Virginia, before Walter Murphy,
`Notary Public.
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`P R O C E E D I N G S
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`JUDGE LEE: Good afternoon. Please be seated. Just wait a minute
`until the judges come on the screens. Alright. Good afternoon everyone.
`We’re here for Kawasaki Rail Car Inv., v. Scott Blair, IPR2017-00117.
`Each party has 60 minutes of oral argument time but let’s start with
`introduction of counsel, beginning with Petitioner’s side followed by Patent
`Owner. Go ahead.
`MR. CHAPMAN: Thank you, Judge Lee. Mark Chapman for
`Petitioner Kawasaki, and I’m here with my colleague Armin Ghiam.
`JUDGE LEE: Thank you, welcome. I understand you’re admitted
`pro hac vice and we welcome PHV lawyers to present as long as there is a
`registered practitioner also present and I see that that’s true.
`MR. CHAPMAN: Yes, that is true. Thank you very much. Mr.
`Ghiam is a registered practitioner.
`MR. KEYHANI: Good afternoon, Your Honor. My name is Darius
`Keyhani and I’m here with my partner, Jennifer Meredith. She’s a
`registered patent attorney and she’s the lead counsel. I’m just pro hac vice
`but I will be arguing with the permission of Your Honor today. We
`represent the Patent Owner, Scott Blair, in this matter.
`JUDGE LEE: Welcome. Thank you.
`MR. KEYHANI: Thank you, Your Honor.
`JUDGE LEE: Does either side have physical copies of the
`demonstratives?
`MR. CHAPMAN: Yes, Your Honor.
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`MR. KEYHANI: Yes, Your Honor.
`JUDGE LEE: You’re welcome to bring them up to me right now.
`Thank you.
`JUDGE DANIELS: Excuse me, Judge Lee. I just wanted to remind
`the parties that they need to speak into the microphone too. I could hear
`them when they were just talking but there’s no microphone at the desks so
`they need to go to the podium to make sure we hear them.
`JUDGE LEE: That’s fine. They weren’t at the podium. It was my
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`bad.
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`JUDGE DANIELS: No, I could hear them just fine. Thanks.
`JUDGE LEE: And that goes for myself too. I need to speak into the
`microphone. All right. With that any time you’re ready, Mr. Chapman, you
`may begin.
`MR. CHAPMAN: Thank you.
`JUDGE LEE: Just let me know if you want to reserve some time for
`rebuttal.
`MR. CHAPMAN: Yes, Judge Lee. I’d like to reserve 20 minutes for
`rebuttal.
`JUDGE LEE: Thank you.
`MR. CHAPMAN: Thank you Judge Lee, and Judge Daniels, and
`Judge Trock. My name is Mark Chapman and I’m here on behalf of the
`Petitioner Kawasaki. I have a set of demonstrative slides here that I will
`walk through.
`Turning to slide No. 2, which is actually the first slide after the title
`page. Here I just wanted to remind everybody that we have one instituted
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`ground in this IPR and it is that claims 1, 2, 3, 4 and 6 of the 602 patent are
`obvious in view of Namikawa, Sasao, Amano and Maekawa.
`Here on slide 3, this is just an overview of the subject matter that I
`plan to cover today. First I will briefly go through what I think are the three
`relevant aspects of the patent and then discuss the two prior art references
`that are at issue, Namikawa and Sasao, and then I will go through the four
`claim limitations that are in dispute; mounted at the junction, directed
`obliquely downwardly, substantially flushed and sound free.
`So starting with the 602 patent here on slide 4, we can see that it’s
`directed to a video system for a subway car and there are three relevant
`aspects of the disclosed embodiment here. Two of them are shown in this
`figure 2. The first one is that the video monitors 22 are mounted at the
`junction of the side wall and the ceiling so you can see that here that they’re
`up in the top left and right corners of this cross-section view.
`The second relevant characteristic is that those monitors are angled
`downwardly so that passengers on the opposite sides can see the monitors
`and the video that’s playing on them and the text that we quoted --
`JUDGE DANIELS: Counsel, let me ask you what determines the
`junction of the ceiling? Is it an area or is it a linear feature?
`MR. CHAPMAN: Well the evidence from both sides is that it’s an
`area. It’s a -- in this picture it would be a curved area that extends from the
`edge of the ceiling down to the edge of the side wall and there’s a later slide
`where Patent Owner’s expert drew the junction on figure 2 in blue
`highlighting at his deposition and I could skip to that slide now if you like or
`we could address it later.
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`JUDGE DANIELS: No, you can get to it in time. Just my follow-up
`question on that is, I don’t think that this was one of the proposed
`constructions if I’m remembering correctly, but is this a term we perhaps
`need to construe?
`MR. CHAPMAN: It was a not a term that either side proposed a
`construction for or urged the Board to construe. I don’t believe it needs to
`be construed because I don’t think the definition of junction or the scope of
`that term would have any outcome on the underlying patentability issues.
`JUDGE DANIELS: Well, isn’t it more in Patent Owner’s arguments
`that certain of the prior art is not at the junction?
`MR. CHAPMAN: That’s correct. They argue that Namikawa’s is
`television monitors which I’ll show you in a few slides are not at the
`junction, but they don’t rely on the fact that the junction is a pointer or curve
`for that point. They’re relying only on text in Namikawa which says that
`those monitors are disposed on a wall face. But when you look at the figure
`of Namikawa it’s exactly the same as figure 2 of the 602 patent in terms of
`where the monitors are located. In other words, they’re located at the curved
`junction up at the corner. So I don’t think the meaning of the word junction
`is in dispute and as I said, Patent Owner’s expert drew the junction on figure
`2 of the 602 patent to include the entire curved area between the wall and the
`ceilings.
`JUDGE DANIELS: Okay, thank you.
`JUDGE LEE: They may be referring to in Namikawa the fact that the
`monitor is fixed to the wall, in other words bolted or fixed somehow. If that
`is what they mean by mounted at the junction, how can we tell how this
`monitor in the 602 patent is physically attached to the wall? Does it disclose
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`the precise location where the monitor is fixed to either the wall or the
`ceiling?
`MR. CHAPMAN: It does in the next figure which I was going to get
`to next. Figures 4 and 4A show at least schematically where it would be
`mounted and, again, the details of exactly where the mounting is occurring I
`don’t think are made clear because the patent I think explains that the details
`of that are not important to the invention. What’s important to the invention
`is that the location be where it’s stated to be in the patent, namely at that
`junction between the ceiling and the side wall. I think the idea here is that if
`you put it up in that junction and you angle it downwardly, it can be easier
`for passengers to see it than it if were lower or higher.
`JUDGE TROCK: Counsel -- sorry -- you’re not suggesting that we
`ignore this language mounted at the junction, are you?
`MR. CHAPMAN: Not at all. All I was trying to say is that I don’t
`think the parties dispute the meaning of the term and I think both sides agree
`that the junction includes that curved area and the term mounted I don’t
`think has any significance here because in all the prior art the televisions are
`mounted and not to be flippant, they’re mounted because they’re not falling
`down. The only issue is where are they mounted and the claim requires
`them to be mounted at the junction, and both sides agree that the junction is
`the curved segment in figure 2 of the 602 patent and for that matter, we
`argue it would be the same in figure 1 of Namikawa.
`JUDGE TROCK: So your view is as long as the monitor is at the
`junction and satisfies the claim, the word mount doesn’t add much to it.
`MR. CHAPMAN: I don’t think it adds anything of significance
`because I think the monitors in the prior art are mounted because they’re
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`fixed and are staying in place, they’re not falling down. I think that’s all that
`mounted means. It just means that they’re mounted up against the wall so
`that they’re not -- I don’t mean to be cavalier about this but I don’t think the
`verb mounted has any significance here because it really just means that
`they’re up there, located there.
`JUDGE LEE: Alright. Under that theory as long as one edge of the
`monitor is at the wall and the other edge is at the ceiling then it necessarily is
`mounted at the junction.
`MR. CHAPMAN: I think that’s fair because I think the junction
`would extend from the edge of the ceiling down to the edge of the wall.
`JUDGE TROCK: So then in your view is the dispute merely because
`Namikawa uses language in its text referring to the wall and the figure 1 in
`Namikawa shows it, in your view, at the junction? Is that the dispute here?
`MR. CHAPMAN: That’s exactly the dispute. The figure shows it
`mounted at the junction as defined by both sides and Patent Owner is
`arguing that you have to look at the text as well which says it’s disposed on
`a wall and our submission is that one of ordinary skill looking at figure 1
`would plainly see that those television monitors are at the junction and
`they’re mounted there because they’re not falling down.
`JUDGE TROCK: Well (indiscernible) do you have that slide?
`MR. CHAPMAN: Certainly. Hold on.
`JUDGE TROCK: Is that slide 8?
`MR. CHAPMAN: We can do it at slide 8, that’s fine. So here this is
`figure 1 of Namikawa and as you can see the monitors 12 are located at the
`junction. In other words they’re located at the curved region between the
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`ceiling and the side wall and they’re plainly mounted there because they’re
`not -- they’re fixed there, they’re not moving.
`JUDGE DANIELS: Why --
`JUDGE TROCK: Okay. How do you -- go ahead, Judge Daniels.
`Go ahead.
`JUDGE DANIELS: This is definitely a better question for Patent
`Owner when we get to it we’ll be done with, so why do you think it’s been
`argued that -- I think they’re arguing that they’re on the wall in Namikawa?
`MR. CHAPMAN: Yes, they are. Let me, if I can, just skip ahead to
`the slide that has -- actually I don’t think I have the text for Namikawa in
`one of those slides but I’m sure Patent Owner does. But there’s a few places
`in the specification of Namikawa where it describes these monitors 12 as
`being disposed on a wall and so Patent Owner says look, they’re using the
`word wall therefore they must be at the wall and our expert, and our
`response to that is, they’re not on the wall. They’re at the junction between
`the wall and the side and the ceiling, and you can see that in figure 1. So I
`don’t know -- I’m not saying we can necessarily reconcile the text with
`figure 1 but I think figure 1 trumps the text in this instance.
`JUDGE LEE: Is there necessarily a conflict? Can’t you be disposed
`on the wall as well as mounted at the junction?
`MR. CHAPMAN: If you give the word disposed a different meaning
`than mounting I suppose you could in the sense that disposed maybe means
`something broader than where it’s actually mounted, but refers more to
`where is it located generally, sure.
`JUDGE TROCK: Let’s assume disposed means you have a screw and
`that’s where the screw penetrates the wall, so that’s the physical mounting.
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`But the entire unit covers the entire region so from that perspective there’s
`no conflict here.
`MR. CHAPMAN: I agree with what you just said although I will
`point out I think Namikawa discloses the details of its mounting structure so
`we don’t actually know whether it’s mounted at the bottom like I think
`you’re positing, or whether it’s mounted further up.
`JUDGE LEE: We don’t even know how it’s physically attached.
`MR. CHAPMAN: We know it’s attached. We don’t know how it’s
`physically attached, but I think the key here is that if you look at figure 1 of
`Namikawa, those televisions are mounted, right, and where are they
`mounted? They’re mounted at the junction because that’s where the
`monitors are.
`JUDGE TROCK: Counsel, here’s what Namikawa says. I’m on page
`6 of Namikawa. It says,
`“Figure 1 shows one example of applying the present device to a car
`in an electric train of JR, a subway or the like, in a plurality of liquid crystal
`televisions 12 are disposed along the direction of travel on a wall face above
`each seat 11 inside a car 10.”
`So it uses the language “on a wall face.” How is one of ordinary skill
`in the art supposed to reconcile figure 1 with that language that is disposed
`on a wall face?
`MR. CHAPMAN: Well, I think one way to do it is the way Judge Lee
`was suggesting which is that maybe it’s mounted down at the bottom so the
`physical mounting is happening right at the top edge of the wall, but the
`television is extending up into the junction. But I think the fundamental
`point here is I don’t know that we need to reconcile the text of Namikawa
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`with the figure because the figure shows to one of ordinary skill that these
`televisions are located at the junction of the ceiling and the side wall, and we
`know they’re mounted there because that’s where they are located, and I
`don’t --
`JUDGE TROCK: So are you suggesting one of ordinary skill should
`ignore the text of Namikawa and just look at the figure?
`MR. CHAPMAN: I think that --
`JUDGE TROCK: Because this is Patent Owner’s argument; is it not?
`MR. CHAPMAN: Patent Owner’s argument is that you can ignore
`the figure and just look at the text, and our argument is that when you do
`look at the figure either to interpret the text or maybe it can’t reconciled with
`the text, but either way this is a disclosure in figure 1 of television monitors
`mounted at the junction of the side wall and the ceiling. The expert
`testimony from our expert is that one of ordinary skill would plainly
`understand that to be the case and I don’t think the details of the mounting
`are important or certainly not part of the claim, it just needs to be mounted at
`the junction.
`JUDGE TROCK: So is it your view then that someone of ordinary
`skill looking at Namikawa would not be confused by the difference between
`figure 1 and the language being used in the text, and that they would come
`away from this understanding that the mounting is at the junction of the side
`wall and the ceiling?
`MR. CHAPMAN: I don’t think they would be confused to the point
`where they wouldn’t understand figure 1. I think they would understand
`figure 1 to disclose and teach TV monitors in a subway car mounted at the
`junction of the ceiling and the side wall. I don’t think the text is so different
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`than the figure that it would cause someone to throw up their hands and not
`know what this is teaching. These claim elements are very visual by nature.
`They’re just for the most part talking about how things appear and where
`they appear and I think figure 1 of Namikawa clearly discloses mounted at
`the junction and, by the way, the angled downwardly limitation because you
`can see that the monitors are facing down to the passengers in the opposite
`seats.
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`JUDGE TROCK: All right. Thank you.
`JUDGE LEE: Counsel, do we know that if in Namikawa the junction
`is curved or is it a straight edge?
`MR. CHAPMAN: Well, again, the evidence is -- and I think we can
`all see this in figure 1 -- it’s curved. The wall is vertically straight and then
`it starts to curve at the junction and then the ceiling is also curved.
`JUDGE LEE: Well is there any text to back that up or is there any
`way one can read that as a straight edge?
`MR. CHAPMAN: I don’t think our position is that you could look at
`figure 1 of Namikawa and the region between the two dotted lines in figure
`1 and say that that’s a straight wall, and the reason I say that is the back of
`the monitors is curved and it looks to us, and I think our expert said this, that
`it’s a curved wall. Later in his analysis he explains how it would be obvious
`to substitute a flat piece of paneling for that curved wall if you wanted to
`make the monitors --
`JUDGE LEE: Is there any description in Namikawa to say that that is
`curved?
`MR. CHAPMAN: I’d have to check on that. I’m sorry I don’t know
`the answer to that question sitting here right now.
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`JUDGE TROCK: Well, the question I have is, is this getting us into
`the language of substantially flushed because when I look at claim 1 I don’t
`see language about a curvature?
`MR. CHAPMAN: Well, claim 1 recites a junction --
`JUDGE TROCK: Correct.
`MR. CHAPMNAN: -- and it’s clear both sides agree that that
`junction can be curved. I can show you the slide I was referring to earlier.
`JUDGE TROCK: Right. But my question is does it have to be?
`MR. CHAPMAN: No.
`JUDGE TROCK: All right. And so the other issue I think about this
`curvature is that I believe Patent Owner is arguing that in Namikawa
`because the back of those LCD’s in figure 1 appear to be curved and the
`junction appears to be curved, that they are mounted on that junction
`externally and that they therefore are not substantially flush. Is that your
`understanding of the Patent Owner’s argument?
`MR. CHAPMAN: Their position is that they’re externally mounted
`and their position is definitely that they’re not substantially flush.
`JUDGE TROCK: All right. So what is your response to that
`argument?
`MR. CHAPMAN: So our response to that is that the other prior art
`reference Sasao teaches the general concept of making the front screen of a
`television substantially flush with an adjacent wall and that one of ordinary
`skill in the art would take that teaching and be motivated to make
`Namikawa’s LCD televisions substantially flush with the adjacent wall.
`JUDGE TROCK: So you don’t disagree with Patent Owner’s
`interpretation of figure 1 that those are mounted externally?
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`MR. CHAPMAN: No. We don’t think Namikawa specifies either
`way and the testimony of our expert at the deposition was that you could
`externally mount them, they could be partially inside the wall and internally
`mounted. The latter way is the preferable way, but he conceded that you
`could do it both ways but there’d be no reason to do it this way.
`JUDGE TROCK: Well, I understand what you could do but what
`does figure 1 show us it’s doing?
`MR. CHAPMAN: It’s unclear whether it’s externally mounted or not.
`JUDGE TROCK: Well, how is it unclear?
`MR. CHAPMAN: Because the televisions could be recessed into the
`wall behind them and therefore mounted externally.
`JUDGE TROCK: On the one hand you’re telling us figure 1 is clear
`to someone of ordinary skill in the art because they’re mounted at the
`junction. Are you now telling us that it’s not clear with respect to whether
`they’re substantially flushed?
`MR. CHAPMAN: Well, it’s clear that they are mounted at the
`junction because you can see the location of the televisions. That location is
`clear and we know they’re mounted, and we know they’re mounted at that
`location. With respect to substantially flush, in the instituted ground we’re
`not contending that Namikawa on its own meets that element.
`JUDGE TROCK: So my question to you was whether or not you can
`see that Namikawa figure 1 shows that they are externally mounted?
`MR. CHAPMAN: And my answer would be that you cannot tell
`whether it’s externally mounted or internally mounted, but you can tell that
`they’re mounted at the junction.
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`JUDGE TROCK: Well, let me ask you this. Let’s look at figure 1,
`looking back towards the door it has a little panel 13. Do you see that?
`MR. CHAPMAN: I do.
`JUDGE TROCK: Okay. So let’s look at the monitor which is closest
`to that door on the right hand side. They all have No. 12 on them. But I just
`want to focus on that one that’s in the rear right upper corner; do you see it?
`MR. CHAPMAN: I do.
`JUDGE TROCK: All right. You see the back curvature of that
`monitor?
`MR. CHAPMAN: Yes.
`JUDGE TROCK: All right. If that were substantially flush mounted
`so that just the screen was flush with that junction, would I be able to see
`that?
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`MR. CHAPMAN: No.
`JUDGE TROCK: All right. So doesn’t that inform me as someone of
`ordinary skill in the art that that is indeed mounted externally at that
`junction?
`MR. CHAPMAN: No, and I’ll tell you why. It could be mounted
`internally but there could be a part of the monitor that is protruding outside
`of the wall. In other words, we don’t know what’s happening behind the
`curved arc that we see. That could just be the juncture of the side of the
`monitor and the wall and there may be more depth behind it inside the wall.
`By the way, I don’t think anything turns on this distinction though because
`either way our submission is that the evidence shows that it would have been
`obvious to make it substantially flush.
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`JUDGE TROCK: By incorporating the teachings of Sasao; is that
`right?
`MR. CHAPMAN: Correct.
`JUDGE TROCK: But doesn’t Sasao teach this substantially flush
`with respect to a rear projection television set though?
`MR. CHAPMAN: It does. The disclosed embodiment is a rear
`projection TV but --
`JUDGE TROCK: Is there any application in Sasao to an LCD?
`MR. CHAPMAN: There is not.
`JUDGE TROCK: Then why would someone of ordinary skill in the
`art take that teaching from Sasao and apply it to an LCD screen inside of a
`subway car?
`MR. CHAPMAN: Because both Namikawa and Sasao deal with
`televisions and Sasao, although the disclosed embodiment is a rear
`projection TV, it’s careful to say that other types of TV’s could be used. It
`doesn’t mention LCD’s, but it’s more generally directed to putting a display
`device behind a wall so that the front of the television display is substantially
`flush with the wall, and so our submission is that one of ordinary skill who
`has Sasao and Namikawa in front of him, a hypothetical person of ordinary
`skill who’s looking at the prior art would see that teaching and be able to
`easily apply it in the context of Namikawa based on the motivations.
`JUDGE TROCK: And what would those motivations be?
`MR. CHAPMAN: Let me just skip to the slide where I have them
`listed so I don’t test my memory. So here on slide 24, this is the list of
`motivations that our expert, Mr. Malo, identified in his declaration and at his
`deposition and I think the two most important ones are probably the first
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`one, the motivation to conserve space, and the last one which is the Federal
`Railroad Administration proposal that interior fittings in passenger rail
`compartments be recessed or substantially flush. There are other
`motivations listed here. I’d be happy to go through them if you’d like.
`JUDGE TROCK: No, I can see them. Can I focus your attention on
`the last one for a second? Could you describe for us the disagreement here
`about whether or not these interior fittings include television screens because
`it appears to me that there is a dispute between the two parties as to whether
`or not this would include television screens because of some fire risk?
`MR. CHAPMAN: There is a dispute. It’s moving, if I can put it that
`way. Originally the dispute was that Patent Owner contended that a
`television is not even an interior fitting and therefore would be outside the
`scope of this requirement to have interior fittings be flush mounted.
`JUDGE TROCK: Can you tell me what evidence there is that a
`television screen would be an interior fitting?
`MR. CHAPMAN: Certainly. First of all, there’s the testimony of our
`own expert who looked at the definition of interior fitting, which I’ve got
`here on slide 27, and let me just read it. It says it’s any auxiliary component
`in the passenger compartment which is mounted to the floor, ceiling, side
`walls, et cetera, and which projects into the passenger compartment. That
`definition is generic and broad and there’s no reason a television wouldn’t
`fall within that definition and the testimony of our expert is that one of
`ordinary skill would have understood it to include that definition.
`JUDGE TROCK: Did the FRA provide a definition for interior
`fitting?
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`MR. CHAPMAN: That’s the definition that we’ve got here on slide
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`27.
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`JUDGE TROCK: Okay. So is your expert reading from the FRA
`here or where is this coming from?
`MR. CHAPMAN: I’m sorry. The quote is from -- I have a cite to our
`declaration here where he in turn quotes the definition that’s in the FRA
`rule.
`
`JUDGE TROCK: Okay. So where would I find that quotation in the
`
`rule?
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`MR. CHAPMAN: I just have to check the paragraph in his
`declaration but --
`JUDGE TROCK: That’s fine. You can give it to us later, that would
`be fine.
`MR. CHAPMAN: Yes. It’s in the supplemental declaration in
`paragraph 18 is where that would be located.
`JUDGE TROCK: So then how does this risk of fire that Patent
`Owner was raising affect this?
`MR. CHAPMAN: Affect this issue right here or just affect the --
`JUDGE TROCK: Well I believe their position is that it wouldn’t
`apply to television because there is a risk of fire, that it wouldn’t be
`considered to be an interior fitting because of this risk.
`MR. CHAPMAN: I believe that’s their position although, to be
`honest, that argument is a brand new argument that we saw for the first time
`in their demonstrative slides and if I understand the argument what they’re
`saying is that if you look at the requirement, and I’ve got it here on slide 26,
`it says, “To the extent possible interior fittings should be recessed or flush
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`mounted.” I think they’re now arguing, although this is new, that because it
`says to the extent possible you wouldn’t do it if doing so would cause a fire
`risk. Even though it’s a new argument I don’t think we dispute that. I don’t
`think anybody, including those of ordinary skill, would do something that
`would create a fire risk.
`This argument about how these televisions would get too hot and
`create a fire risk is also new and I’d like to discuss that in a moment, but the
`evidence on that issue is the evidence of our expert at his deposition. So let
`me just back up for two secs if you’ll indulge me.
`This is a new argument that they’ve never made in the Patent Owner
`response or the preliminary response. We submitted our reply and a
`supplemental declaration of our expert. At the deposition of the expert for
`his reply declaration he was asked questions about fire safety concerns.
`That’s the first time this issue appeared in the case. As a result, we never
`had an opportunity to respond in writing or to put in contrary evidence. All
`we have, and all the record that all of us have, is the deposition testimony of
`Mr. Malo and what he said on this point was two things.
`You know, Patent Owner is arguing that these fire safety concerns
`would discourage or even prevent one of ordinary skill from taking
`Namikawa’s LCD TV’s and making them substantially flush and the
`responses to that from Mr. Malo were no it wouldn’t for two reasons. No. 1,
`LCD TV’s don’t generate a lot of heat so there really isn’t going to be an
`issue with LCD TV’s in terms of overheating and making sure that you have
`to ventilate or cool them down. Second, even if there is heat that needs to be
`dissipated, one of ordinary skill in the art would plainly know how to
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`address those issues and Mr. Malo gave some testimony about various ways
`that you could do that.
`JUDGE LEE: Well let me interrupt you because this is snowballing.
`You’re claiming there is some new argument you heard for the first time not
`in the response and now you’re telling us how your expert is responding to
`it, and that would not be in any of your papers either, right?
`MR. CHAPMAN: The only submission in writing that has any of this
`is the Motion for Observations of Mr. Malo’s deposition and our response to
`that Motion for Observations and I think that’s a problem here. I think this
`argument should be considered to be waived. It was brought up too later.
`Neither side’s experts -- sorry.
`JUDGE LEE: (Indiscernible) an opportunity to bring it to our
`attention if the slides were to include some new argument. Did you know
`that? And you could call us within so many days of the hearing to complain
`about slides that include new arguments. Did you know that?
`MR. CHAPMAN: I did, Your Honor, but it wasn’t a new argument in
`the slides per se so much as a new argument in the case as of a month ago
`when the deposition happened.
`JUDGE LEE: I see. How did they raise the issue in the -- with regard
`to the deposition, did they put it in the observations?
`MR. CHAPMAN: Yes.
`JUDGE LEE: I don’t know have you seen it but we dismissed items 4
`through 6 yesterday. Is this part of items 4 through 6 --
`MR. CHAPMAN: Yes.
`JUDGE LEE: -- or something else?
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`MR. CHAPMAN: No. I believe 4 through 6 addressed these fire
`safety issues that are being raised.
`JUDGE TROCK: And so Patent Owner was examining your expert
`on his sup
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