Paper No. 34
`Entered: March 31, 2021
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`Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`3SHAPE A/S AND 3SHAPE INC.,
`Petitioners,
`
`v.
`
`ALIGN TECHNOLOGY, INC.,
`Patent Owner.
`____________
`
`IPR2020-00223
`Patent 7,156,661 B2
`____________
`
`Record of Oral Hearing
`Held: March 2, 2021
`____________
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`
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`Before HYUN J. JUNG, JOHN P. PINKERTON and
`JAMES J. MAYBERRY, Administrative Patent Judges.
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`Entered: March 31, 2021
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`Trials@uspto.gov
`571-272-7822
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`3SHAPE A/S AND 3SHAPE INC.,
`Petitioners,
`
`v.
`
`ALIGN TECHNOLOGY, INC.,
`Patent Owner.
`____________
`
`IPR2020-00223
`Patent 7,156,661 B2
`____________
`
`Record of Oral Hearing
`Held: March 2, 2021
`____________
`
`
`
`Before HYUN J. JUNG, JOHN P. PINKERTON and
`JAMES J. MAYBERRY, Administrative Patent Judges.
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`
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`
`
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`IPR2020-00223
`Patent 7,156,661 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONERS:
`
`
`TODD R. WALTERS, ESQ.
`ROGER H. LEE, ESQ.
`ADAM BANES, ESQ.
`Buchanan Ingersoll & Rooney PC
`1737 King St #500,
`Alexandria, Virginia 22314
`(703) 836-6620
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MICHAEL T. ROSATO, ESQ.
`MATTHEW A. ARGENTI, ESQ.
`YAHN LIN CHU, ESQ.
`Wilson Sonsini Goodrich & Rosati
`1700 K Street NW
`Fifth Floor
`Washington, DC 20006
`
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`
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`The above-entitled matter came on for hearing on Tuesday, March 2,
`2021, commencing at 10:00 a.m. EDT, by video by telephone.
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`IPR2020-00223
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`P R O C E E D I N G S
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` JUDGE MAYBERRY: Good morning and welcome. I am Judge
`Mayberry, and with me on your screens should be Judges Jung and
`Pinkerton.
`We're here for oral argument in IPR 2020-00223, styled 3Shape A/S
`and 3Shape, Inc. v. Align Technology, Inc. This proceeding involves U.S.
`Patent Number 7,156,661, the ’661 Patent.
`Before we go over some ground rules, I'd like to start with
`appearances by the parties, including any parties that might be joining
`remotely by video or audio. That way we can make sure that everyone can
`hear one another. And we'll start with Petitioner’s counsel.
`Good morning, Your Honors. I'm Todd Walters, representing
`Petitioners 3Shape A/S and 3Shape Inc. I believe I have with me on the
`phone today, my colleagues, Roger Lee and Adam Banes on the public line.
`JUDGE MAYBERRY: All right, thank you. And for Patent Owner?
`MR. ROSATO: Good morning, Your Honors. Mike Rosato,
`representing Align Technology, the Patent Owner in this case. And I think
`there are a few folks on the line, including Matt Argenti, whose co-counsel,
`and I believe Arthur Shea from in-house counsel for Align is on the phone as
`well.
`JUDGE MAYBERRY: All right, thank you. And I'm going to ask
`Judges Jung and Pinkerton to acknowledge that they can hear the parties,
`and also so that we can make sure the parties can hear them. So, Judge
`Jung?
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`JUDGE JUNG: Good morning, this is a Judge Jung, and I can hear
`both the parties and the other panel members.
`JUDGE MAYBERRY: All right, great. Thank you. And Judge
`Pinkerton? Judge Pinkerton, you might have to come off mute.
`JUDGE PINKERTON: She told me to mute my mic, sorry about that.
`This is Judge Pinkerton in Dallas. I can hear everyone loud and clear.
`JUDGE MAYBERRY: All right, great thanks. You can go back on
`mute for now. Before we get started, I'd like to go over some of the
`mechanics of the hearing. First, thank you all for your flexibility in
`accommodating this hearing by video today. Our primary concern is your
`right to be heard, and to present the case on the record as you see fit. At any
`time during the hearing you encounter technical difficulties that you feel
`undermines your ability to adequately represent your counsel, your client,
`please let us know immediately. You should have been given contact
`information from our hearings team, if you lose connection or encounter
`some other problem, you should use that information to contact them.
`Our hearing order included some information on the conduct of this
`video hearing. I want to reemphasize that when you are not speaking, please
`mute your connection. Also, when you do speak please identify yourself. I
`say this as much for the judges as for counsel. This will help the court
`reporter prepare an accurate transcript.
`Now, the judges have access to a complete trial record of the
`proceeding, including the parties' demonstratives. We ask when you're
`talking and you refer to a slide, please refer to the slide by number, so that
`we can follow along and so that the transcript is clear. Also, if you refer to
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`an exhibit or a paper, please identify the exhibit or paper by number and the
`page you're referencing.
`Now, we've noticed that there's a slight lag between when someone
`starts to talk and when the other participants hear that person. So, before
`you dive right into what you want to say, you should pause for a couple of
`seconds. Again this tip goes for both judges when asking questions and
`counsel when answering those questions. This helps the court reporter make
`an accurate record and also makes sure that the questions and the answers
`are clearly conveyed to the participants. I want to remind the parties that
`this hearing is open to the public and we have provided a mechanism for the
`public to listen.
`Now, Petitioner bears the burden of proving unpatentability of the
`challenge claims and will go first in this hearing. Petitioner may reserve
`rebuttal time. Then, Patent Owner will respond to Petitioner’s case. Patent
`Owner may reserve sur-rebuttal time. Petitioner may reserve, sorry,
`Petitioner may use its rebuttal time to reply to Patent Owner’s response.
`Patent Owner may use its sur-rebuttal time to reply to that reply.
`Also, we will take a short break at some logical stopping point in the
`hearing. As we indicated in our hearing order, each side has 60 minutes of
`presentation time, including any rebuttal. And the transcript for this hearing
`will be entered into the record. Now, Judge Jung is going to help us out by
`keeping time for the hearing. He'll try to give the parties notice about how
`much time is remaining during the presentation.
`Now, does counsel for Patent Owner have any questions before we
`start?
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`MR. ROSATO: This is Mike Rosato, Your Honor, no questions from
`Patent Owner.
`JUDGE MAYBERRY: All right, thank you. And Petitioner’s
`counsel?
`MR. WALTERS: Your Honor, this is Todd Walters, Petitioner has no
`questions at this point. I would like to reserve 15 minutes of rebuttal though.
`JUDGE MAYBERRY: All right, great. Thank you. With that then
`counsel, you may begin when you're ready.
`MR. WALTERS: Thank you, Your Honors. May it please the panel,
`we're here today to discuss the ground of Ashmore in view of Jovanovski, as
`it applies to Claims one through four, six, 19 to 22 and 26 of the 661 Patent.
`This is Slide 2 of the Demonstratives that lays out the ground that we're
`talking about. And I will just loosely be following the slides and I'll refer to
`the numbers as I go along.
`If we can go to Slide 5, you will see an overview of the issues for this
`particular case. And I plan to focus most of my time on the first bullet point
`here, and specifically talking about where the prior art discloses a computer
`model of a jaw, the identifying steps of the claims, the matching steps of the
`claims, and calculating positional differences.
`If we go to Slide 5, you will see that Patent Owner’s first argument is
`that Ashmore does not disclose a computer model of a jaw. This argument
`was not presented in Patent Owner’s preliminary response and appears to be
`based on a special meaning of computer model of a jaw developed by
`Align’s expert, Dr. Foroosh. However, neither party has offered a specific
`construction for this phrase in the claims. Thus, the phrase should be given
`its plain and ordinary meaning.
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`If we look at Slides 6 through 9, there's no requirement that the model
`be comprehensive. There's no requirement that the model be automated.
`There's no requirement that the model be of a whole jaw. There's no
`requirement that the model be made of hundreds or thousands of data points.
`In fact, the ’661 Patent makes no reference to how many data points are
`required to have a computer model of a jaw. Just like Ashmore in this case,
`the ’661 Patent focuses on data points where the data points are used for
`registration of the model.
`In Figure 10A of the ’661 Patent, the patent says use three or more
`reference points. In claim one, it recites at least one reference point. So, the
`patent, just like the prior art, focuses on the points that are used for
`registration of the models.
`If you can look at Slide 15, and I apologize, I'm skipping around a
`little bit here. But Patent Owner’s expert Dr. Foroosh agrees. He testified
`that the ’661 Patent provides no meaning for the term computer model. And
`when he was asked what his understanding of the meaning of the term was,
`he couldn't provide a single defining characteristic of the term computer
`model. He went on and said, well if I see a model that is not a model, I
`would recognize it. But if I see a model that is a model, I would recognize
`that as well. This is the epitome of the type of testimony that the Board has
`rejected outright is unsupported.
`But let's be clear, and now I want to turn back to Slide 10. Ashmore
`explicitly discloses a computer model of a jaw. Ashmore discloses
`digitizing points of maxillary cast, which means paths of a jaw. It refers to
`the data that is collected as digitized models. It is those digitized models
`that are superimposed and oriented in a spatial frame of reference. It's not
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`the physical tasks that are done. And in the author's response of Ashmore,
`and specifically it's Ashmore Exhibit 2009, the version of Ashmore
`submitted by Patent Owner, Ashmore explicitly states, on page 30, that
`study models can now be stored virtually as a digital file, and tooth moving
`appliances can be fabricated from a digital manipulation of 3D model data.
`It has explicit disclosures of the data being a model.
`If we can go to Slide 11, Patent Owner argues that 3Shape cited solely
`to Figure 1 as support for the disclosure of a computer model of a jaw.
`However, Patent Owner wants you to just ignore all the other explicit
`mentions in the Petition, and in Ashmore.
`If you just go in look at the Petition, for example, on pages 17 through
`20, you will see numerous references to where Ashmore discloses a
`computer model of a jaw. These aren't the only places; they're riddled
`throughout the Petition. But in no way did Petitioner rely solely on Figure 1
`for this disclosure.
`If we can go to Slide 14, Patent Owner has also asserted that --
`JUDGE MAYBERRY: Counsel.
`MR. WALTERS: Yes, Your Honor.
`JUDGE MAYBERRY: This is Judge Mayberry. May I ask you a
`question?
`MR. WALTERS: Yes you may.
`JUDGE MAYBERRY: That, I'm trying to understand exactly what
`the contention is though, as far as what Ashmore does disclose. So, is it
`your contention that the 35 points that are described at the bottom of the first
`column of page 20 of Ashmore, represent the computer model of the jaw?
`Or is it your contention that Ashmore discloses more. That its model
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`includes more data points, such that if you would display those data points
`or that model, what would result would be the images that we actually see in
`Figure 1?
`MR. WALTERS: Yes, Your Honor. Our contention is that Ashmore
`obtains spatial data, as described in, on page 20 and 21 of the reference, and
`obtains more data points than just 35 data points, and obtains a model. It
`focuses on the 35 data points and even that are stated as minimums in
`Ashmore. So, our contention is, there are more than 35 points, and also that
`Ashmore does not disclose or limit the points it focuses on as 35.
`There was also another argument that was made that 35 points cannot
`be enough points for a computer model. We also reject that argument as
`well.
`JUDGE MAYBERRY: Okay.
`MR. WALTERS: So, I will turn then to Slide 14, Your Honors. And
`Patent Owner has asserted that the ALJ in the parallel ITC proceeding has
`found that Ashmore does not disclose the computer model of a jaw. But the
`ALJ did not address whether the, whether Ashmore discloses a computer
`model of a jaw, the ALJ addressed whether Commer, the primary reference
`that was considered in the ITC discloses a computer model of a jaw.
`And in fact, Commer disclosed a computer model of the palate, and it
`disclosed a computer model of molars. But it did not have a combined,
`according to the ALJ, computer model of the palette, and the molars, such
`that it was a computer model of a jaw. But let's be clear, Commer is not at
`issue here. What we're referring to is Ashmore. And Ashmore explicitly
`discloses obtaining spatial data from maxillary cast, for example, which
`means cast of a jaw.
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`If we can go to Slides 16 and 17, and we touched upon this a bit
`already. Patent Owner argues that Ashmore discloses collecting only 35
`points, and that is not sufficient to create a computer model. This argument
`rests solely on the testimony of Dr. Foroosh, who would not identify a single
`defining characteristic of a computer model.
`This theory also completely ignores explicit disclosures in Ashmore
`of obtaining a computer model of a jaw. I mentioned them earlier. They're
`cited in the Petition; they're also cited in the reply. They reference the fact
`that there's a model over and over again.
`Further as Dr. Saber testified, Ashmore does not limit the number of
`points that it collects. Ashmore discloses collecting spatial data to form a
`model. Yes, Ashmore focuses on certain points that are used for
`registration, and superimposition, but those points, the 35 points that Patent
`Owner is referring to, are a minimum number of points. Ashmore doesn't
`provide a maximum, even for the points that it's referring to for the
`registration and superimposition.
`And in fact, again, this is no different than the disclosure of the ’661
`Patent. The ’661 Patent also focuses the number of points on the points that
`they're using for registration and superimposition. In Figure 10A, the only
`reference there is to three or more points. And in the claims, what it's
`referring to is just at least one point. So, Ashmore, just like the ’661 Patent
`focuses on the points that are interest for registration and superimposition.
`If we can get to Slide 20, please --
`JUDGE MAYBERRY: Excuse me, counsel, this is Judge Mayberry
`again. I do want to -- I kind of have a follow up question on that. The, Dr.
`Saber’s testimony that you pointed to in Slide 17, which I understand to be
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`from his deposition. First question is, does he have any testimony in his
`declaration that would support a contention that the model of the jaw in
`Ashmore is made up of more than 35 points?
`MR. WALTERS: He specifically refers to, and the Petition
`specifically referred to, Ashmore at, bear with me a second, page 20, the top
`of the left hand column. The reference to spatial data from maxillary cast
`were collected with a desktop mechanical 3D digitizer. He talks about that
`collection of the spatial data resulting in the computer models. And that's
`what he's referring to as the collection of more data than just the points that
`are referred to at the bottom of the left hand column of Ashmore.
`JUDGE MAYBERRY: All right. Thank you.
`MR. WALTERS: Another argument that Patent Owner has made, and now
`I'm on slide 20, is that Ashmore fails to disclose identifying at least one
`reference point.
`If we can go to slide 21, it is Petitioner’s contention that identifying is
`satisfied by digitizing the physical marks on the rugae for purposes of
`registration and superimposition. And as stated in the Petition, at pages 24
`to 26, and also on page 65, and in the Reply on page seven, Ashmore
`discloses placing pencil marks on a cast, and then digitizing those marks for
`purposes of registration and superimposition. It is those digitized points that
`Ashmore says are registration landmarks. It is those registration landmarks
`that are used for superimposition of the models. And is the very same term
`that Jovanovski uses to identify its virtual points for registration on the
`virtual model.
`If we can go to Slide 22, Patent Owner asserts that the points are not
`identified on the model when digitized because no model exists during
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`digitization. Well, you have already rejected this argument and Patent
`Owner has not directed us to any claim interpretation that would preclude
`the identifying aspect from being satisfied by digitizing a physical mark.
`Again, Ashmore refers to those marks as landmarks. The landmarks are
`used for the registration. Of course they are identified.
`Now, if we can go to Slide 23. In Slide 23, Patent Owner has made
`another argument that the ALJ expressly found that Ashmore does not
`disclose an identification step of reference points occurring on the computer
`model. And they have to admit that the ID is a bit confusing. On page 121
`of the ID, the ALJ said that 3Shape’s argument was unsupported because
`Ashmore does not disclose an identification step of reference points
`occurring on a computer model.
`However, on the very next page, the ALJ went on to say that when
`3Shape attempted to argue that Ashmore confirms that the digitized points
`are identified and present on the computer model, she viewed that argument
`as belated in weight. And then she concludes on page 122 of the ID, that
`what is clear is marking the plaster matte model is not identifying on a
`computer model. And we are in no way, Petitioner is in no way saying that
`the marking of the plaster model is the identifying. We have been indicating
`that the digitized points, the points that are referred to as landmarks are the
`identified points.
`JUDGE MAYBERRY: Excuse me, counsel. This is Judge Mayberry.
`I just, to clarify the record, I want to confirm, when you refer to the ID, you
`are talking about Exhibit 1032?
`MR. WALTERS: Yes, Your Honor.
`JUDGE MAYBERRY: Thank you.
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`MR. WALTERS: Thank you for that clarification. If we can go to
`slide 24. Ashmore has additional disclosures of identifying the digitized
`points after the digitized models were created. Patent Owner argues that we
`did not present these arguments in the Petition. However, the Petition is
`pretty clear where we say explicitly that the rugae points are used as
`registration landmarks on all models in the series, that's on page 25. We say
`that those digitized rugae points are used to determine the position of the
`first model relative to the position of the second model, that's on page 26 of
`the Petition.
`We state that Ashmore identifies the digitized corresponding reference
`points in order to perform its matching technique, that's on page 26. And
`then on page 65 of the Petition, we say that Ashmore identifies the digitized
`corresponding rugae point, rugae reference points, on each of the first and
`second computer models in order to superimpose those models. We said
`that over and over again, and I believe you've already recognized this in the
`institution decision. But even after all of that, you do not have to rely upon
`Ashmore alone for the identification of the points on the computer model.
`If we can go to Slide 27, not only does Ashmore disclose
`identification, Jovanovski also discloses identification and it provides two
`ways to identify points. One is with external markers, and the other is with
`landmarks. You'll remember, I said earlier, Jovanovski uses the very same
`term that is used in Ashmore for the identified marks. The landmarks can be
`identified on the surface anatomy retrospectively by presenting the acquired
`data on a computer visualization system. That's what Jovanovski says about
`using marks that are placed on the computer model. It only provides two
`options and it gives a preference for the virtual option.
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`JUDGE JUNG: Mr. Walters --
`MR. WALTERS: You can --
`JUDGE JUNG: This is Judge Jung. I understood your position to be
`that you are relying on Ashmore as the primary reference and you are
`modifying Ashmore in view of Jovanovski. Is that correct?
`MR. WALTERS: I'm saying that both Ashmore and Jovanovski
`described the identifying step. If you don't agree that Ashmore discloses it,
`and we have also argued that Jovanovski discloses it. And that the
`modification would have been obvious.
`JUDGE JUNG: Did you provide a reason why Ashmore would be
`modified in view Jovanovski for the identifying step?
`MR. WALTERS: We did in the Petition, and we responded to the
`arguments in the Reply as well.
`JUDGE JUNG: Okay. Now, going back to your Ashmore arguments,
`specifically the loading and identifying. Now, the claim, claim one for
`example, the first two steps are loading your first and second computer
`models of a jaw. The third step is identifying at least one region or one
`point, one reference point on a region of the first computer model. It sounds
`like your argument is, we are going to first identify a reference point on a
`first computer model and then load the computer model. Is that what you're
`trying to convey to us?
`MR. WALTERS: I'm not sure I understood the question. Can you
`repeat that one time?
`JUDGE JENG: Okay. So, it sounds like you are saying the act of
`marking on a mold of a jaw with the identifying at least one reference point.
`And then transferring that mark into a computer would be the loading of that
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`first computer model of a jaw. But the claim requires you to identify that
`one reference point on a computer model. In your arguments, I didn't quite
`understand where that happened. It sounds like it happens before you load
`the computer, the load -- load the model onto a computer. It sounds like you
`are finding a reference point on that mold, the noncomputerized model of the
`jaw, loading the points onto a computer, and then somehow we're still in the
`process somewhere. I'm not sure exactly where, we also identified the
`reference point again on a computer model of a jaw. So, can you clarify that
`one point? When exactly did the identifying happen?
`MR. WALTERS: Thank you for that question, Your Honor. And
`first of all, I want to make abundantly clear that it is not our argument that
`putting a pencil mark on a cast is the identifying that we're relying upon.
`That is not what we're relying upon. What we're saying is that the
`digitization of that mark results in what they refer to in Ashmore as a
`registration landmark. And it is that registration landmark which is
`identified on the computer model. That would be identified during
`digitization and it would be identified when -- and when the models are
`being used for registering and superimposition. So, the identified marks are
`there when they're digitized, and thereafter when they're being used. And
`we argued both of those things in the Petition and in the Reply.
`JUDGE JUNG: Okay, so let me just reword your answer to make
`sure I understand. So, when the 35 points of Ashmore are uploaded onto a
`computer that's loading your computer model, correct?
`MR. WALTERS: Yes.
`JUDGE JUNG: And then you pick one of those points to be the
`reference points.
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`MR. WALTERS: Your Honor, can I -- when you say the 35 points, I
`don't want my last answer to --
`JUDGE JUNG: No, yeah.
`MR. WALTERS: -- suggest that it was only 35 points.
`JUDGE JUNG: But --
`MR. WALTERS: I want to be clear on that.
`JUDGE JUNG: But in terms of the, according to Ashmore, yeah the
`one example described in Ashmore. When Ashmore uploads its 35 points
`that's the same as uploading a computer model of a jaw, according to
`Petitioner, is that correct?
`MR. WALTERS: Correct.
`JUDGE JUNG: And then somebody on the computer just picks one
`of the points that corresponds to, let's say the rugae, and that becomes the
`identifying reference point on that computer model, is that correct?
`MR. WALTERS: Or it could be automatically done through the
`software.
`JUDGE JUNG: Okay. All right. Thank you. I think I understand
`your position better. Thanks.
`MR. WALTERS: Okay.
`JDUGE MAYBERRY: Excuse me, counsel. This is Judge Mayberry.
`Before we move on, kind of to build on Judge Jung’s question. If we should
`find that Ashmore’s model is limited to those 35 points, including digitizing
`the four landmarks on the left palatal rugae and four on the right palatal
`rugae, how would that dovetail with your reasoning as to why a person
`having ordinary skill in the art would have modified Ashmore’s process to
`use Jovanovski’s virtual marking?
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`If I've -- to say that a different way, I mean the whole reason I picked
`those eight points was because I want them to be the registration landmarks
`that I'm going to use to match my models. Why would I then move to
`Jovanovski and do a virtual marking?
`MR. WALTERS: So, Your Honor, with regard to Jovanovski, it talks
`about using landmarks just like Ashmore talks about using landmarks. And
`the reason why you would need to mark the various points, even if you only
`had eight points, you have to know which points are going to be registered,
`and how they're going to be registered. So, there's still a requirement for you
`to make the landmark so you can do the registration and then the subsequent
`superimposition.
`JUDGE MAYBERRY: All right, thank you.
`MR. WALTERS: So, if we can go on to Slide 28. And may I know
`how much time I have left of my 45 minutes?
`JUDGE MAYBERRY: You have 17 minutes left. My clock now
`reads at 10:39 a.m., you have until 10:56 a.m.
`MR. WALTERS: Okay, thank you. Slide 28, we begin a section of
`slides where Patent Owner asserts that the combination of Ashmore and
`Jovanovski does not disclose the claimed matching steps. And here we start
`with claim construction, a claim construction offered by the ALJ and agreed
`to by the parties here. And then compare that to the one embodiment in the
`’661 Patent that discloses using palatal rugae as stable regions. And that's
`the embodiment depicted in Figure 10A.
`If we can go to Slide 29. Let's start off with the ALJ’s construction
`and that is the first matching step. And this gets a bit tricky because
`matching in the ’661 Patent is used in different ways. But the ALJ construed
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`the first matching step as the following: Using the identified reference
`points to determine a position of a region of a computer model relative to the
`corresponding region of the second computer model.
`So, the focus is, determine the position, or determine a position. What
`the Judge has said is, what is required of 1.5, the matching step of 1.5 is
`determining the position but not actually positioning. The ALJ then did not
`construe the second matching stack in the claim, the 1.6 limitation or 19.6
`limitations.
`However, if you look at the claim construction order, and that's
`Exhibit 1014, on pages 15 and 16, the Judge was pretty clear about how the
`’661 Patent used matching. And she was clear in the sense that she indicated
`that matching was used in multiple different ways. Sometimes it was
`referencing positioning, and other times it was referencing determining a
`position.
`And then she concludes in that section and says, in one embodiment,
`it includes computation which is determining a position and positioning or
`repositioning. And she did not specifically interpret this portion, the second
`matching step.
`So, what we understand is that second matching step then does not
`require determining the position. Because if it did she would have construed
`it like she construed 1.5. However, it does encompass positioning or
`repositioning. And it may allow for determining the position.
`I want to be real clear on that and see if you have any questions
`because quite frankly, we don't understand Patent Owner’s construction and
`what constructions they're offering for these terms. I'm being very clear and
`want to make sure this is clear.
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`Okay, I'll go on to Slide 30 then. Patent Owner argues that nowhere
`in the Petition is it shown that Ashmore or Jovanovski teaches separately
`calculating a transform for a model as a whole using a matched region. And
`Patent Owner errors for two reasons. First, the second matching step, 1.6,
`does not require calculating a transform for a whole, I’m sorry, calculating a
`transform for a model for, as a whole. And two, Jovanovski discloses
`positioning the models as a whole using a transform based on stable regions.
`As explained on pages 38 to 41 of the Petition, and in pages 103 to
`105 Jovanovski, Jovanovski discloses a first stage initial approximation step,
`which is very similar to Ashmore’s matching step of calculating a transform.
`It's based on a few points identified in a stable region, the rugae region in
`Ashmore. Jovanovski also talks about using points in a stable region.
`But then Jovanovski has a second stage process that meets the
`requirements of the second matching step, the 1.6, 19.6 matching steps of
`claim one and claim 19 of the ’661 Patent. The operator marks the stable
`regions, then uses more points within the region to obtain an improved
`transform. And then that improved transform, it may be an iterative process,
`but that improved transform once final that's then applied, as described on
`page 105 of Jovanovski, as being applied to the model as a whole. And it is
`that disclosure that Petitioner is relying upon that discloses the second
`matching step in the claims.
`JUDGE MAYBERRY: Counsel --
`MR. WALTERS: You can -- yes?
`JUDGE MAYBERRY: Excuse me, this is Judge Mayberry. May I
`ask you a question about that?
`MR. WALTERS: Please do.
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`JUDGE MAYBERRY: And again, we're going to start with, if we
`should find that Ashmore’s model is limited to the 35 described points. I
`want to understand how your proposed modification in view of Jovanovski
`would work. Because as I understand it, you were talking about this refining
`step that Jovanovski teaches. Jovanovski relies on 3,000 points from its
`model.
`So, how do these two things fit together a 35 point model and
`Jovanovski’s refining steps? So, how do you env
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