UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FLIR SYSTEMS, INC. and
`FLIR MARITIME US, INC. (F/K/A RAYMARINE, INC.),
`Petitioners,
`
`v.
`
`GARMIN SWITZERLAND GmbH,
`Patent Owner.
`____________
`
`Case IPR2017-00946
`Patent 7,268,703 B1
`____________
`
`Record of Oral Hearing
`Held: April 11, 2018
`____________
`
`
`
`
`
`
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`
`
`
`
`Before JUSTIN T. ARBES, THOMAS L. GIANNETTI, and SCOTT B.
`HOWARD, Administrative Patent Judges.
`
`
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FLIR SYSTEMS, INC. and
`FLIR MARITIME US, INC. (F/K/A RAYMARINE, INC.),
`Petitioners,
`
`v.
`
`GARMIN SWITZERLAND GmbH,
`Patent Owner.
`____________
`
`Case IPR2017-00946
`Patent 7,268,703 B1
`____________
`
`Record of Oral Hearing
`Held: April 11, 2018
`____________
`
`
`
`
`
`
`
`
`
`
`
`Before JUSTIN T. ARBES, THOMAS L. GIANNETTI, and SCOTT B.
`HOWARD, Administrative Patent Judges.
`
`
`
`
`
`
`Case IPR2017-00946
`Patent 7,268,703 B1
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BRIAN E. FERGUSON, ESQUIRE
`STEPHEN BOSCO, ESQUIRE
`Weil, Gotshal & Manges, LLP
`2001 M Street, N.W.
`Suite 600
`Washington, D.C. 20036
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JENNIFER C. BAILEY, ESQUIRE
`ADAM P. SEITZ, ESQUIRE
`Erise I.P.
`7015 College Boulevard
`Suite 700
`Overland Park, Kansas 66211
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday, April
`
`11, 2018, commencing at 10:00 a.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
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`Case IPR2017-00946
`Patent 7,268,703 B1
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`P R O C E E D I N G S
`- - - - -
`JUDGE HOWARD: This is an oral hearing in case IPR2017-0946
`between petitioner, FLIR Systems, Inc., and FLIR Maritime, Inc., formerly
`known as Raymarine, Inc., and the owner of U.S. patent 7,268,703, Garmin
`Switzerland GmbH.
`Just a few administrative matters before we begin. If you wish to
`discuss any demonstratives today, please describe the slides you present by
`number, which will make the transcript easier for us to read and help us to
`find them when going over it. As per our order, you know that each party
`has 45 minutes to present their argument. Because petitioner has the burden
`to show unpatentability of the original claims, petitioner will proceed first
`followed by Garmin. Petitioner may reserve rebuttal time but may only use
`its rebuttal time to rebut patent owner's arguments. And because patent
`owner has filed a contingent motion to amend and it has proposed substitute
`claims, patent owner may also reserve rebuttal time but that time being only
`limited to rebutting petitioner's arguments relating to the motion to amend.
`At this time we would like counsel to introduce themselves, and
`we'll begin with petitioner, please.
`MR. FERGUSON: Good morning, Your Honors. Brian Ferguson
`on behalf of petitioners. With me is Stephen Bosco.
`JUDGE HOWARD: And for patent owner.
`MS. BAILEY: Good morning. My name is Jennifer Bailey. With
`me today is Adam Seitz, my colleague. We are from the law firm of Erise,
`IP, and also have with us David Ayres, who is in-house counsel and
`associate general counsel for Garmin.
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`JUDGE HOWARD: As for any objections that you might have
`during the hearing, we ask that you not interrupt each other during the
`proceedings. If so, please save them for your argument time and we'll
`address them then.
`Petitioner, how much time would you like to reserve?
`MR. FERGUSON: I'll reserve 15 minutes, Your Honor.
`JUDGE HOWARD: And patent owner?
`MS. BAILEY: Three minutes, Your Honor.
`JUDGE HOWARD: Petitioner, you may begin.
`MR. FERGUSON: Thank you, Your Honor. I would like to start
`on slide 3 which is simply an overview of what we believe the issues are.
`There are actually very few issues that have been contested here. In
`particular with respect to the prior art that FLIR has asserted, there's no
`dispute that it qualifies as prior art. Garmin has not disputed that there is a
`motivation to combine the two primary references, de Jong and Tetley.
`Garmin has not argued separately for the patentability of any of the
`dependent claims. So they rise or fall with the independent claims. And at
`least with respect to what Garmin has previously called the critical limitation
`in these claims, the identification of nonuser-selected waypoints, Garmin has
`not contested that de Jong's marine route calculation algorithm does indeed
`identify nonuser-selected waypoints.
`So what I would like to do is do an overview of de Jong. And I'll
`start with the algorithm itself. This is de Jong's algorithm. It's on slide 20.
`And I want to just go through very briefly a couple of the key elements of
`the algorithm. The first, as we've highlighted, is the sailing order. Now, the
`sailing order is the information that the user of the device or the algorithm
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`will input into the algorithm itself. The sailing order, as we show on slide
`21, has two components to it. It has the mission components and then it has
`the ship's characters. On slide 22, we see that the mission component
`includes, amongst other things, the position of departure and the position of
`destination. In other words, the starting point for the route and the ending
`point for the route.
`The mission characteristics -- excuse me, the ship characteristics
`which are on slide 23 include information about the boat itself. And this
`information is used, for example, to determine the sufficient water depth or
`the sufficient minimum water depth that is required in order for this
`particular boat to have safe passage through a particular waterway. So this
`is the information that a user would put into the algorithm in order for the
`algorithm to generate a safe route.
`The next component I want to discuss briefly is the ENCs. This is
`the database component of the algorithms. This is on slide 24. ENC stands
`for electronic nautical chart, and these are effectively electronic versions of
`the traditional paper charts that navigators have used for literally thousands
`of years. In this case, the electronic nautical chart includes information
`about the characteristics of a particular waterway. And in particular the one
`we focused on is the depth, the water depth at a particular point in the
`geographic area that is represented by the chart. And as we show on slide
`25, water depth is, in fact, shown and implemented in the ENCs that are used
`in de Jong's algorithm.
`So we go to slide 27 and I'll talk about the network filter algorithm.
`So the portion here is the portion of the algorithm where it will determine
`whether or not a particular segment of a route has issues such that it should
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`not be included in a route, and in particular water depth. It discusses the fact
`that the depth of a passage, if the water depth is not enough, then this
`particular segment of the route will be eliminated from consideration with
`respect to generating the ultimate route to be traversed.
`Now, we know from slide 28 that de Jong extensively tested his
`algorithm. This was the test area that he created to test it. In particular, he
`ran a number of route calculations from different starting points and
`different ending points. I'll show a few of those now. On slide 30 this is his
`test case 3-1. And it's a little bit hard to see on the screen, but we see at the
`top that he inputted a starting route point. That's route point 27. And he
`entered an end point or the user would enter an end point, and it's route point
`68. And then the algorithm would generate routes that would start from the
`start point and end at the end point, 27 to 68, and in between the algorithm,
`not the user, but the algorithm would choose nonuser-selected waypoints
`that would generate the best course between a starting point and the ending
`point.
`
`JUDGE GIANNETTI: Counsel, I noticed you used the plural
`there. You said number of routes. Is that what it does? It doesn't
`specifically give you a route. It gives you a choice; is that right?
`MR. FERGUSON: In this particular example, that's correct, Your
`Honor. This example in test case 3-1, it provided a number of options that
`the user could then choose in terms of which one he or she decided would be
`the one that they wanted to sail. Now, obviously, we don't believe that that
`is excluded from the scope of the claims. The claims do not require that
`only a singular route be calculated. But in other examples --
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`JUDGE GIANNETTI: And you are relying on this test mode of
`de Jong; is that correct?
`MR. FERGUSON: We are relying on the test results as showing
`that, in fact, the de Jong algorithm chooses nonuser-selected waypoints. In
`other words -- and we're looking at route 1 or the rank 1, for example, the
`waypoints between 27 and 68 were not chosen by the user. These were the
`waypoints that were chosen by the algorithm. So that falls precisely within
`the scope of all of the independent claims which require that the algorithm
`chooses the waypoints. Not the user.
`JUDGE GIANNETTI: As I understand it, that's not the patent
`owner's view of the claims; is that correct?
`MR. FERGUSON: I don't believe the patent owner has contested
`that the algorithm has to choose the waypoints. Perhaps I don't understand
`your question.
`JUDGE GIANNETTI: That was my question.
`MR. FERGUSON: No, I don't believe that there's any dispute that
`the claims require that the algorithm choose intermediate waypoints between
`the start point and the end point. Not the user. That was the whole idea. It
`was to take the choice of waypoints out of the hands of the user because
`sometimes the user may overlook that there's a particular segment of a route
`where, for example, the water depth may not be enough. So this allows a
`computer to do the choosing as opposed to the user.
`JUDGE GIANNETTI: What is the basis for the ranking in
`de Jong?
`MR. FERGUSON: It depends. So it will depend on how -- if
`de Jong decided that he wanted to add in what he called the multiple criteria.
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`And this can include a number of things such as what is more important to
`the user: Is it more important that they get there in the fastest time possible
`or is it more important that they get there in the least amount of nautical
`miles, for example. Other things that he chose to input were things like are
`there any speed limits, are there issues with respect to the possibility of a
`particular segment having piracy risk. So that's how this particular
`algorithm, if it's run to its entirety, will decide which routes are ranked best.
`Now, in this particular instance, there are a number of ranks
`provided. However, this is not the only example. We have --
`JUDGE ARBES: Counsel, before you move on to the next
`example, can I ask you a question about this? All of the routes that are
`shown there were part of the original dataset, correct? These are routes that
`were filtered out from the original dataset of a lot of routes as the ones that
`are navigable, right?
`MR. FERGUSON: That's correct, Your Honor. If I go back to
`here, this is the test case, every single possible route that would include all
`of the waypoints that are within that map is a possible route that could be
`calculated. So what the algorithm does is it takes all of that information and
`synthesizes it down, essentially, to where it will choose the route that will
`best meet the criteria that the user wishes to avoid, for example.
`JUDGE ARBES: So I have a large set of routes and I filter that
`down into a smaller set. I'm not changing any of the original routes. I'm just
`picking and choosing certain ones from among the original dataset, right?
`MR. FERGUSON: You are choosing one route over the other,
`that's correct. But for example -- and I think I understand your question,
`Your Honor --
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`JUDGE ARBES: I would like to ask how this gets you to the
`rerouting limitation.
`MR. FERGUSON: I'll discuss that right now, Your Honor. So
`there are other test cases that de Jong teaches as well, and this is one. This is
`test case 1-1. Here the starting point was route point 1. The ending point
`was route point 68. So here all that he tested here is the shortest path. So he
`wants to find the shortest path between route point 1 and route point 68.
`And we see the results. You start at 1, you go to 2, 2 to 4 and so on until
`you hit your ending point, route point 68.
`And what he taught with respect to this is that this shows that the
`shortest path algorithm works well if there are no restrictions taken into
`account. So in other words, if we analogize this to driving in your car, I'm
`not going to take into account whether there are any streets that are only one
`way or whether there are perhaps construction going on. I just am looking at
`point A to point B and I'm trying to get the shortest route to get there.
`But that's not always sufficient and in particular in a boat, for
`example, because there will likely be issues with respect to, for example,
`water depth. So in test case 1-4, he ran the same algorithm except this time
`he imposed the filter restriction of water depth. In other words, are there any
`segments in the route where the water depth is insufficient? And as he
`determined here, we see that the segments with insufficient water depths are
`avoided. So this determined that when you use the filter algorithm in
`combination with the Dijkstra algorithm for shortest path, you get a route
`that is both the shortest possible route but that also avoids any areas where
`the water depth is not enough.
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`And to answer your question, when we look at slide 25 -- excuse
`me, this is 35, the route on the right, which is the route that has the water
`depth restrictions, is indeed a reroute of the first case where he did not
`account for water restrictions. It's a reroute because it starts at the same
`point; it ends at the same point; but there are certain segments within it that
`are different from the previous route.
`JUDGE GIANNETTI: Counsel, let me just go back to Judge
`Arbes' question earlier where I believe you answered a question which
`related to the selection of routes from a database. That's what's going on
`here, would you agree with that? You are selecting routes from a database?
`MR. FERGUSON: Right. So what happens, Your Honor, is that
`there are these maps, these ENCs that are loaded into the algorithm. They
`are -- they are not going to cover the entirety of the world, and so there are
`only segments of certain areas where you would say, okay, I'm going to be
`sailing within this map.
`JUDGE GIANNETTI: So what you are doing is you are imposing
`certain conditions on this set of routes, filters, if you will, and choosing
`certain routes based upon those conditions. Is that what's going on?
`MR. FERGUSON: That is what's going on.
`JUDGE GIANNETTI: How does that constitute rerouting? What
`is being rerouted there? Basically this is a selection process rather than a
`modification process.
`MR. FERGUSON: Even under Garmin's definition of rerouting,
`Garmin has to define rerouting, even if we use their definition, as a portion
`of a route that is different from a portion -- excuse me, at least a portion of a
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`route that is different from a previous route. Well, in this case, the previous
`route is the one on the left.
`JUDGE GIANNETTI: So you construe their definition as
`requiring or admitting of the possibility of comparing two different routes?
`MR. FERGUSON: Absolutely. And Your Honor, in terms of how
`this would work from a technical standpoint, that would be the only possible
`way it could be done. There is not the possibility, if Garmin wants to say
`there is, and I don't think there would be any possibility of infringement, but
`the way this works is that each map has a series of waypoints in it. And it's
`simply -- again, as we showed on the de Jong slide, it's an area where you
`have as many possible routes as could be generated from a particular area
`because there are only a certain number of waypoints within that map. And
`then all you are doing is you are taking out which routes do not meet the
`conditions that are in the claims called the preselected conditions.
`At the end of the day, this is -- the route on the right is a reroute of
`the route on the left because there is at least a portion of it that is changed
`from the original routing. So that, in terms of the construction of the claim,
`that falls right within the meaning of the claim.
`JUDGE HOWARD: Now, when test case 1.4 was generated, it
`didn't start with 1.1's final result and then modify it. It went and did the
`whole process all over again, if I understand what's happening correctly, and
`came up with a different route that you are calling a reroute.
`MR. FERGUSON: He ran the algorithm again, right, that's
`correct. But again, there's nothing in the claim language that says that we
`have to start with an existing route and then, like, modify it somehow by
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`changing certain portions of it. In fact, if you look at Figures, I think A, B
`and C, 4A, 4B and C of the patent, that's exactly what they show too.
`They show, for example -- let me see. I have got one slide that
`shows it. They have got the route that runs through the island and then a
`new route that goes around the island. And that's what they are calling
`routing and rerouting. It's the exact same thing that de Jong is doing here in
`test cases 1-1 and 1-4. There's no difference.
`JUDGE ARBES: Counsel, does de Jong disclose explicitly
`performing test case 1.1, coming up with a route, and then performing test
`case 1.4 and coming up with a different route, doing it in that sequence?
`MR. FERGUSON: He does, Your Honor. And I can pull that up.
`JUDGE ARBES: I would like to ask you a question about how the
`process works.
`MR. FERGUSON: Sure. Okay. This is the specific portion of
`de Jong. This is page 83 of de Jong where he discusses these test cases 1-1
`and 1-4.
`JUDGE GIANNETTI: Page 83, is that it?
`MR. FERGUSON: Yes, page 83.
`JUDGE GIANNETTI: Are you using the pages printed on the
`document or the pages that you have a --
`MR. FERGUSON: The exhibit page. So it's the Exhibit 105.083.
`So he talks about the first test case being run and he says it shows that the
`shortest path algorithm works well without any restrictions. And then he
`generates a second test case. And hopping ahead --
`JUDGE ARBES: Where does it say he does it in sequence, 1.1,
`then 1.2, then 1.3, then 1.4? Where does it say that?
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`MR. FERGUSON: I don't think it says that explicitly, Your
`Honor, but he certainly starts with test case 1-1. Just by the fact that it's
`number 1 would suggest that anything after that came after 1. So if we go
`from test case 1-1 to the next paragraph in the fourth test, test case 1-4, the
`depth filter is tested in eight segments in that route, in that first route, which
`has the shortest path without any restrictions. Now we are going to take into
`account the fact that there are depth restrictions that have to be accounted
`for.
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`JUDGE ARBES: But I could perform the algorithm under test
`case 1.4 without doing any of the other test cases, right?
`MR. FERGUSON: Correct. Yes.
`JUDGE ARBES: In other words, the performance of test case 1.4
`is not contingent or reliant on doing any of the other test cases, right?
`MR. FERGUSON: It is not. Although I don't think that that is
`relevant to the scope of the claims.
`JUDGE ARBES: I understand your position on claim
`interpretation. We can get to that next. But that's an important point,
`though, because if I'm performing these test cases completely independent of
`each other, how can I say that test case 1.4 is a reroute of something else, a
`route determined in a different test case?
`MR. FERGUSON: Because they have the exact same starting
`point, they have the exact same ending point, and there are portions of the
`second route that are different from the first route.
`JUDGE ARBES: Well, they certainly are different. The routes are
`different, I agree with you on that. But how is one changed from the other?
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`If they are totally independent of each other, how is the route determined in
`1.4 changed from the route determined in 1.1?
`MR. FERGUSON: I don't believe they are totally independent of
`each other, Your Honor, because in the two test cases they all start at harbor
`A. They all end at harbor B. None of the waypoints have physically
`changed location. The only thing that has changed is that now when he runs
`the algorithm the second time in test case 1-4, he's accounting for the fact
`that there may be restrictions along the way of some of the segments. And
`in particular, it's water depth that he's accounting for in test case 1-4. So
`instead of being able to go the shortest path the whole way, he has to make
`changes to the route to avoid those segments that have water depth
`problems.
`That is, if you look at the end result, as we showed on slide 35, if
`you look at the end result, they are going from the same starting point and
`the same ending point. It's the same physical geographic area. Nothing has
`changed except in some of the segments that are in test case 1-1, they violate
`a water depth restriction. So now he's accounting for that and he has to
`change the route. So it is a reroute of the first route because even under
`Garmin's construction of reroute, it is a route that has at least a portion that is
`different from the route that was originally calculated.
`JUDGE GIANNETTI: I think Judge Arbes' point, though, is if
`they are independent, how can you say that one changes the other?
`MR. FERGUSON: They are not independent, Your Honor. I don't
`believe that they are independent.
`JUDGE GIANNETTI: You said that they can be run -- one can be
`run without the other. So this would be like two different voyages. Voyage
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`number 1 takes one route and voyage number 2 takes a different route. They
`may be identical vessels, but those would be two different routes. Those
`wouldn't be a change. Those would be two different routes.
`MR. FERGUSON: I believe there is no difference between that
`and what is shown in the claim or the figures of the patent. In fact, if it's all
`right with Your Honors, let me jump up to the claim construction on this.
`This is the rerouting. So I will jump up to slide 46, just claim construction
`of rerouting.
`Let me get straight to that question. What we show on slide 48 is
`Figure 4A. Garmin says this is the first route. And it's starting at the first
`location and it's ending at the potential waypoint. There's a thick black line
`there in the middle. That's supposed to be the route, but there's an island in
`the way. So what do they show in Figure 4B is the same location as the
`starting point, the same ending point, which is the potential waypoint, except
`they have chosen waypoints around the edge so that it doesn't hit the island.
`That's the same thing as what de Jong's test cases show.
`JUDGE ARBES: Counsel, it may be the same end result in that
`the route that you get at the end is different than the route that you had at the
`beginning. It may be the same end result, but the process of getting there is
`different, right? I mean, column 8 of the challenged patent talks about
`recalculating course 403 relative to the original calculation of course 404.
`So you are recalculating relative to something else. That doesn't exist in
`de Jong, right?
`MR. FERGUSON: He certainly is recalculating test case 1-4
`relative to test case 1-1 because test case 1-1 runs the algorithm with only
`looking for the shortest route. In test case 1-4 he's running the algorithm
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`looking for the shortest route but also imposing the condition of insufficient
`water depth.
`JUDGE HOWARD: But if someone came around and got a new
`computer and put everything in and decided the very first thing they were
`going to do is test case 1-4. They weren't going to do test cases 1-1, 1-2,
`1-3. They'd come up with that same result that's on the screen for test case
`1-4, right?
`MR. FERGUSON: That's the beauty of the algorithm. You can
`run it any different number of ways and still get the same result. But this is
`a matter of what this teaches to a person of ordinary skill in the art. What it
`teaches is that if you want to run the algorithm first to only determine
`whether or not -- to only determine the shortest path, you can do that. But
`then you can also run it a second time to say, all right, now I have to take
`into account preselected conditions just like in the patent.
`JUDGE HOWARD: Is test case 1-1 really the fastest? If you look
`at what you have in the patent that you just put up, it showed the fastest as
`being the straight line between the starting point and the user-selected end
`point which happened to go over land. And if you did that in de Jong with
`the test case 1-1, shouldn't the fastest case still be from the starting point 1,
`the direct line to user-selected end point 68? And 1-1 is already, I guess, a
`route. I'm trying to -- they just don't seem to be -- the 1-1 and 1-4 don't seem
`to be connected to each other. It seems to be that you are doing the 1 to 68
`and you are just getting there two different ways.
`MR. FERGUSON: I think the difference -- obviously, de Jong, I
`think, is a more practical invention or algorithm at least because it's not
`going to obviously take a route that would run straight through physical
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`land, for example. But still there is a relationship between the two test cases
`because, again, they are at the same starting point, the same ending point.
`The second time the algorithm has been run, it's accounting for the water
`depth restriction.
`Let me -- I'm starting to run out of time. I did want to address the
`claim construction on rerouting. Now, the problem, we believe, with
`Garmin's construction is that they are not accounting for the fact that the
`claim requires -- this is claim 1 -- that you route a course that avoids the
`preselected conditions.
`JUDGE GIANNETTI: Counsel, what slide are you on?
`MR. FERGUSON: I'm sorry, I'm on slide 46. Thank you, Your
`Honor. The claim requires routing a course to avoid the preselected
`conditions. And then it requires rerouting the course to avoid the preselected
`conditions by identifying the nonuser-selected waypoints. Well, Garmin
`points to Figures 4A and 4B. In particular Garmin points to Figure 4A as
`being the original or the initial routing.
`JUDGE ARBES: Before you move on to that, can I ask one
`question about the claim language? You said that the claim language
`requires performing the algorithm to route a course then rerouting the
`course. Is that the proper way to read the claim? Because it seems to me
`that it says performing the algorithm to route a course between a first
`location and a potential waypoint, including these two particular steps,
`analyzing cartographic data and rerouting the course to avoid the preselected
`conditions. So aren't the steps of analyzing and rerouting part of the
`performing, given the including language?
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`MR. FERGUSON: That may well be, Your Honor, but then
`there's not then -- under that interpretation there's not a first route and a
`second route as Garmin interprets them in this IPR.
`JUDGE ARBES: Isn't that implicit from the word "rerouting"?
`Doesn't rerouting imply that there was a routing first?
`MR. FERGUSON: If we take the word in isolation, I think if you
`put R-E in front of a word, normally that means it's occurring a second time.
`But we have to look at a course in the context of the claim language. And if
`-- the way you interpret it, Your Honor, is actually the way that Garmin has
`interpreted it in litigation. Garmin has said in litigation that -- I'm on slide
`49 with reference to Exhibit 1028. This is their Markman brief: Far from
`excluding devices in which a singular route is calculated, the claims and
`specification embrace them.
`So Garmin, in litigation, has said that these claims can be met by
`only a single route being calculated. In fact, when the defendants in the
`litigation said that rerouting a course, the claim language cannot be met by a
`singular route being calculated, Garmin said there's no support for that
`construction. So if that is the Philips construction, then obviously it has to
`be at least the broadest reasonable interpretation as well. And therefore,
`Garmin, in litigation, has said that these claims can be met by a single route
`being calculated.
`It's the same in their infringement contentions that they provided
`us which are slides 51 and 52. There is no original route shown in the
`infringement contentions. There is only a single route that's shown as
`meeting the rerouting step.
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`JUDGE HOWARD: Counsel, you are at your 30 minutes with the
`15 minutes reserved.
`MR. FERGUSON: If I may, I would like to go for another five
`minutes because I do want to address the motion to amend.
`With respect to the motion to amend, I'm going to focus on the last
`step that is the proposed amendment which claims navigating the user.
`There are two problems that we see with this, and they both relate to
`Section 112. The first is Garmin's construction -- I'm on slide 74. Garmin's
`construction of navigation or navigating is the process of planning a course
`and directing a craft or vehicle along the course. If you substitute that into
`the claim language, it makes no logical sense.
`Slide 75, it would be planning a course and directing a craft or
`vehicle along the course from one place to another the user. That is
`essentially a nonsensical claim, and nonsensical claims should be invalidated
`under Section 112, paragraph 2. The public should not be required to guess
`as to what the meaning of this is. In this field, users are not navigated.
`Users do navigation and they use the devices to help them navigate. So
`that's problem number one.
`Problem number two --
`JUDGE GIANNETTI: Counsel, you think that that claim is so
`defective that a person of ordinary skill wouldn't be able to interpret that?
`MR. FERGUSON: Yes, that's exactly what our expert,
`Dr. Braasch, has said.
`JUDGE GIANNETTI: I know that may be what your expert said,
`but I would like to hear your answer.
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