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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`PACIFIC SURF DESIGNS, INC.,
`Petitioner,
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`v.
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`SURF WAVES, LTD.,
`Patent Owner.
`____________
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`Case IPR2016-01454
`Patent 8,088,016 B2
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`Record of Oral Hearing
`Held: November 8, 2017
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`Before PHILLIP J. KAUFFMAN, BEVERLY M. BUNTING,
`and JASON W. MELVIN, Administrative Patent Judges.
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`Case IPR2016-01454
`Patent 8,088,016 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`CHARANJIT BRAHMA, ESQUIRE
`ANUP M. SHAH, ESQUIRE
`Troutman Sanders, LLP
`580 California Street
`Suite 1100
`San Francisco, California 94104
`
`ON BEHALF OF PATENT OWNER:
`BARRY J. SCHINDLER, ESQUIRE
`JOSHUA MALINO, ESQUIRE
`Greenberg Traurig, LLP
`200 Park Avenue
`New York, New York 10166
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`The above-entitled matter came on for hearing on
`Wednesday, November 8, 2017, commencing at 1:00 p.m., at the
`U.S. Patent and Trademark Office, 600 Dulany Street,
`Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE MELVIN: Good afternoon, everyone. This is
`the hearing in IPR2016-1454 between petitioner, Pacific Surf
`Designs, and patent owner, Surf Waves, reviewing patent number
`8,088,016. I'm Judge Melvin. With me is Judge Kauffman, and
`Judge Bunting is appearing remotely from Detroit.
`Let's get the parties' appearances, please. Who do we
`have from petitioner?
`MR. BRAHMA: Charanjit Brahma and backup
`counsel, Anup Shah from Troutman Sanders.
`JUDGE MELVIN: Thank you. And for the patent
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`owner?
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`MR. SCHINDLER: Good afternoon, Your Honors.
`My name is Barry Schindler from the firm of Greenberg Traurig.
`With me is Josh Malino, and behind me is Lennie Bersh and Erik
`Squier.
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`JUDGE MELVIN: Thank you and welcome. We
`appreciate you appearing here today and helping us understand
`your arguments. We look forward to your presentations.
`So the order regarding oral argument set forth the
`procedure for today's hearing, but I would like to remind
`everyone of the way it will work. You each have 30 minutes for
`your presentations. And petitioner will start and may reserve
`time for rebuttal. Please keep in mind that Judge Bunting will not
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`be able to see what you project on the screen, but she has a copy
`of the materials. So when you refer to an exhibit or a slide
`number, please state for the record clearly so that we have a good
`record and so that Judge Bunting understands what you are
`talking about. And also remember that she can only hear when
`you speak into the microphone.
`Under no circumstances should you interrupt the other
`party while that party is presenting arguments or demonstratives.
`If you believe that something the other party is presenting is
`objectionable, please save that for your argument time. And if it's
`an objection during the rebuttal time, you can raise that
`afterwards. Do either of you have any questions?
`MR. SCHINDLER: No, Your Honor.
`MR. BRAHMA: No, Your Honor.
`JUDGE MELVIN: With that, we are ready if you are.
`Petitioner, would you like to reserve time?
`MR. BRAHMA: Yes, we would like to reserve ten
`minutes for rebuttal, if possible.
`JUDGE MELVIN: Okay. Whenever you are ready.
`MR. BRAHMA: Good afternoon, Your Honors.
`Today, as previously noted, we are talking about the claims of the
`'016 patent. All of these claims are challenged. Two of them are
`independent claims, 1 and 20.
`If we go to slide 3, we see the relevant language of
`claim 1. The highlighted limitations are the ones that are
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`primarily in dispute relating to the activity section and the first
`and second curved side walls. Those limitations are substantially
`the same in both independent claims 1 and 20.
`There are also a number of dependent claims that are at
`issue in this IPR. None of the limitations of those dependent
`claims were separately identified as a basis for validity.
`If we go to slide 7, I would like to briefly start with the
`claim constructions. This slide shows the different terms that
`were construed by the Board as part of the decision to institute.
`Most of these limitations aren't really in dispute, aren't going to
`be the basis for any of the arguments between the sides. The one
`possible exception to that is the term "opposite", which the Board
`construed as on the other side from. None of these constructions
`has been contested by patent owner, but as we'll see in the
`discussion today, patent owner is trying to read the claims as
`more limited and specifically limited to, for example, a half-pipe
`type of ride. And one way in which they try to do that is to claim
`that the term "opposite" means something more than it does in the
`Board's construction.
`So if we take a look at that first on slide 8, what we are
`looking at here in the image is from patent owner's infringement
`contentions in the related District Court litigation. The ride that
`is shown there is an allegedly infringing ride made by petitioner.
`And the boxes were included in the infringement contentions as
`patent owner's way of showing what parts of that ride supposedly
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`met the first curved side wall, substantially flat middle section
`and second curved side wall opposite the first limitations of the
`'016 patent claims.
`So you'll note there that in pointing to the various parts
`of the ride, the side walls that are identified are not diametrically
`opposite to each other. They are not parallel to each other. So
`the term "opposite" has been construed by the Board has been
`construed broadly, as it should be, for purposes of this
`proceeding. There is nothing in the claims, there is nothing in the
`specification that requires that the side walls be diametrically
`opposed or parallel. And that's the position that patent owner
`even took in the claim construction proceedings in the District
`Court.
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`JUDGE MELVIN: Counsel, what do you understand
`patent owner's construction to be now?
`MR. BRAHMA: Well, technically, I don't think they
`are challenging the Board's construction. But when you ask
`patent owner's expert, Dr. Stevick, what these claims are related
`to, ultimately he comes down to saying that opposite means that
`the ride has to be configured like a half-pipe. So there have to be
`diametrically opposed rideable surfaces, areas of high potential,
`he calls them. So there has to be a wall that is basically like a
`semicircle.
`So that's very different from the broad construction of
`opposite that the Board applied and for purposes of this
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`proceeding and what patent owner itself applied or argued to the
`Court when it was arguing for the construction of these terms in
`the related District Court litigation.
`JUDGE BUNTING: Counselor, I have a question for
`you. Do you agree then with our construction from the DI?
`MR. BRAHMA: Yes. We agree that it should be that
`broad for purposes of this IPR, correct.
`JUDGE BUNTING: Thank you.
`MR. BRAHMA: So if we move to the next slide, slide
`9, this shows a portion of Dr. Stevick's deposition testimony in
`which he plainly says -- so the question was, Is claim 1 limited to
`half-pipe rides? This was after some lead-up from Dr. Stevick.
`And he said he thinks it describes a half-pipe but is limited to
`either a half-pipe or something that is substantially similar.
`And on the next slide, slide 10, he makes clear that his
`derivation of this half-pipe limitation comes from the term
`"opposing." When I asked specifically, Why do you think these
`side walls aren't opposing? He says that's completely
`nonsensical. No one would look at this and call this a half-pipe
`because you don't have the opposing high potential areas that you
`can reciprocate between.
`Now, I will note, if we go back a couple slides, actually
`to slide 8, you see the top bullet point there. In the District Court
`litigation, patent owner actually took the position that the
`specification of the '016 patent itself showed embodiments in
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`which the side walls were not parallel. And that was one of the
`reasons that they argued that the term "opposite" should not be
`limited to diametrically opposed and parallel side walls. And
`they made that argument in relation to Figure 6 of the '016 patent.
`Now, I should note in talking about opposite, this is not
`an argument that patent owner raised in its responsive brief as a
`reason for finding the claims not invalid. The patent owner's
`arguments and even Dr. Stevick's declaration focused on whether
`the side walls extended substantially upwardly. The discussion of
`opposite, the discovery that Dr. Stevick was reading this half-pipe
`limitation into the claims, that all came out at his deposition.
`JUDGE MELVIN: Then why does it matter if it's not
`something that patent owner is relying on?
`MR. BRAHMA: It should not matter. We have seen
`the other side's demonstratives, so I have some belief that it will
`be raised in their argument.
`JUDGE MELVIN: But you didn't object to those as a
`new argument?
`MR. BRAHMA: Well, so the excerpts they take are all
`in the record. So it depends on what argument they actually make
`from the slides. This is just my suspicion at this point. But the
`other thing I will note is that -- so they have raised arguments, for
`example, that side walls don't extend substantially upwardly
`because if you draw a line perpendicular from the edge between
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`the side wall and the middle section, that perpendicular arrow
`doesn't go up.
`And when you probe, when I probed Dr. Stevick more
`deeply about that in his deposition, he said that part of that
`interpretation is based on how he views this half-pipe limitation
`of the claims. Now, that is never explicitly stated either in his
`declaration or the opposition in the responsive brief. In the
`response brief it just comes out as these side walls don't extend
`substantially upwardly. So it really goes into the kind of implicit
`reasoning for Dr. Stevick's statements that certain limitations are
`not met.
`But you are absolutely correct, Your Honor, that patent
`owner should not now be allowed to argue that the side walls
`aren't opposite because they didn't actually do that in their
`previous responsive briefing.
`So now if we go to slide 6, this actually summarizes the
`five grounds for institution in the decision, in the Board's
`decision. There are three pieces of prior art that were referenced,
`the '589 patent, the '590 patent and the '530 patent. All three of
`those name the same inventor. They all relate to water rides.
`They all discuss side walls and containing water. And so we will
`go into the specific reasons to or motivations to combine
`particular references when we discuss particular grounds, but they
`all come from that same background.
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`So if we take the first of these, this is on slide 11, the
`first two of these relate to anticipation by the Lochtefeld '589
`patent for certain of the claims and then obviousness of the '589
`patent with respect to all 20 claims.
`So if we move forward to slide 14, these are the two
`images that were included in the petition. These are versions of
`Figure 4A of the '589 patent. The red section was colored to
`show the activity -- the red portion in the image on the left
`showed the activity section. The blue and red sections in the
`image on the right show the first and second side walls.
`JUDGE MELVIN: I'm interested in that --
`JUDGE BUNTING: Counselor, I have a question. In
`the blue and red annotations that you did in Figure 4A, is that
`intended to show the entire side wall?
`MR. BRAHMA: You mean is the colored portion the
`entire side wall?
`JUDGE BUNTING: The colored annotations, yes. So I
`see a blue portion and I see a red portion. Is that entire red
`portion considered a side wall?
`MR. BRAHMA: It would be considered a side wall. I
`will note, though, that in the decision to institute, one of the
`points that was made is that because these side walls extend
`substantially upwardly, not all parts of the side wall need to be
`upward. So a substantial portion, whatever the actual extent of
`that is, a substantial portion of the side wall needs to extend
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`upwardly from the edge between the middle section and that side
`wall.
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`JUDGE BUNTING: And I understand that. What was
`your intent, then, in the petition then when you annotated?
`Again, back to my question, is the entire blue portion intended to
`be a side wall?
`MR. BRAHMA: The entire blue portion is intended to
`be a side wall. There are different ways that the Board could
`interpret the figures of this prior art reference. So certainly there
`is another coloring of this figure that we showed to Dr. Stevick
`during his deposition. And this is on slide 24. So one could
`alternatively consider the middle section to be the green portion
`and then the side walls to be the red and blue that are shown in
`this otherwise colored version on slide 24. And that is also an
`interpretation. We asked Dr. Stevick about this because we
`needed to get the admission from him, and he admitted it, that if
`you colored the portions of Figure 4A this way, then the red side
`wall extends upward from the portion -- the green portion of the
`middle section directly underneath it, and the blue side wall
`extends upward from the green portion of the middle section
`directly underneath it. So there are --
`JUDGE BUNTING: So counselor, I have another
`question here. So please help me understand. I know it's difficult
`because we are both looking at different things. So I'm looking at
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`your Figure 4A. So where is this edge and the "another edge"
`that we are talking about? Can you explain?
`MR. BRAHMA: Sure. And so if we go back to the
`original identification of these portions, and maybe it's best to
`look at the version of the image on slide 20, so on slide 20 there
`you can see so you have got the blue side wall and you have the
`green middle section. There is an arrow there that extends
`from -- so the base of the arrow is on an edge between the middle
`section and the blue side wall, and that arrow extends up into the
`side wall.
`JUDGE MELVIN: Is there a difference between edge
`and boundary?
`MR. BRAHMA: There could be a difference between
`an edge and a boundary. I mean, if you think of a boundary as a
`physical blockage, it isn't necessarily -- there are definitely
`interpretations of boundary that would also be edge. I know one
`of the arguments that patent owners made is that we argued that
`certain things were bounded the activity section and therefore, we
`supposedly admitted that they are outside of the activity section.
`JUDGE MELVIN: That's in a separate ground. So
`maybe we should talk about that.
`MR. BRAHMA: It is. With respect to that argument,
`and that argument was raised with respect to, I think, ground 4,
`maybe 4 and 5 of the '530 patent. There's a simple analogy that
`explains this. So if my backyard is bounded by a fence, that
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`doesn't mean that the fence is outside of my backyard and
`therefore, on my neighbor's property. It is still part of the yard. It
`just happens to delineate what the outer part of that yard is.
`JUDGE MELVIN: So in your identification of the '589
`patent, you used reference numeral 162 as the generally flat or
`horizontal portion, right, as part of the middle section. But that
`seems to overlap with the red colored side wall. So is that okay?
`MR. BRAHMA: Well, yes. So the numbering that is in
`the patent itself talks about 162 covering basically all of the A
`portions, 212A to 216A, which would be the substantially flat
`portions. And then 120 prime covers all of the B sections, I
`think, 212B to 216B. So admittedly, the use of the '589's
`numbering strictly was perhaps a little confusing. That's why we
`tried to put the coloring in to make it a little bit clearer as to what
`particular portions we were talking about.
`But so if you look at the coloring, this coloring -- so as I
`previously mentioned, the version of Figure 4A that has the blue
`and the red, that was in our petition. The green section was
`colored in, and so this image is actually from patent owner's
`response. That green section is intended to show what is the
`middle section.
`So the middle section has that substantial flat inclined
`part which is the -- to more precisely use the numbers, it is the
`213A, 214A and 215A parts of 162. And then there is another
`portion of that middle section that is sloped upward.
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`JUDGE MELVIN: Is it your view that an edge of the
`middle section can be somewhere other than the boundary of the
`middle section?
`MR. BRAHMA: I think the edge -- well, an edge of the
`middle section has to be somewhere on the boundary. It does not
`have to be the whole boundary.
`JUDGE MELVIN: Why would a person of skill, then,
`look at this figure and look at the line between the red and green
`portion and identify that as a boundary of the substantially flat
`portion?
`MR. BRAHMA: Are you asking why it would be
`identified as it is in this image?
`JUDGE MELVIN: Right. It seems to me looking at it
`that the bottom -- it's 216A -- is part of the substantially flat
`portion of the ride surface.
`MR. BRAHMA: Well, and it could be. A person of
`ordinary skill could interpret it that way. And that's, I think, what
`is shown in the other version that we were looking at on slide 24.
`Is this what you are referring to?
`JUDGE MELVIN: Right. But that's not what you
`relied on in the petition, correct?
`MR. BRAHMA: I think in the initial petition, we
`actually argued as what we had seen on the slide before. So there
`are multiple ways for the Board to interpret this. I think even if
`the Board colored it this way on slide 24 -- the image shown on
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`slide 24 where all of 162 is viewed as the substantially flat
`inclined middle section and the red and blue side walls are just
`parts 212B and 216B, that still would fit the limitations of the
`claim.
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`And we asked Dr. Stevick about that at his deposition.
`He confirmed that the side wall extends upward in this coloring
`of the Figure 4A of the '589 patent. But it is not necessary -- the
`Board is not limited to finding that that's the only identification of
`side walls that would work to meet these claim limitations.
`JUDGE KAUFFMAN: Can I ask you, you keep saying
`that the Board is not limited to interpreting that way. Aren't we
`bound by the way you have asserted it in the petition?
`MR. BRAHMA: Well, so that alternate coloring was in
`response to Dr. Stevick's arguments at the deposition. So if the
`Board was to actually consider Dr. Stevick's arguments, then it is
`allowed to also consider the response. Now, certainly if you
`throw out Dr. Stevick's statements about it not extending
`upwardly because he's viewing it as a half-pipe and all that, if you
`disregard Dr. Stevick's testimony, then there's not really an
`opposition in which case the Board should just follow through
`with its reasoning from the decision to institute.
`JUDGE MELVIN: That argument from Dr. Stevick
`isn't the same as the opposite argument.
`MR. BRAHMA: Well, it is in a --
`JUDGE MELVIN: There might be some overlap.
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`MR. BRAHMA: There is overlap in the sense that the
`basis for all of these arguments is that the term "opposite"
`requires a half-pipe ride. And therefore, because a half-pipe ride
`is required, you have to look at the entire edge, you draw lines
`perpendicularly. All of that stuff stems from that first mistake.
`JUDGE MELVIN: Can you point me to what you think
`is best, in the record, connecting patent owner's “extending from
`an edge” argument and the half-pipe interpretation?
`MR. BRAHMA: I will try to point you to that.
`JUDGE MELVIN: I'm fine with you doing that on your
`rebuttal. Just keep that in mind I'd like to know that.
`MR. BRAHMA: Sure. I think if we go to slide 23, so
`there is this deposition testimony from Dr. Stevick. This is
`talking about the definition of the edge and whether it has to be
`the whole line across, you know, separating that long blue side
`wall and the green section. And in that discussion of the edge
`and why it has to be a perpendicular arrow, he refers to, if you see
`the bottom answer there, you don't have an opposing half-pipe
`configuration.
`A half-pipe configuration should have nothing to
`do -- or you would not be able to tell from the arguments in the
`patent owner's response that reading in a half-pipe configuration
`had anything to do with his arguments about whether the edges
`had been delineated in the decision to institute or whether the side
`walls were substantially upward. So this discussion we are
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`having about opposite, that all stems from Dr. Stevick's
`deposition testimony that this was the fundamental misconception
`he had about the claims, and that's why he came to these opinions
`about whether the side walls extended upward or not.
`And while we are on that topic of whether the side
`wall -- how you draw the arrows basically to show whether the
`side walls extend upwardly, we had previously looked at slide 20
`where it clearly shows. You can draw arrows that extend
`upwardly from the edge of the middle section into the side wall.
`What Dr. Stevick draws is somewhat different. He draws those
`small arrows that extend from the -- what's identified as the edge
`of the middle section and another edge of the middle section. He
`said that the way he decided how to draw those arrows was that
`he --
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`JUDGE MELVIN: I think we understand this point of
`the argument. Since you are into your rebuttal time, we'll go
`ahead and hear from patent owner and then we'll hear from you
`again.
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`MR. SCHINDLER: Your Honor, can you give us a
`second to switch cables?
`JUDGE MELVIN: Sure. No problem.
`MR. SCHINDLER: And may I approach the bench?
`We have colored copies.
`JUDGE MELVIN: Sure.
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`MR. SCHINDLER: And Your Honor, we are going to
`give three if you want it to be shipped. We have a third one.
`JUDGE KAUFFMAN: Would you document for the
`record, please, that these have been provided to --
`MR. SCHINDLER: Yes, those are the identical what
`was filed with the Court, yes. Before I start my time, am I going
`to get any of those red lights or can I have a hint of five minutes
`left or something like that? I will try to look and do this, Your
`Honor. I don't know if the lights are working. Sometimes they
`do. Sometimes they don't.
`JUDGE MELVIN: Did the red light come on that time?
`MR. SCHINDLER: No.
`JUDGE KAUFFMAN: We will try to give you a
`five-minute warning.
`MR. SCHINDLER: I appreciate that. Judge Bunting,
`can you hear me?
`JUDGE BUNTING: Yes, I can.
`MR. SCHINDLER: Thank you very much.
`JUDGE MELVIN: I'll give you a five-minute warning.
`MR. SCHINDLER: Good afternoon, Your Honors. Let
`me first clear up one issue so we can get past it. We are not at all
`arguing that "opposite" is not in the references. So we can go
`past this issue.
`JUDGE MELVIN: Okay.
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`MR. SCHINDLER: So what we would like to do, and I
`think a lot of your questions were really directed at that, is the
`question you can see that there was a first position taken by
`petitioner with regard to this reference '589 and then a second
`position, and I would like to talk about it. But before I do that,
`you can notice from petitioner's slides that they never went to the
`spec. Our spec, because when we want to argue what does a first
`curved side wall mean, what is from an edge, the first thing you
`should do is go to the spec and go to the drawings.
`JUDGE MELVIN: You didn't argue that these claims
`should be interpreted in any particular manner, did you?
`MR. SCHINDLER: No, no, I'm arguing it the way the
`spec shows it. So if we go to our figures, I mean, in other words,
`I'm not giving any particular explanation other than what our spec
`shows.
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`JUDGE MELVIN: Is that different from a claim
`construction argument?
`MR. SCHINDLER: No, it's not, because I'm not asking
`you to construe an edge to mean anything but an edge. And in
`order for you to understand what an edge is, you go to the spec.
`We were arguing whether it's a point, whether it's a boundary.
`And the answer is the spec just shows you. The drawings show
`you that. So I'm not putting forth any claim construction on that.
`I think what we are arguing is, and you can see the way petitioner
`has changed from their colored diagram from all color to a little
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`color, from this arrow and so forth, and all I'm saying is and we'll
`show you that our expert drew arrows very consistently with what
`the spec shows. So I'm being consistent with what our expert
`argued.
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`JUDGE MELVIN: Your expert -- as I understand your
`argument regarding curved substantially upwardly, it is that the
`side walls must be curved upwardly from all points along the
`edge. Not just some points along the edge.
`MR. SCHINDLER: Correct. That's exactly what we
`are arguing. So if we go to slide 18, let me go back --
`JUDGE BUNTING: Excuse me, counsel. So going
`back, can you point to where in the spec it supports your
`position?
`MR. SCHINDLER: Yes. So if you go to slide 18, for
`example, 18 is Figure 11. And the diagram of Figure 11, we
`colored it in, but those that are identified as the edge, those
`numbers are directly Figure 11 of our spec.
`JUDGE MELVIN: But that's just a figure.
`MR. SCHINDLER: That's a figure that identifies an
`edge. It identifies side walls and identifies a middle section.
`JUDGE MELVIN: And what is the key characteristic
`here? It's that there is some place on the side wall that's higher
`than the highest point in the middle section?
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`MR. SCHINDLER: That all of the points on the edge,
`if you look at both side walls, first and second side walls, every
`single point is upward from the middle section.
`JUDGE BUNTING: And counselor, can you show me
`anywhere in your written description, I understand your drawings
`show it, but what about in the written description where it
`describes the edge?
`MR. SCHINDLER: So I will agree with you, Your
`Honor --
`JUDGE BUNTING: Of a description of the activity
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`section.
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`MR. SCHINDLER: So the answer is there's nothing in
`the spec that I can say an edge is a full-length line. What I will
`posit is that the drawings must be part of the specification and
`must be viewed when interpreting what an edge is and what side
`walls are. I mean, why else do you put figures into a patent?
`JUDGE MELVIN: Well, they seem to be examples,
`right? And your patent does state that they are merely examples
`and that the invention is not necessarily so limited. So why
`would I read anything beyond the words of the claim in that case
`when you are talking about a word like "edge" that's very
`straightforward?
`MR. SCHINDLER: Right. Because if you go to -- we
`have a slide that shows all the other figures. So if you go to every
`figure here --
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`JUDGE KAUFFMAN: We are on slide 6?
`MR. SCHINDLER: We are on slide 6. Sorry, Your
`Honor. Every figure shows what we are talking about, that
`upward side walls and that there is a middle section that's
`between the two side walls.
`JUDGE MELVIN: Has the Federal Circuit ever held
`that we should limit the plain words of the claim when all figures
`are consistently one way but the specification contains no text
`relevant to that?
`MR. SCHINDLER: Your Honor, I cannot answer that,
`but I will -- you will agree that the specification includes the
`drawings. And in a September 28th case, In Re Wright, where the
`term "body" was being interpreted just in the Federal Circuit just
`recently, the Federal Circuit specifically said that you can't make
`any probable -- the quote that the Federal Circuit specifically said
`with regard to that was -- I mean, this is the quote from the
`Federal Circuit, September 26th, the Board emphasized that the
`patentee here did not access a lexicographer. However, following
`such logic, any description short of an express definition or
`disclaimer in the specification would result in adoption of the
`broadest possible interpretation of a claim term irrespective of
`repeated and consistent description in the specification. That is
`not properly giving the claim term its broadest reasonable
`interpretation in light of the specification.
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`So I would say in light of the specification, you have to
`interpret what edge is. You got to know that. I mean, we can all
`speculate what an edge is. I'm not asking you to give it anything
`but what the broadest reasonable interpretation of an edge is.
`JUDGE MELVIN: That doesn't advance the ball to say
`that I should apply the claim construction standard. Of course
`that's the standard we apply. The question is, where does that get
`us to? And the point that it gets us to is a claim construction.
`And as I understand it, you haven't argued for a claim
`construction.
`MR. SCHINDLER: No, we haven't, because --
`JUDGE MELVIN: That's the same as arguing that the
`claim need not be construed.
`MR. SCHINDLER: Correct. But when you look at a
`figure -- so let's go to slide 19. So this is in our expert report.
`These are the arrows that were drawn, right. And t
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