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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AVER INFORMATION INC. and IPEVO, INC.,
`Petitioners,
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`v.
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`PATHWAY INNOVATIONS AND TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-02108
`Patent 8,508,751 B1
`___________
`
`Record of Oral Hearing
`Held: December 13, 2018
`____________
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`
`
`
`Before JONI Y. CHANG, THOMAS L. GIANNETTI, and
`NORMAN H. BEAMER, Administrative Patent Judges.
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`Case IPR2017-02108
`Patent 8,508,751 B1
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`
`BENJAMIN E. WEED, ESQUIRE
`KEVIN McCORMICK, ESQUIRE
`K&L Gates
`70 West Madison Street
`Suite 3100
`Chicago, Illinois 60602-4207
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`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`TREVOR CODDINGTON, Ph.D.
`DONNY SAMPORNA, ESQUIRE
`San Diego IP Law Group LLP
`12526 High Bluff Drive
`Suite 300
`San Diego, California 92130
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
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`December 13, 2018, commencing at 9:31 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-02108
`Patent 8,508,751 B1
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`P R O C E E D I N G S
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`JUDGE BEAMER: Good morning. This is IPR2017-2108, Aver
`Information and IPEVO, Inc. versus Pathway Innovations and Technologies.
`I'm Judge Norman Beamer. To my left is Judge Tom Giannetti and to my
`right Judge Joni Chang.
`Could the parties make their appearances.
`MR. WEED: Good morning, Your Honor. Ben Weed from K&L
`Gates on behalf of Petitioners and with me is lead counsel, Jackson Ho, and
`backup counsel, Kevin McCormick.
`JUDGE BEAMER: Thank you.
`MR. CODDINGTON: Good morning. I'm Trevor Coddington
`from San Diego IP Law Group representing the Patent Owner Pathway
`Innovations. With me is backup counsel, Donny Samporna.
`JUDGE BEAMER: Thank you. So each side of has 45 minutes.
`They can reserve some period of time less than half of that for rebuttal.
`Petitioner will go first and followed by Patent Owner. As we indicated in
`the most recent conduct of proceedings, we'll be dealing with the amended
`claims that were attached to the appendix to the Reply Brief. So if Petitioner
`is ready, then we'll commence.
`MR. WEED: And, Your Honors, if I may reserve 10 minutes,
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`please.
`
`JUDGE BEAMER: 10 minutes? Okay.
`MR. WEED: Correct.
`Good morning, Your Honors. As I mentioned, Ben Weed from
`K&L Gates for the Petitioners. We're here today to talk about the '751
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`patent, which is directed to document cameras like this Elmo here next to
`me. And on slide 2, we can see a little bit about kind of the overview of the
`'751 patent.
`But before we dive in, I want to set up a little bit of context
`because this application was filed for the first time in 2010, which is
`relatively late in kind of the miniaturization of electronics. And, in fact, one
`thing that I use to kind of place myself is where iPhones were at certain
`points in time, and in 2010 the iPhone 4 had just been released and that was
`the first iPhone that had both the rear-facing camera and the front-facing
`camera. So by that point by the time of the filing of the '751, miniature
`camera modules were certainly commercially available and viable and were
`used in mass production.
`So reading the '751 patent, if we look at the field of the invention
`here, I mentioned it's about document cameras, but I want to focus on the
`second part of the field of the invention where the patent says that it's about
`document cameras for capturing both real-time video and scanning high
`resolution still images.
`So one of the big issues in the case, I think particularly with regard
`to the unamended claims, is whether or not video is required and our
`position is the patent is about both still images and video. And so while
`video isn't required, it certainly could be covered. The claims are broad
`enough, though, to cover also capturing a series of still images.
`JUDGE BEAMER: And we're dealing with the amended claims.
`MR. WEED: There are two claims that were originally challenged
`that have not been amended, Claims 18 and 20.
`JUDGE BEAMER: Correct.
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`MR. WEED: Right. So my plan was to talk about those claims
`first and then move to the amended claims, unless the Board would prefer to
`do it in another order.
`On slide number 3 we've got some excerpts from the background
`of the '751 patent and, again, what this is showing here is the inventors were
`referring to the state of the art as of the filing of the '751 patent. We talked a
`lot in the Reply about the Gann reference, which is the '460 patent, Exhibit
`1007, described in the middle callout on slide 3, and we also talked about the
`Slatter reference, which is the '415 patent, Exhibit 1021 in the bottom
`column on slide 3.
`And both of those references talk about the applicability of video
`in the document camera space. And, in particular, Slatter, the '415 patent,
`was actually filed 10 years before the original application for the '751 patent.
`And even Slatter 10 years earlier recognizes that video cameras were usable
`in the context of document cameras.
`On slide 4 we have reproduced a passage from Dr. Rodriguez,
`Patent Owner's expert, and here Dr. Rodriguez agrees with Dr. Madisetti
`about the level of skill in the art. And, again, we're talking here about 2010,
`so this is not a -- this is relatively late in the game. Dr. Rodriguez agrees
`with Dr. Madisetti and says that a person of skill in the art would have had at
`least one year of direct technical experience in capturing real-time video
`with zooming capability via a portable document camera.
`So a person of skill in the art already has experience with
`document cameras and that's why it's not surprising that when we look at
`Morichika, the primary reference for Claims 18 and 20, it renders most of
`the limitations anticipated and renders the whole claim obvious.
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`And now, Judge Beamer, to your question on slide 5, we have
`reproduced the two claims that are still at issue from the original patent. It's
`Claims 18 and 20. And just to briefly address the claim construction issue
`that I alluded to, the Patent Owner proposes that video must be required.
`They say that the series of real-time images limitation in the middle of the
`Claim 18 there requires video.
`And I wanted to point out that a lot of their arguments in the Patent
`Owner Response focus on language that's not present in Claim 18. So, for
`example, the Patent Owner argued in the Patent Owner Response about the
`claim phrase output video. And they said, hey, because output video has to
`be present, the input must also be video.
`Well, output video doesn't show up in Claim 18. And, in fact, the
`word video doesn't show up at all in Claim 18. They also argued some in
`the Patent Owner Response about Claim 8 language that said capturing a
`video image comprising a series of frame images, but, again, that language
`isn't --
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`JUDGE GIANNETTI: Counsel, I hear this argument, but isn't a
`video stream just a series of still images?
`MR. WEED: Correct, absolutely, and we're not saying that a video
`couldn't be covered here. What we're saying is all that's required is a series
`of real-time images, so there could be video, but it could also be a series of
`non-video images. That's the point. It's not a question of what's excluded.
`It's a question of what does it mean when it says series of real-time images
`under the broadest reasonable interpretation.
`JUDGE BEAMER: Well, is this claim referring to real-time
`images being output or being input? I don't see the limits to either.
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`MR. WEED: Correct. This claim, in particular, doesn't talk about
`what's output, so, again, a lot of the arguments the Patent Owner made for
`their claim construction argument was based on language in the other claims
`that have now been amended in a noncontingent fashion that talked about
`outputting video. Here, the series of real-time images is talking about input
`to the system. So the series of real-time images is something gathered by the
`system and processed.
`JUDGE BEAMER: Why isn't that the series of real-time images
`that are being output?
`MR. WEED: It very well may be, but this claim simply just
`doesn't address that point. It's not -- the scope of this claim doesn't specify
`what the output is. That's the issue.
`And then the other point I wanted to make on the claim
`construction arguments is they're arguing for an importation of this video
`limitation, but there's nothing in the intrinsic record and the Board noted this
`in the Institution Decision. There's nothing in the intrinsic record to require
`that. And even Dr. Rodriguez who Patent Owner relies on post-institution in
`support of this position, he wasn't even able to say that in all cases language
`like this means video.
`If you read the Patent Owner Response at page 10, the language
`Dr. Rodriguez uses is always couched. He says it's typically this or it may
`be that. He never says this term always means this. There's no evidence in
`the record to support a definition that would require importation of a
`requirement for video. And, again, it's not a question of whether video is
`covered. It's a question of whether the claim must be met by a system that
`can capture video.
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`JUDGE BEAMER: Are you going to be addressing the infinite
`focal length issue?
`MR. WEED: Yes. That was the first one I was going to address
`on the substance of Morichika. So at slide 7 of the presentation we have just
`a summary of Morichika just to orient ourselves to what we're talking about.
`Morichika is a document camera system. Morichika was our primary
`reference because the focus pre-IPR had always been on this reduction of
`resolution feature of the claims. Morichika discloses that and Patent Owner
`doesn't dispute that.
`So just an introduction to Morichika and, Judge Beamer, as you
`mentioned, the Board initially denied institution pre-SAS on the basis of the
`optics having an infinite focal length limitation. And what the Board
`actually said in the Decision on Institution at page 24 is you said "Morichika
`discloses a lens that focuses the image on a CCD array and, thus, has a finite
`focal length." And I think the analysis was this is reflective of the plain and
`ordinary meaning of optics having infinite focal length.
`I don't think anybody disputes that. Nobody disputes that optics
`having an infinite focal length means you can't focus the image on a
`non-infinite device such as a CCD. So the question here really is, is that an
`appropriate construction in view of the intrinsic record of this patent.
`And this is an interesting case because here the Patent Owner
`proposes a construction of this term but doesn't dispute whether the art meets
`that construction. So normally in my experience what happens is a Patent
`Owner says this should be construed from broad to narrow, and when you
`construe it that way the prior art is deficient.
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`But what's happened here is the Patent Owner has proposed a
`construction of optics having a focal range ensuring objects appear focused,
`even when located one meter or more away from the digital image sensing
`unit, but they don't argue the art is deficient. They can see that that's exactly
`what Morichika shows, and we can see it here on slide 8. It's a document
`camera.
`So the fact that the camera is located about a meter from the
`material being imaged is met by the Patent Owner's construction. So I think
`we're in a situation here where the Patent Owner is trying to argue a
`construction, they need to prove infringement, and we put forth in the
`Petition sort of the back and forth between the parties on this issue.
`So the question comes down to -- for this panel I think the question
`comes down to what is the construction of this term under BRI? And I think
`there's sort of two ways to do it. One is there is no dispute that if Patent
`Owner's construction is adopted wholesale, it doesn't change the obviousness
`inquiry. This claim limitation would be met.
`If Patent Owner's construction is reasonable, in other words, if
`Patent Owner's construction falls within the BRI, then, again, there's no
`dispute that the claims are rendered obvious by the prior art, at least as to
`this limitation. We'll get to the other dispute in a second.
`If the Board's construction governs, and I think the Board's
`construction is the correct plain and ordinary meaning construction, I'm not
`sure that it's supported explicitly by the intrinsic record. But if the Board's
`construction governs, then I think no camera imaging system like this could
`be covered because the whole point is you focus the image of the larger
`item, the piece of paper on a smaller CCD.
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`So we're in kind of a weird position where the Board's construction
`might actually exclude all the embodiments of the '751 patent, and I would
`propose that the easiest way to deal with this is simply to find that the Patent
`Owner's construction, which I think they'll probably say tracks the intrinsic
`record, it comes from the spec, is at least reasonable and is at least within the
`broadest reasonable interpretation. And if that's the finding, then there's no
`dispute that the prior art meets this limitation. So that's -- it's kind of a weird
`situation, because like I said there is a construction being argued by the
`Patent Owner that's not a source for an argument of patentability.
`JUDGE BEAMER: Isn't this a simple case of the drafter or the
`claim drafter just made a mistake?
`MR. WEED: Very possibly, very possibly, but, again, what we're
`concerned about and as the panel has seen from I think it was Exhibit 1016,
`which is the E-mail correspondence on this point, we went to the Patent
`Owner and said under the construction of the ITC, which is similar to what
`the Board has done here, our device can't meet these claims. And they came
`back and said, well, if you cover your lens with a piece of glass, which you
`do, a protective piece of glass, then you meet our claims, and that's what we
`did in the Petition. We showed in the Petition that it was obvious to cover a
`CCD with a piece of glass. We have a reference that says that. And so now
`the focus has shifted a bit, pardon the pun, on what this term means, but our
`concern is that a construction like the Board's may not stick and may have
`impact down the road on the infringement case.
`JUDGE BEAMER: Well, the optics having an infinite focal
`language refers to the entire optics, doesn't that --
`MR. WEED: Correct, and that was the basis --
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`JUDGE BEAMER: Not s portion of it --
`MR. WEED: Correct, and that was the basis for our assertion that
`our devices couldn't be covered, and I know the panel doesn't get into
`infringement, but I'm just giving context for why the Petition was set out the
`way that it was.
`So the Petition was basically set up if the claims can be met by a
`piece of glass covering a CCD and the lens assembly like what the Patent
`Owner asserted they're obvious. We put that argument in evidence in the
`Petition. There was no dispute. We said our first position, though, in that
`E-mail, Exhibit 1016, was if the construction of infinite focal length is
`something like what the Board came to, we can't meet it because we have a
`lens. We focus the light from the document onto the CCD. And just for the
`panel's reference, I actually reproduced on slide 9 some of the arguments
`from the Petition and the Reply on this point, if you're looking for a
`reference point.
`One other point I'll make on this and then I'll move on to the
`dispute Patent Owner raises about patentability is that the '751 patent at
`column 7, lines 59 to 63, is part of what the Patent Owner points to as
`supporting this limitation, as explaining what infinite focal length means.
`And if we look at that passage, which I don't have on a slide, but if we look
`at that passage it says --
`JUDGE GIANNETTI: Counsel, where are you?
`MR. WEED: I'm sorry, column 7, lines 59 to 63 of the '751 patent.
`JUDGE GIANNETTI: Lines 59 through 63.
`MR. WEED: Correct.
`JUDGE GIANNETTI: Okay.
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`MR. WEED: And in the fourth line down of that paragraph, it
`starts -- there's a sentence that starts with instead. And what it says is,
`instead, an externally attached apparatus can use the very light weight
`optical components such as one might find in a camera equipped mobile
`telephone or an infinite focal length digital camera.
`So the Patent Owner points to this in support of what it means to
`be infinite focal length, but I think what we can actually take from this is,
`this is a concession that infinite focal length digital cameras, whatever they
`meant when they wrote the application were part of the prior art. That
`wasn't the invention when they wrote the application, so it may be that the
`attorney drafting the claims made a mistake or wrote claims that have a very
`peculiar scope.
`But what they thought they were talking about was some kind of
`off-the-shelf digital camera device which was being integrated into this
`system, and there's a fair amount of Federal Circuit case law that talks about
`the fact that a concession on the prior art is an admission for obviousness
`purposes. For example, the WesternGeco case, 889 F.3d 1308 at 1329,
`which is a 2018 Fed Circuit case says, a statement in the patent that
`something is in the prior art is binding on the applicant and patentee for
`determinations of anticipation and obviousness. So, again, this gets back to
`my original point that it may not matter what the construction is here
`because this is a statement that whatever it meant to be infinite focal length,
`that was a prior art device. That was a prior art off-the-shelf piece of
`hardware.
`I'll skip ahead a little bit now. Again, still on Claims 18 and 20,
`which are the original claims of the '751 patent. And on slide 17 of our
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`presentation, we have excerpted the entirety of Patent Owner's rebuttal to the
`Claim 18 invalidity position. So, again, you can see here they're not taking
`issue with the infinite focal length limitation. What they are taking issue
`with, and it's highlighted in yellow, is the failing in their view of Morichika's
`camera device 4 to be a video camera.
`And so the first hurdle they have to get over for this to even matter
`is the claims have to be limited to video or have to -- yeah, have to be
`limited to video. It can't cover a series of still images that don't themselves
`make up a video. This panel has already found that's incorrect. A prior
`panel in the '661 matter found that was incorrect in an IPR that was
`eventually settled. We don't think there's any basis to limit the claims to that
`issue or to that concept, but, again, we had seen what the Patent Owner
`argued previously and so in the Petition we talked about why it would have
`been obvious and we offered some evidence both from Dr. Madisetti and
`from Morichika itself about why that would be obvious.
`And I want to come back here quickly to Morichika on this point.
`I kind of skipped through it a minute ago. But if we go back to slide 7 of our
`presentation and I want to focus in on paragraph 65. It's Morichika which is
`cited in the Petition. And what paragraph 65 is talking about is sort of we've
`described all of what Morichika is about, we've described its image
`processing by this time and we're now kind of talking about other
`embodiments, other things Morichika could be about.
`And so in 65 what the Morichika inventors wrote is this kind of
`effect is not limited to a case where an image photographed by the camera
`device 4 is projected real-time. So our assessment of that is they're
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`summarizing that all the prior conversation was about real-time image
`processing.
`And that's important, because if you look at the '751 patent itself,
`column 3, lines 52 to 55, this is exactly how the inventors of the '751 patent
`describe their image processing. They say in the '751 patent, "manipulation
`in an amount of time short enough so that the manipulation step is not
`perceived by a user, i.e., in real-time." So in our view Morichika certainly
`renders obvious the concept of video. Dr. Madisetti explained that a little bit
`in his first declaration and much more in his second declaration, but that's
`particularly true when you look at Morichika's description of real-time
`processing, which is what video applications would require and when you
`look at what we saw in the very beginning on slide 3 when the applicants
`were talking about the prior art known to them at the time the application
`was written.
`So unless the panel has more questions on 18 and 20, I would
`propose to move on to the Motion to Amend.
`JUDGE BEAMER: That's fine.
`MR. WEED: And so in our presentation we lumped it all together,
`but it starts at slide 22 of our demonstrative presentation. And, again, this is
`a Non-Contingent Motion to Amend that would replace all the challenged
`claims up to Claim 18. We've provided for the panel on slides 23, 24 and 25
`the proposed amended claims that Patent Owner is -- that we're talking about
`here today. And I do want to point out something with regard to slide 25,
`which is on the screen now, and this is more of a clerical issue, but
`something that I think is important because of the way we got to where we
`are with a Reply that introduces a new set of amended claims.
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`So Claim 28 on slide 25 is the proposed substitute for Claim 8. In
`our Opposition to the Motion to Amend, we were addressing a proposed
`substitute claim for Claim 8 that was number 25. So if the panel reads our
`Opposition to the Motion to Amend, and I know this is the operative set of
`claims, but just for the record --
`JUDGE BEAMER: And we understand that.
`MR. WEED: Okay. So our arguments about 25 apply to 28.
`JUDGE BEAMER: Right.
`MR. WEED: Okay. The panel has already issued Order 27 on the
`issue about double spacing, the spacing issue. I'm not going to address that
`again. I think the panel is aware of that issue. We certainly have a problem
`with it, but understand that Order 27 is out there.
`On slide 27, though, I want to spend a minute with the claims that
`the panel said we're not talking about and really it's more about the process
`of amendment here again. As you're aware, there are some claims that are
`no longer -- they were proposed amended claims that we're not talking about
`because the original claims weren't challenged. We talked about the claim
`numbering issue.
`But another issue is the Reply set of claims, Claim 27, which is a
`replacement for Claim 7. There was never an original replacement for
`Claim 7, but that claim doesn't specifically -- that doesn't just amend
`dependency. That claim actually amends the language of the claim. So
`while it looks like the second set of amended claims is really just to fix
`dependency issues, Claim 27 actually changes the language of the claim and
`underscores the reason why the failure to propose a proper set of amended
`claims really hurts this process. Because just a couple of weeks ago for the
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`first time, we see another substantive amendment to the claims and we still
`think that's obvious. It's obvious for the same reasons the independent claim
`is obvious, but it is a substantive amendment to a claim that hadn't
`previously been amended. It underscores the reasons why the failure to get
`approval to file a second set of amended claims was a problem.
`JUDGE BEAMER: So the point is it's changing output to input.
`MR. WEED: Correct, that's correct. And, again, the analysis for
`obviousness focuses on the input, but it does change -- so it's still obvious,
`but it does change the scope of -- it changes the scope of that Claim 7, now
`Claim 27, even beyond just correcting the dependency issues. So the second
`set of amendments was not simply to correct dependencies is my point.
`Now, I did want to spend a little bit of --
`JUDGE GIANNETTI: Is it your contention that it broadens the
`
`claim?
`
`MR. WEED: Yes, and that's what I was actually going to move to
`right now. If we turn to slide 28. It is our contention that all of the claims
`that are proposed substitutes are broader than the original claims and there's
`two reasons. But before I get into that, I want to reiterate because we're sort
`of in a changing landscape of Motion to Amend practice with Aqua
`Products. Even though the burden of proving unpatentability post Aqua
`Products is on us, so if we want to prove the claim, the motion should be
`denied because of unpatentability. We have to show that by a
`preponderance.
`Aqua Products is still clear, as we noted in our Sur-Reply, that
`there is a burden on the Patent Owner to show compliance with 316(d)(3),
`which is the statutory section governing or prohibiting broadening
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`amendments, and they have a short statement in the motion itself. But
`beyond that, they don't do anything. There's no declaration from an expert.
`We have an expert declaration. We have substantial argument both in the
`opposition and the Sur-Reply about why the new claims are broader, and
`they have nothing.
`So I think we could have won the issue without an expert. We put
`in an expert and didn't see one in response, but that issue is their burden.
`That is a Patent Owner burden and the failure to meet that burden alone can
`warrant denial of the Motion to Amend.
`JUDGE GIANNETTI: Well, counsel, we can decide not to credit
`your expert.
`MR. WEED: Of course, of course, and that's fair enough.
`JUDGE GIANNETTI: The fact that you have an expert
`declaration and they don't, that's not dispositive.
`MR. WEED: It is not dispositive, but it is indicative of the fact the
`only evidence, the only evidence on this issue is from our expert. There is
`argument on the other side, but there is no evidence on the other side.
`There's not a Patent Owner expert coming back and saying I disagree, it is,
`in fact, narrower. That's my point. I understand that you can decide not to
`credit the expert. I still think we could -- they could have been found to fail
`to meet their burden if that's the case, too.
`So there are really two reasons why we think the proposed
`amended claims are broader and the first one is applicable to all the claims,
`which is this issue about resolutions. And actually in the Sur-Reply, which I
`think is Paper 29 -- if we could just flip on the Elmo, and apologies this
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`wasn't in our slides. The Sur-Reply was actually filed after the slides were
`exchanged.
`This is the fundamental problem that permeates all the claims. The
`original claims talked about reference resolution, which is that circle on the
`left. The amended claims don't say reference resolution, which is a display
`resolution. They replace reference resolution with display resolution.
`MR. CODDINGTON: And, Your Honors, if I may, we object to
`the presentation of this, because this wasn't included in a demonstrative and
`it's also a new argument that wasn't previously argued, and it's outside the
`scope of your order which was just supposed to address the additional
`claims.
`
`JUDGE BEAMER: Well, we'll take that under advisement. Could
`you explain what could -- what would not infringe under the original claims,
`but --
`
`MR. WEED: Sure.
`JUDGE BEAMER: -- would infringe under the new claims?
`MR. WEED: Sure. And this was the subject of a fair amount of
`both expert declaration testimony and deposition testimony, but the most
`concrete example that we could think of is something like a Skype based
`system where image data captured --
`JUDGE BEAMER: Now, what system?
`MR. WEED: Skype or Webex, so where a computer is the display
`device for a user of that system and the input is something like this Elmo.
`So if we had a system where a remote judge was seeing what the Elmo is
`seeing and that remote judge could re-size the window on his or her screen,
`then the output image data on that side would be determined by the display
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`resolution, but that wouldn't be an example of a reference resolution,
`because a reference resolution is something like XGA or VGA, kind of a
`standard, if you will.
`So that's a scenario where the display resolution could change and
`wouldn't be considered a reference resolution but would be considered a
`display resolution.
`JUDGE GIANNETTI: So your interpretation of reference isn't
`that it's just the general standard. Your reference is that it has to be some
`particular standard; is that correct?
`MR. WEED: Correct. Out interpretation is that, but our
`interpretation is really that the claims originally said reference resolution,
`which is a kind of resolution, and a display resolution is a different kind of
`resolution.
`JUDGE GIANNETTI: Isn't there a broader concept behind the
`reference, though, than just VGA or some other -- some of the others that
`you mentioned and that is just something that is going to be a basis for
`comparison?
`MR. WEED: There very well may be, Your Honor, and this is,
`again, where the process that got us here is a bit of a problem. Because in
`the Motion to Amend, the Patent Owner says at page 3 that there's no claim
`construction needed and so, again, this is an issue they bear the burden on
`and there was no claim construction arguments made to support either in the
`Motion to Amend or the Reply to support Your Honor's position. So, again,
`out expert --
`JUDGE GIANNETTI: It's not necessarily my position.
`MR. WEED: Your question, I apologize.
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`JUDGE GIANNETTI: I'm suggesting it as a hypothetical.
`MR. WEED: Sure, sure, and there is some question about what a
`reference resolution is, but I don't think it can be questioned under the
`Canons of Claim Construction that there are resolutions which are not
`reference resolutions. I mean, a reference is a modifier to the
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