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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`VALENCELL, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00315
`Patent 8,929,965 B2
`____________
`
`Record of Oral Hearing
`Held: February 27, 2018
`____________
`
`
`
`
`Before BRIAN J. McNAMARA, JAMES B. ARPIN, and SHEILA F.
`McSHANE, Administrative Patent Judges.
`
`
`
`
`

`

`Case IPR2017-00315
`Patent 8,929,965 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BYRON L. PICKARD, ESQUIRE
`MICHELLE K. HOLOUBEK, ESQUIRE
`MICHAEL D. SPECHT, ESQUIRE
`MARK CONSILVIO, ESQUIRE
`Sterne, Kessler, Goldstein & Fox
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JUSTIN B. KIMBLE, ESQUIRE
`JEFFREY BRAGALONE, ESQUIRE
`Bragalone Conroy, P.C.
`2200 Ross Avenue, Suite 4500W
`Dallas, Texas 75201-7924
`
`and
`
`R. SCOTT RHOADES, ESQUIRE
`Warren Rhoades
`1212 Corporate Drive, Suite 250
`Irving, Texas 75038
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, February
`
`27, 2018, commencing at 11:00 a.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
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`2
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`Case IPR2017-00315
`Patent 8,929,965 B2
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE McNAMARA: Good morning everybody. Today we are
`going to hear argument in several cases. Each argument will have a separate
`transcript. We will begin this morning with IPR2017-00315 and then we'll
`take a short break to allow the parties to set up and maybe change
`transcripts. And then we'll have a consolidated hearing in IPR 2017-00319
`and 00321. Then we will break for lunch and this afternoon we will have a
`consolidated hearing in IPR2017-00317 and 318.
`At each hearing the petitioner will present its case on all issues
`first. That will be its case in chief. Any remarks concerning motions to
`amend, motions to exclude or any other issues. We will then hear opposition
`from the patent owner, and then the petitioner will have a period of rebuttal
`for whatever amount of time it has reserved for rebuttal.
`For the first hearing, the IPR2017-00315, each side will receive a
`total of 20 minutes of argument time. For the second hearing,
`IPR2017-00319/321, each side will have a total of 40 minutes argument
`time. And then for the afternoon hearings, each side will have a total of 60
`minutes argument time.
`I would request that the parties not interrupt with objections and
`save any comments that you have for the next opportunity you have to
`address the Board.
`Okay. Also, I wanted to remind you that Judge Arpin is
`participating from our Denver facility, and so please speak clearly, identify
`any demonstratives you may be referring to and speak from the podium so
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`that we can be sure that the information and sound is transmitted to Judge
`Arpin.
`
`Could I begin with the petitioner and have counsel please introduce
`themselves.
`MR. PICKARD: Good morning. Byron Pickard on behalf of
`petitioners. With me today is Michael Specht, lead counsel, as well as
`Michelle Holoubek, backup counsel. And Mr. Mark Consilvio will be
`assisting at counsel table today.
`JUDGE McNAMARA: And for patent owner.
`MR. KIMBLE: Yes, Your Honor. Can I address you from here?
`JUDGE McNAMARA: Why don't you go to the podium just to
`make sure.
`MR. KIMBLE: I'm Justin Kimble, lead counsel for patent owner.
`With me are backup counsel, Jeff Bragalone, Jon Rastegar, Bill Kennedy
`and also Scott Rhoades. Scott Rhoades is going to be addressing the
`alternative motions to amend for patent owner. And then also with us is
`client representative Dr. Steven LeBoeuf, who is one of the inventors on the
`patents today and also the president of Valencell. Thank you, Your Honor.
`JUDGE McNAMARA: Well, welcome to the Patent Trial and
`Appeal Board. As I said, we will begin with IPR2017-00315. So please
`proceed, and let me know, counsel, if you have any time you want to reserve
`for rebuttal.
`MR. PICKARD: Yes, we would like to reserve five minutes for
`rebuttal.
`JUDGE McNAMARA: So I will set your timer to 15 minutes.
`Please proceed when you are ready.
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`
`MR. PICKARD: Thank you. May it please the Board, the patents
`that are at issue today cover a well-known, in many instances, decades-old
`technologies. And the result of that is that -- which are broadly claimed by
`the patents. And the upshot of that is it has put the patent owner in a very
`difficult position that has forced them to take some rather extreme positions
`with respect to the prior art.
`And if we turn to petitioner's slide 9, I would like to highlight one
`of those, an example of one such instance where the patent owner has been
`forced to take an extreme position. And there are essentially three
`fundamental issues in dispute on the Numaga grounds. I would like to talk
`about the first two today. Patent owner has disputed whether Numaga, in
`fact, discloses the claimed light guides of claims 1 and 12 in the patents.
`And it does so despite the fact that Numaga's express language recites light
`guide parts 21b and 22b.
`And if we look at petitioner's slide 13, we get a sense of what the
`patent owner's argument is. It is the patent owner's argument, as I
`understand it, that these light guide parts cannot be light guides within the
`meaning of the patent because they do not transmit light on a single path.
`There's no path at all, in their view.
`And if we look at -- I'm sorry, slide 11. This is from -- on the left
`is a picture from the Pollonini declaration. On the right is the patent owner's
`response. I'll just highlight for the Board's benefit here that what's shown on
`the right doesn't match the evidence on the left. The patent owner has taken
`the Pollonini annotated figure and exaggerated it. We see here more light
`paths and more extremely distributed light paths. But if we look at
`Pollonini, it appears to be the case that what patent owner says is because we
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`don't have a tightly focused transmission of light, then that cannot be a light
`guide.
`
`JUDGE McNAMARA: Counsel, may I ask you a quick question
`about light guides. Do light guides only refer to transmitting of light or does
`it also refer to light that's being directed on a path that's being received?
`MR. PICKARD: I think if you look at the patent, all it requires is
`that you have -- it's a material that transmits light from the light emitter to
`the skin. The claims require it be directly. I don't believe there's any
`argument in this case that the prior art fails to disclose the direct portion of
`that limitation.
`If I may go back to this, what the patent owner's argument
`essentially is here is that in the absence of some kind of housing or shielding
`material, the light guide part 21b wouldn't be sufficiently focused. The
`problem with that argument, as we look at the patent specification -- this is
`at column 37 of the patent, line 16 to 20. And we cite this in our reply at a
`page 8. And the patent says, it gives the example of the light guide
`embodiment that has clouding around it. And not only is there clouding
`around it in the same way that Numaga has the housing, but it's for the same
`purpose at least as patent owner understands Numaga. And we see here
`light guide 119 may be surrounded or partially surrounded by cloudy
`material 121. And then it goes on to say that is configured to block light
`from an external source from entering the light guide 119 and/or at least
`partially confine the light within the light guide.
`So the patent itself describes examples where some kind of
`housing or clouding is required. And it does so for the very same reason that
`they criticize the need for housing in Numaga.
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`
`JUDGE McNAMARA: Let me go back to the previous screen that
`you were on, the previous demonstrative.
`MR. PICKARD: Demonstrative 11.
`JUDGE McNAMARA: Yes. And in that case, the one from the
`Pollonini declaration does show at the bottom light being -- not so much
`being directed straight along the path at the bottom of the light transmitting
`device. How do you respond to that? Is there a light guide only in the part
`of it and then it distributes further out or is there something different?
`MR. PICKARD: If we can actually put up -- what's shown in slide
`11 is Figure 2 of Numaga. That's not what we relied on in our obviousness
`combination. There's a separate figure, Figure 1, which I'll put up for Your
`Honors. That's at petitioner slide 10. And the figure of Numaga is a little
`unclear, but that curved element 21b, that is the light guide that we've called
`out there. And then I want to address this notion of where I think you are
`talking about, that cone-shaped beam of light that they have annotated?
`JUDGE McNAMARA: That's correct. And the Pollonini
`declaration there at the bottom of the curved part, the light appears to be --
`MR. PICKARD: So what I think is a helpful comparison here is if
`we look at petitioner's slide 13. And if it's possible, it would be helpful to
`put up petitioner's slide 11 as well, but I want to focus first on petitioner's
`slide 13. And what's on the left side of this is a diagram that the patent
`owner has argued as illustrating their invention. And what we see there is
`essentially what's in Numaga. There's this light-emitting element E, this
`orange rectangle. There's the light guide which is that lightly shaded
`rectangle down there. And we see below it a cone-shaped beam of light that
`delivers the light in the emitter to the skin of the subject in that cone-shaped
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`pattern. If we look back at the Pollonini annotated figure that's shown in
`petitioner's slide 11, we see essentially the same thing, a light emitter at 21a,
`the light traverses the light guide part 21b, and we see a same cone-shaped
`array of light reaching the skin of the subject. The only difference is that we
`have a slightly wider field of view or cone-shaped pathway of light. But the
`patent, we now know from the substitute claims, they don't limit the field of
`view and the existing claims of the patent. There's nothing in the claims to
`do that. So we submit that Numaga expressly teaches consistent with the
`meaning of claim terms the claimed light guides of claims 1 and 12.
`I would like to turn to the second primary issue with the Numaga
`grounds, and that is whether the Numaga reference teaches that there's a
`distal free end. And here we have a claim construction issue. If we could go
`back to slide 9 just to reorient the Board here, this touches on independent
`claim 12. And I think there's two facets to the claim construction that the
`patent owner is arguing for here. One is the distal free end. Distal must
`mean the remote tip or the distal-most tip, and we'll talk about that when we
`visit the Fraden reference. But I think for relevant purposes here, they want
`to import into the claim the requirement that there be some unencumbered
`portion of the light guide. We think that the Board's construction is
`appropriate. But it does not need to resolve that issue, because even if we
`accept the patent owner's construction here, Numaga teaches an
`unencumbered light guide.
`If we could turn to petitioner's slide 15, and we see in Figure 1 is
`of Numaga the light guide 21b and 22b, the ends of those are unencumbered.
`They are exposed. And not only that, they protrude sufficiently, but they
`actually depress the wrist of the subject. This is a wrist-worn device. And
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`we see that in the description of Numaga at paragraph 9 where it talks about
`the light-emitting surface 21s, that's the outer edge of 21b. And it goes on
`and says, And the light-receiving surface 22s are exposed to the sensor's
`exteriors. That is, they are unencumbered. And the periphery of the tips of
`the light-emitting device 21 and the light-receiving device 22 protrude.
`They are entirely unencumbered by the adjacent housing, if you will. So we
`submit, of course, that Numaga teaches the distal free end limitation under
`any construction that's at play in this case.
`I would like to jump ahead to the Fraden grounds and deal again
`with the notion of the distal end and the distal free end, the primary
`argument that petitioner has raised on Fraden. Just to look at petitioner's
`slide 28, just to remind the panel of what Fraden looks like, what's shown
`here is a light guide which is this orange hashed section. This is the portion
`of the light guide that collects light and delivers it to the detector. It's the
`patent owner's argument that that can't be the claimed light guide because it
`doesn't reside on the distal end. And as the Board is aware, we have three
`ringed ribs 84 here. And even if we accept the notion that the distal free end
`has to be the tip-most or the remote-most portion of this device, we have a
`rib at the very end of Fraden's ear plug.
`They make the secondary argument that it can't be a light guide
`because it doesn't engage with the subject. They, I think, are pointing to the
`distance between the very bottom of what's shown as the ear canal and the
`very end of the distal tip. The problem with that is it ignores all of the
`contact points these ribs have with the ear canal. The claims don't specify
`how we measure engagement with respect to any given body part.
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`
`In the patent specification, if we look at column 36 of the patent,
`there's a construction of that that the Board has adopted. This is at column
`36, lines 16 to 20. And although the claims use the word "engage," the
`patent describes the fact that the word "engage" has a very broad meaning.
`And it says that, starting at line 16, as used herein the term "engage" is
`intended to mean that the distal end surface 119c may contact the skin of a
`person or may be closely adjacent to the skin of a person such as within 100
`microns to 3 or more millimeters.
`So despite the fact that we show actual contact of the figures of
`Fraden's ribs 84, even if we were to measure it to the end of the ear canal,
`that would be within the 3 or more millimeters that the patent describes.
`JUDGE McNAMARA: So is it your contention that the ribs
`themselves constitute distal free end?
`MR. PICKARD: We do. If we look at that innermost or the
`endmost rib that resides on the distal end, even as the patent owner points it
`out, it's that portion of Fraden collects light and delivers it back to a light
`detector.
`I would like to touch briefly on the secondary indicia arguments
`that the patent owner has raised. They put forth very thin testing data to
`support the notion of unexpected results. They essentially have three test
`subjects. Setting aside whether that's a sufficient amount of data to draw any
`conclusions, a couple of points, I think, bear mentioning. The unexpected
`result here, in patent owner's view, results from the fact that the light guides
`are in contact with the subject. But if you look at the case law Kennametal
`in order to have secondary indicia nonobviousness, the thing they point to,
`the claimed feature that generates the unexpected results has to be a novel
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`Case IPR2017-00315
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`one. And that's not novel. That's taught in Numaga. They have not argued
`that Numaga lacks that feature.
`And with that, I would like to turn briefly with my remaining time
`to the motion to amend. We've pointed out in our opposition a number of
`problems with the patent owner's claims. I want to touch first on the
`indefiniteness of them. They have added these limitations of the relative
`notion of widening and narrowing the field of view, and it is our position, of
`course, that that's an indefinite recitation. And I think if we look back at the
`language of Nautilus versus Biosig, we see there patent claims need to serve
`an important public notice function, and by having claim language that talks
`about using a flat surface to narrow the field or to widen the field, the
`problem is the skilled artisan can't look at that limitation and understand as
`compared to what. When we look at the language of Nautilus, the patent
`must be precise enough to afford clear notice of what is claimed thereby
`apprising the public of what is still open to them. Otherwise there would be
`a zone of uncertainty which enterprise and experimentation may enter only
`at the risk of infringement of claims. And here we have that.
`JUDGE ARPIN: Counselor, are we bound by Nautilus here or are
`we bound by Packard? These are substitute claims. They would be
`reviewed under the broadest reasonable construction standard. What is the
`case law that we have to rely on here?
`MR. PICKARD: I think Nautilus does control here. We start first
`with construing the claims, BRI would apply. Then we look at that under
`the BRI, would the public be fairly on notice of what is claimed and how
`would the skilled artisan, if they wanted to do experimentation or enter the
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`Case IPR2017-00315
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`marketplace, how could they with reasonable certainty know they were
`avoiding the scope of the claims.
`In addition to the indefiniteness issues, we do have prior art that
`teaches all of the claim limitations. The Numaga plus Haisley and then
`Numaga by itself, there's no argument in this case that either of those
`combinations fail to teach the elements. Instead we have a swear behind
`from the inventor.
`And I want to point out in addition to the testimonial problems, if
`we look at the claim charts that the inventor has put in, I just want to
`highlight a few things. It's their burden to show that this actual reduction to
`practice that they allege exists. They have got to show that all of the claim
`limits are present. And if we were to turn to Exhibit 2144, in particular
`page 3, we see a very lengthy recitation of claim limitations, including the
`notion that there is a narrowing field of view. If we look to the right, we see
`three conclusory annotations. You can't discern, I submit, from that picture
`whether we have a substantially flat face surface, and we have no indication
`about what the field of view of that light emitter, if it be such, would be. If
`we turn to the bottom of that cell at page 4 from Exhibit 2144, we see, in
`fact, that it doesn't appear to be a flat face surface, but it appears to be a
`curved surface.
`And I'm into my rebuttal time. There are similar conclusory
`problems with the claim charts for the other prototype that they have pointed
`to as an actual reduction to practice. The bottom line is that the patent
`owner just hasn't made out their case to do a sufficient swear behind to get
`behind the Numaga and Haisley reference, and they cannot overcome that
`unpatentability showing.
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`Case IPR2017-00315
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`
`JUDGE McNAMARA: Two quick questions for you. First, does
`it matter whether we apply -- to get to the same result or a different result if
`we apply Nautilus or Packard?
`MR. PICKARD: You get to the same place. And the problem is
`fundamentally that it's a comparative claim. We cite to Dr. Pollonini's
`testimony in our opposition. It's at page 125 of his deposition. He agrees
`that in order to know whether we have a narrowing or widening field of
`view, you have to have a point of comparison. The patent doesn't describe
`what that point of comparison would be. Nor do the claims recite one.
`JUDGE McNAMARA: And one other question. There's an
`argument on the motion to amend that Numaga doesn't disclose a
`substantially flat-faced surface which is, I believe, the limitation that's being
`added into the motion into the substitute claim, because it has a protrusion.
`And do you want to respond to that?
`MR. PICKARD: That's taught by Haisley. Haisley teaches that
`there was a known problem that protrusions could irritate or harm the skin of
`the subject, and so it offered a way to solve that problem by having a
`non-protruding flat-faced light guide parts, emitters and collectors.
`JUDGE McNAMARA: Okay. That sounds great. Thank you
`very much. I'll give you a little bit extra time. You'll have four minutes on
`your rebuttal.
`MR. KIMBLE: Your Honors, we have courtesy copies, hard
`copies of the demonstratives, if you would like them.
`JUDGE McNAMARA: Please, yeah, bring them up. And the
`court reporter has a copy of them; is that right?
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`Case IPR2017-00315
`Patent 8,929,965 B2
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`
`MR. KIMBLE: Yes, Your Honor. May it please the Court, Your
`Honors, I intend to reserve eight minutes of rebuttal -- or of time for my
`co-counsel to address the motions to amend.
`JUDGE McNAMARA: You have 20 minutes. You can use them
`any way you want. Just keep an eye on the clock.
`MR. KIMBLE: Thank you, Honor. All right, there's several
`primary reasons why patent owner wins in this case. The first is that
`Numaga doesn't disclose the light guide as that term has been construed by
`the Board and as required by both independent claims. The second is that
`Numaga doesn't disclose a distal free end as required by claim 12. The third
`is that Fraden does not disclose a second light guide with a distal end or a
`distal free end, for that matter, that's configured to engage the body of the
`subject. The last part of that is what's important, configured to engage the
`body of the subject.
`Also, I don't think we'll get to these, but we also believe that
`petitioners's combinations improperly use the claims as a roadmap to
`combine the references, indicating hindsight bias. And finally, we do
`believe that the secondary considerations, the evidence we've presented of
`unexpected results is sufficient and would, to the extent that there was a
`determination of obviousness, be sufficient to overcome that obviousness
`finding.
`Okay. I want to start with the secondary considerations, actually.
`And just briefly, Valencell is a company founded in 2006 by three Ph.D.
`electrical engineers. Their technology has won numerous awards. This is in
`the record, has been licensed repeatedly. That's in the record. What I want
`to focus on today is some of the -- it is a particular aspect of their
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`Case IPR2017-00315
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`inventiveness as relates to the '965 patent. And what that is is that the bête
`noire, really, of this health monitoring is noise and how to deal with noise.
`And people have been trying to deal with noise for a long time. However --
`and this is reflected in the record. This is reflected in petitioner's exhibits,
`Exhibit 2011. And they talk about how to deal with it is to just bring more
`light. If you get more light, you'll get more -- you'll get noise but you'll get
`more light back, more data. And that was the approach before the '965
`patent. And that's described in Exhibit 2011, as described on slide -- I'm on
`slide, sorry for Judge Arpin, slide 4.
`Now, Valencell did something different. Now I'm on slide 5.
`What they did is they said we are going to focus, we are going to deliver
`light to a particular part of the body. We are going to deliver less light, but
`we are going to deliver it to specific parts of the body and thereby minimize
`the signal-to-noise ratio. That's the goal, minimizing the signal-to-noise
`ratio. And we have a depiction here on slide 5 that shows how they did that.
`And so on the left we have these light guides depicted, and what you see is
`that less light is delivered to the body and less light is received.
`And that's contrary to thinking, well, if I'm getting less light back,
`how is this thing going to work better? Well, in fact, Valencell did some
`tests which they have authenticated and which our experts opined about that
`shows that this was unexpected but in fact, did improve signal-to-noise ratio.
`We tested two devices or Valencell tested two devices, one of which did not
`have the light guides configured to engage the body.
`I'm on slide now 6. And it is SM2, as we call it for simplicity, on
`the right side of those two figures. And that's SM2 looks a little bit like
`Figure 24A from the '965 patent.
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`So what the tests showed was first -- now I'm on slide 7. So they
`showed the vast majority of light is noise. So again, this is the problem.
`They also demonstrated that using the light guide on the emitter reduced the
`light leaving the sensor. Less light left the sensor. In addition, less light was
`received or less light -- sorry. In the first instance less light left the emitter.
`Less light was also received by the detector, both in terms of total light, DC,
`but also in terms of AC, which is the good light, if you will. However,
`notwithstanding the fact that less light was received, the signal-to-noise
`ratio, the AC over DC, was better.
`And so this was one of the things that Valencell figured out and
`that is depicted in the '965 patent, and in particular, with the claim
`limitations about light guides being configured to engage the body of the
`subject. So again, this was contrary to thinking at the time.
`JUDGE McNAMARA: I think I asked this question of petitioner's
`counsel as well. Light guides, is a light guide only on the transmitting side
`or is it on the receiving side as well?
`MR. KIMBLE: Both.
`JUDGE McNAMARA: Okay. And so as I recall, on, I think it's
`around page 19 of your patent owner response, you referred to the light
`shielding tube 26 which is to ensure that light from emitting device 21 is not
`incident on the light receiving device 22. Why isn't that shielding tube 26 a
`light guide?
`MR. KIMBLE: So I'll move forward to slide -- I think my slide 9
`depicts this. You are looking at Numaga, and in particular Figure 2; is that
`right, Your Honor?
`JUDGE McNAMARA: That's correct.
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`MR. KIMBLE: So this is interesting. So first of all, my
`understanding has not been that Apple has contended that that particular
`component discloses the light guide in this case. Now, it is true, I think, that
`Numaga describes that a problem with this was that light would escape the
`light emitter because it's escaping in all directions, not along a path, and
`some of it would enter that tube. So I think it may be. I'm considering this
`as I sit here, but it may be that that could potentially be described a light
`guide or having some sort of a function like that. Again, that's not my
`understanding of what the argument has been.
`JUDGE McNAMARA: I understand that, but I'm looking at that
`and I'm very curious as to why that's not a light guide the way we've
`construed the term.
`MR. KIMBLE: Yes, sir. Your Honor, so there's two -- they are
`depicted in white there. There's two layers, right, and you're looking at the
`second one up, am I correct?
`JUDGE McNAMARA: I'm looking at your patent owner response
`which refers to light shielding tube 26, and I'm trying to figure out why light
`shielding tube 26 is not a light guide.
`MR. KIMBLE: The reason I asked for that clarification, Your
`Honor, is because that shielding tube is not engaging the body. So to the
`extent that that -- it may be a light guide, but it's not the claimed light guide.
`JUDGE McNAMARA: All right. That's what I wanted to know.
`Thank you.
`MR. KIMBLE: So moving on, I alluded to this a minute ago, these
`light emitters, and that's what they are called, they are light emitters, they
`emit light in all directions. I'm going to move on to slide 10. And our
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`expert confirms this, that these are essentially LEDs. Numaga says that
`these parts are to protect the emitter. They are not there to guide light. They
`are housing really. So there's no effect of taking the light from the emitter to
`the body. They are just around it and light goes in all directions. And that
`just doesn't meet the Board's construction.
`JUDGE McNAMARA: Well, let me ask you another question
`about that. Even if the function that's disclosed is to protect the device,
`doesn't the fact that the device is surrounded by the housing guide the light
`in a particular direction unless it were a transparent housing?
`MR. KIMBLE: So I think there is a distinction. I think that the
`light guide part, the one that Apple has contended throughout as the light
`guide, doesn't direct light along the path. I think what Your Honor is asking
`is, well, what about some of the other components. So that hasn't been the
`argument, that the surrounding material acts as the light guide. And so we
`think that Apple is limited to the contention that the part 21b that is the light
`guide.
`
`JUDGE ARPIN: Counsel, referring to your slide 10, is that really
`accurate? You have lines of the red arrows going into, I think it's called the
`shell device, support member 27? Is that really accurate? Does it really go
`into those?
`MR. KIMBLE: Your Honor, that's a fair question. The intention
`wasn't to show that light goes into those but just that light emits in all
`directions, that the light guide part is not directing light along a path. This is
`in contrast to, for example, if you look back -- and there was a comment
`about this from petitioner. If you look back on our depiction on slide 5, the
`light guide -- so I'm looking at the left of the depiction. The light guides that
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`we show under the '965 invention, they are directing light from the emitter
`down through the light guide. That's purposeful, and that's what the patent is
`talking about. The Numaga reference is doing no such thing. It just lets
`light spread wherever in terms of the part itself.
`I'm going to move on to distal free end briefly. So patent owner
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`does --
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`JUDGE ARPIN: Counsel, before you do that, is the light guide
`and the distal free end, are those the only claim construction terms remaining
`in dispute? There were other terms that we proposed constructions for and
`petitioner proposed constructions for in the DI, but are the only remaining
`claim construction issues those two terms?
`MR. KIMBLE: I believe that's right. In fact, light guide I didn't
`think of as in dispute. But distal free end certainly is.
`JUDGE ARPIN: Thank you very much, counsel. Please continue.
`MR. KIMBLE: So distal free end, we do think that the Board's
`preliminary construction was incorrect. We think that distal free end has to
`mean something different than just distal end. It has to be more th