Trials@uspto.gov
`571-272-7822
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`Paper No. 27
`Entered: May 6, 2020
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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.
`
`__________
`
`Case IPR2019-00148
`Patent 9,451,873 B2
`__________
`
`Record of Oral Hearing
`Held: April 15, 2020
`__________
`
`Before BRIAN J. MCNAMARA, NEIL T. POWELL, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
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`
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`571-272-7822
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`Paper No. 27
`Entered: May 6, 2020
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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.
`
`__________
`
`Case IPR2019-00148
`Patent 9,451,873 B2
`__________
`
`Record of Oral Hearing
`Held: April 15, 2020
`__________
`
`Before BRIAN J. MCNAMARA, NEIL T. POWELL, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`
`
`
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`
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`Case IPR2019-00148
`Patent 9,451,873 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONERS:
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`
`TODD R. WALTERS, ESQ.
`Buchanan Ingersoll & Rooney PC
`1737 King Street, Suite 500
`Alexandria, VA 22314-2727
`703-838-6556
`todd.walters@bipc.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`KRISTINA CAGGIANO KELLY, ESQ.
`Sterne, Kessler, Goldstein & Fox P.L.L.C.
`1100 New York Ave, NW, Suite 600
`Washington, DC 20005
`202-772-8524
`kckelly@sternekessler.com
`
`
`
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`The above-entitled matter came on for hearing on Wednesday, April
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`15, 2020, commencing at 2:30 p.m. Eastern time via teleconference.
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`2:40 p.m.
`JUDGE MCNAMARA: So, let's go back on the record.
`And just if the Petitioner could identify who's going to be speaking?
`This is IPR2019-00148.
`MR. WALTERS: So, this is Todd Walters, Your Honor,
`representing Petitioner 3Shape A/S and 3Shape, Inc. And I have here with
`me today Andrew Cheslock.
`JUDGE MCNAMARA: Okay. Mr. Walters, are you speaking on
`this one?
`MR. WALTERS: I am, yes, Your Honor.
`JUDGE MCNAMARA: Okay. Great.
`And for the Patent Owner?
`MS. KELLY: Yes, Kristina Caggiano Kelly here for Patent Owner
`Align, and with me is Jason Eisenberg.
`JUDGE MCNAMARA: Okay. And again, Ms. Kelly, are you
`speaking for the Patent Owner on this one as well?
`MS. KELLY: Yes.
`JUDGE MCNAMARA: Okay. Great.
`All right. The same instructions as our last hearing. Identify the
`documents you're referring to and identify yourself as you speak. We will
`try to do that as well.
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`And let me see. I guess each side gets 30 minutes, and we'll begin
`with the Petitioner. Mr. Walters, how much time would you like to reserve
`for rebuttal?
`MR. WALTERS: I would like to reserve 10 minutes, Your Honor.
`JUDGE MCNAMARA: Okay. Great. All right. Proceed when
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`ready.
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`STATEMENT ON BEHALF OF PETITIONER
`MR. WALTERS: May it please the panel, I am Todd Walters,
`representing 3Shape A/S and 3Shape, Inc. I have with me today Andrew
`Cheslock. We're talking about U.S. Patent 9,451,873. And I'm going to
`reserve 10 minutes.
`Today's presentation, I'm going to be referring to demonstratives that
`were filed with the panel. And if you go to Demonstrative No. 2, there is
`one ground. It is Kopelman in view of Paley. We're going to be focused
`on that ground today, of course.
`If you go to Demonstrative No. 3, the '873 patent relates to a method
`of forming intraoral models that involve receiving and locking images. The
`independent claims in the '873 patent are Claims 1, 11, and 20.
`If you go to Demonstrative No. 4, again, I had originally planned to
`cover claim construction, the institutional grounds, as well as some
`evidentiary issues. But, given time constraints, I'm going to mostly focus
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`on the claim construction issues and the grounds issues that were raised in
`Patent Owner's demonstratives.
`Going to slide No. 5, this is the beginning of the claim construction
`section. I'm going to cover that first. And there are two areas where the
`parties have dispute on claim construction. One is the claim term "identity
`of an intraoral site," and two is the locking that's referred to in the claims.
`In Patent Owner's Preliminary Patent Owner response, where Patent
`Owner did not offer constructions, but now Patent Owner offers
`constructions that Petitioner believes inappropriately narrow the construction
`of the claims to avoid the prior art.
`If we go to Demonstrative No. 7, you will see that in the Patent
`Owner's sur-reply the Patent Owner indicated the identity must be some sort
`of designation unique to that tooth. And let me just refer back again to
`Demonstrative 6 and Patent Owner's construction of identity is to require a
`"designation of a tooth or portion of a jaw that specifies a location in the
`intraoral space". Actually, what Patent Owner has done all along is
`continue to add limitations to that construction throughout their filings.
`And Demonstrative No. 7 kind of demonstrates that. It says that
`that term also must require some unique designation. And then, their sur-
`reply, and Dr. Bajaj went on to explain that that unique designation needs to
`be some kind of a code or unique tooth number. And it's Petitioner's
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`position that the identity term does not require the tooth numbering or some
`unique tooth numbering for one to have the identity of a tooth.
`And just in looking at --
`JUDGE MCNAMARA: This is Judge McNamara again.
`The claim term in Claim 1 says, the limitation says, "determining an
`identity of the first intraoral site". Okay? So, what is the identity of a first
`intraoral site, if not something that specifies a location as to where that site
`is? I need to know where the first intraoral site is on the left side or the
`right side --
`MR. WALTERS: Your Honor --
`JUDGE MCNAMARA: -- if it's the top or the bottom.
`MR. WALTERS: Your Honor, I don't think the Petitioner is
`disputing that the identity term requires some identification of the intraoral
`site that will be the focus of the method. What we are disputing is that you
`have to identify it by a particular tooth number or some naming convention
`that is unique to dentistry. What we're saying is all it requires is that you
`provide its identity. It can be a marking. It can be any other thing that
`would tell you what is the area of the site that will be the focus of the
`method.
`And if you look at --
`JUDGE MCNAMARA: So, what is the proposed construction?
`And I'm looking at your slide 7, for example. It says it is the "designation
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`of a tooth or a portion of a jaw that specifies a location in the intraoral
`space". Is that an adequate -- why is that not a proper construction? It
`doesn't have to be a designation or a tooth number, right? It could be some
`other thing that works for a particular model. I could, for example, develop
`a model that has 500 points top and bottom, 500 points on the bottom of the
`jaw and, say, you know, an identity of an intraoral site is spots 23 through
`36. But all we're saying is it's a designation of a tooth or a portion of a jaw
`that specifies a location in the intraoral space. Is there anything not
`appropriate about that particular definition? And if there is something
`inappropriate, what's wrong with it?
`MR. WALTERS: So, we're in agreement that, as Petitioner
`reviewed, that the identity is indicating the area in the intraoral cavity that
`you're focused on. What we're having a disagreement with Patent Owner
`over is that it has to be some unique numbering convention of a tooth
`numbering that is used in dentistry or some other unique designator that is
`only applicable to dentistry. What we're saying is that it can be any kind of
`a marking, such as placing a marking on the image outlining the area that
`you're going to be focused on.
`JUDGE MCNAMARA: Okay. But I'm reading the Patent Owner
`response saying identity of an intraoral site is properly construed as, quote,
`"a designation of a tooth or portion of a jaw that specifies a location in the
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`intraoral space". Is there anything about that particular construction that
`doesn't work?
`MR. WALTERS: I'm trying to find, Your Honor, exactly where in
`the Patent Owner response that you're referring to.
`JUDGE MCNAMARA: It's in the Patent Owner Response. It's
`going to be on -- let me see -- page 17. It's their proposed construction. It
`says, "Claim construction. An identity of an intraoral site is properly
`construed as, quote, "`a designation of a tooth or portion of a jaw that
`specifies a location in the intraoral space'." That's exactly what you have on
`slide 7. And if we adopt that as a construction, is there any dispute as to
`what identity means?
`MR. WALTERS: As long as that construction would not exclude
`some kind of a physical marking in the image or the model.
`JUDGE MCNAMARA: Okay. All right.
`MR. WALTERS: And we would be fine with that. What we're
`saying is it does not have to be some unique identifier designating a location
`through number or symbol or anything else. It's not that limited.
`JUDGE MCNAMARA: Okay. But we can't have something
`that -- in determining the identity of an oral, intraoral site, we agree that it
`has to be uniquely identified, right? We can't have, let's say, the same
`identification for two different places in the oral cavity, right?
`MR. WALTERS: That we're fine with, Your Honor.
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`JUDGE MCNAMARA: Okay.
`MR. WALTERS: What we were concerned about is their use of the
`phraseology of a tooth number, referring to tooth numbers that are used in
`dentistry. The claim doesn't require that.
`JUDGE MCNAMARA: Right.
`MR. WALTERS: Or some kind of other unique identifying symbol
`or something like that.
`JUDGE MCNAMARA: Well, a tooth number might be one way to
`do it. Some other way to do it is, as I gave sort of an example, points.
`There may be any myriad number of ways of doing it. I'm not sure I
`understand what you mean by a physical mark, but I'll let you develop that a
`little bit further.
`MR. WALTERS: Yes. But, just for example, Your Honor, if we
`could go to the '873 patent and look at column 4, line 54, and they there
`describe the identity of a procedure that may be input into the system. And
`they say it can be in any other suitable way; for example, by means of preset
`code, notation, or other suitable manner.
`And I think where you were going with this, we would agree with.
`But what we are saying, what we disagree with, that it has to be some unique
`numbering system. It may be a unique numbering system, but it doesn't
`need to be one.
`JUDGE MCNAMARA: Okay.
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`MR. WALTERS: If we're on to slide 8, again, the claims
`themselves do not require some kind of a designation of a tooth or a
`designation unique to a tooth number or a portion of the jaw that specifies a
`location in the intraoral space.
`If we go to slide 10, there, if you start looking at their
`specification -- and this is slides 10, 11, 12 -- again, it says nowhere in the
`specification that identity requires a particular type of tooth numbering
`system. Again, these things are not found anywhere in the specification,
`much like you've seen in other IPRs between the parties.
`In fact, Patent Owner has indicated that other designations are
`possible. That's slide 13. And if you go to slide 14, you see that in the
`patent itself, "This may improve an image quality of the first tooth in the 3D
`model of an intraoral site." The term "intraoral site" is not limited to teeth
`in this, in the specification. It can be a portion of the jaw.
`I'm going to move on to the locking term.
`JUDGE MCNAMARA: Before you move on to that locking
`term -- again, Judge McNamara here -- before you move on to that locking
`term, there was an argument, again, I think in the Patent Owner response,
`and it is in the claim construction section -- it's somewhere around pages 18
`and 19 of the Patent Owner Response -- that deals with this question of
`suitability. Would you have any comments on what that was about? It
`says, "It appears the Board, the Petitioner and the Board, have equated the
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`claimed identity as the tooth abutment that will receive the prosthesis or
`several teeth, including the tooth abutment in the patient's mouth." And
`then, the analysis to determine the suitability of the physical part doesn't
`completely capture the identity. Could you comment on that? I'm
`certainly going to ask the Patent Owner to comment on it, but, as a
`Petitioner, I wanted to know what you have to say about that.
`MR. WALTERS: I think this gets to part of the issue that we have
`with their claim construction, Your Honor. I have to admit, I don't
`completely understand their argument. But, to the extent they're saying that
`the identity requires you to identify a tooth by tooth number, they're saying
`that the prior art is not there, and that simply identifying an area of interest
`that you want to work on is not sufficient. We completely disagree with
`that argument.
`JUDGE MCNAMARA: Okay. Well, they wrote it. So, we'll hear
`more from them about it, but I just wanted to give you a chance to address it
`because it was something that came up. And it came up in the construction
`analysis.
`So, please feel free to move on in any way you like.
`MR. WALTERS: Again, with regard to the term "locking," Patent
`Owner is now indicating that locking requires some exclusive associating of
`data from an image or a set of images with an identity of an intraoral site.
`And there's really two components to that.
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`One is the associating an image to an identity, which the claim does
`not specifically say. And there is no mention of exclusively associating in
`the claim language, either. In fact, if you go to the specification, anything
`that they have relied upon to support this construction is really optional, and
`there's nothing in the specification, either, if you look at Demonstratives 18,
`19, and 20, and so forth. Patent Owner just has not pointed to anything that
`would support those constructions. So, we believe that their constructions,
`once again, are importing limitations to try and avoid the prior art.
`So if I can move to the grounds section.
`JUDGE MCNAMARA: Before we move to the grounds sections,
`let's unpack that just a little bit. Again, looking at the claim, Claim 1, the
`method, and the first step of the method is you receive an intraoral image of
`a first intraoral site. And then, the algorithm that will be performing the
`processing includes "locking the intraoral image". So, it's the image, the
`intraoral image is the intraoral image that I receive, is that correct?
`MR. WALTERS: That's correct.
`JUDGE MCNAMARA: Okay. So, I have locked. And lock it,
`then, does lock it mean anything more than just freeze it, store it, save it?
`What is the Petitioner's view as to what "lock it" means?
`MR. WALTERS: So, locking, in Petitioner's view, is creating a
`portion of the image that will not be distorted or modified after adding
`additional data to form a --
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`JUDGE MCNAMARA: But this is just the first step of the model.
`I don't know that affects -- it may very well be, but, then, they unlock it or
`they do something with it later. But, right now, all it says is I receive the
`image and I lock it. So, that's as far as I've gotten in the claim so far. I'm
`going to receive this image, and then, I'm going to -- that part, the first part
`of the first step in the processing is to lock the image, locking the intraoral
`image. Does that mean anything other than just here's the image that I
`received and I'm just going to save it?
`MR. WALTERS: I think that's a fair assessment of locking at that
`point in the claim, but there is further parts of the claim that, basically, get
`you to the point that you are disregarding any data from other images that
`will spatially overlap with that locked image data.
`JUDGE MCNAMARA: Right, and that very well may be true, but
`we're talking here about what the step of locking the intraoral image means.
`And so, the step of locking is just locking the intraoral image.
`That's just a comment. You can go right ahead.
`MR. WALTERS: Okay. So, we were on slide 23, Your Honor.
`And I'm checking my time.
`There are a couple of things that Patent Owner indicated that
`Kopelman in view of Paley does not disclose. One is determining an
`identity of the first intraoral site. And Kopelman teaches this both manually
`and automatically, the determining an identity of the first intraoral site.
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`And if you look at Demonstrative 25, specifically looking at page 21,
`line 27, to page 22, line 3, Kopelman says, "While this analysis may be
`visual and intuitive analysis by the user, the analysis may be optionally
`carried out by the computer system...using suitable software, wherein the
`analysis may be fully automated or interactive with the user." And then, it
`goes on and it talks about, "The first virtual model VM1 can then be checked
`visually by the user via the image DI1 on the display 32."
`The Board recognized these disclosures that are cited on this slide
`from Kopelman, that it renders this portion of the claim obvious. And
`Patent Owner really hasn't presented any new arguments to change that
`analysis.
`If you go to Demonstrative 27, this is the locking of the intraoral
`image. Kopelman also discloses locking the intraoral image. For example,
`if you look at Demonstrative 28, it says, "The modified" -- in Kopelman at
`page 35, lines 11 through 25, Kopelman says, "The modified first 3D virtual
`model, VM1 prime, is locked because the data of the modified first 3D
`virtual model, VM1 prime, is not changed."
`If you go on to slide 30, Kopelman goes on and says, "part DVM2 is,
`then, stitched to modified first virtual model, VM1, in a virtual manner to
`create a further modified first virtual model". This is consistent with the
`specification of the '873 patent at column 13, lines 43 to 48, and shows the
`locking step that you were referring to earlier.
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`I want to go to slide 33. Here is the selecting step. And again,
`Kopelman describes the selecting step from the claims. It discloses
`deleting, removing, replacing the part DVM1 of the first 3D virtual model,
`VM1. And here, you can look at Figure 4 of Kopelman to see where that is
`disclosed.
`And I'm being told I have reached my time limit. So, I'm going to
`stop there and leave everything else for rebuttal.
`JUDGE MCNAMARA: Okay. I did ask a lot of questions. If
`necessary, we may be a little liberal on the rebuttal timeframe. But that
`sounds fine. There's about seven minutes. I have about seven minutes left
`on your clock.
`MR. WALTERS: Okay. Thank you, Your Honor.
`JUDGE MCNAMARA: All right. And we can hear from the
`Patent Owner.
`STATEMENT ON BEHALF OF THE PATENT OWNER
`MS. KELLY: All right. Thank you, Your Honor. Kristina
`Caggiano Kelly here. And I mentioned earlier that I have Jason Eisenberg
`with me. I also have Rob Sterne with me as well on the line, but I will be
`the one speaking.
`JUDGE MCNAMARA: Great. And do you want about 10
`minutes for rebuttal as well, or what?
`MS. KELLY: Yes, please.
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`JUDGE MCNAMARA: Okay. Great.
`MS. KELLY: All right. So, the Kopelman reference that uses
`prior art in this case actually is related to the '192 patent that we were talking
`about previously. So, I don't want to deprive the record in this case, but I
`also don't want to bore you by explaining this technology all over again,
`considering I just told you about it for a half an hour.
`So, when we talk about the Kopelman reference, we are talking
`about a method of editing a model, and the same distinction I talked about
`before where there are two ways of approaching this. There is sort of data
`curation at the data level on the front end, and then, there's editing models on
`the back end. Kopelman is editing models on the back end, and the '873
`patent is about curating data and parsing data and designating certain pieces
`of data to render certain portions of a model. And that's all being done on
`the front end to generate the perfect model from the beginning.
`And then, Kopelman is about what happens if you've generated a
`perfect model of a pool of saliva or a perfect model of a smear of blood or a
`perfect model of a tooth that no longer accurately represents your dental
`history. Here is how we can go into the model after the fact and cut and
`paste pieces of new models or delete part of the model you don't like and,
`then, build a new model in that corresponding space that reflects the updated
`dental history.
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`And the petition itself and Petitioner's expert, all admit in this case
`that Kopelman does not disclose a method of parsing and curating data. It
`just does not disclose that aspect of all of the claim limitations of the '873
`patent. What they do is they rely on Paley for its very general teaching that
`models are built out of scanned image data, and then, they say one would
`use that general teaching as motivation to modify Kopelman to perform
`Kopelman's editing method on the individual images as they are being
`scanned.
`So, right off the bat, the petition does not actually cite Kopelman for
`disclosure of all the limitations. It is their modified version of Kopelman
`that they are, then, citing for all of the limitations.
`Let's go to Patent Owner's slide 4, and let's start talking about what
`are these terms that are in dispute. So, the first term that we heard that is in
`dispute is this identity of a first intraoral site. Now all of the arguments in
`the Petitioner's response and all of the arguments in all of the Petitioner's
`slides are focused on this tooth-numbering system argument. Patent Owner
`never said it has to be the tooth-numbering system. That was always just
`one example of what do we mean when we say "identity". All right?
`Like my identity, I am Kristina. I am -- you could use my Social
`Security number. That is my identity. But an outline of my body is not my
`identity. My identity is something meaningful that identifies me in that
`way, not just identifies my outline, or something like that. It could be a
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`naming convention. You could say, you know, lower left bicuspid. That
`could be the identity of a tooth. It could be, like I think Judge McNamara
`suggested, some other coordinate system that the computer comes up with.
`That could be the identity of the intraoral site.
`And, yes, it doesn't just have to be a tooth. But, in the practice of
`dentistry, the intraoral sites are typically referred to by tooth number, even if
`there isn't a tooth there. They would just say, you know, the site for No. 9,
`even if No. 9 is a bridge or a crown or it's just a missing tooth. That's just
`the convention that dentists use, but that's not what it would have to be.
`We've always said that. So, this tooth-numbering argument is not a
`limitation we're trying to import that I think is just a red herring argument.
`So, in response to the question --
`JUDGE MCNAMARA: This is Judge McNamara.
`MS. KELLY: Yes, go ahead.
`JUDGE MCNAMARA: I had asked the Petitioner what they
`understood you to have meant in the Patent Owner response about this
`discussion of the analysis to determine the suitability. And I guess, since it
`came from the Patent Owner Response, I guess I should give you a chance to
`address it. What specifically did you mean, did the Patent Owner mean, on
`page 19 of the Patent Owner Response and that discussion about
`determining the suitability of a physical part is not part of the identity? I'm
`not sure I ever saw where anybody made that argument.
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`MS. KELLY: Yes. Sorry. The Petitioner argued, and Petitioner's
`expert also in his declaration argued, that Kopelman satisfies the
`determining and identity of the first intraoral site step when Kopelman talks
`about a dental practitioner or potentially a computer analyzing the suitability
`of a preparation tooth for a crown. And the argument there was, well, if
`you're analyzing the suitability of a tooth for a crown, you must know what
`tooth you're looking at. Therefore, you must have determined its identity at
`some point. And so, therefore, the limitation is satisfied.
`And our response to that was -- and we addressed it in the claim
`construction section -- was that that has nothing to do with determining the
`identity. The suitability analysis is determining whether the finish line is
`sufficiently clear on the preparation tooth. It has nothing to do with which
`tooth you're looking at, and determining the identity of the tooth is
`something that was done in the mind of the dentist as they're looking at the
`model. That also does not satisfy the step because we're talking about
`algorithmically performing something based, at least in part, on the identity,
`meaning the computer has to know the identity. And the computer knows
`the identity either because you had to input that as one of the steps in the
`algorithmic method or the computer algorithmically determines the identity
`using perhaps a reference model that has all of the teeth numbered in it, or
`something like that.
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`So, that was a response to one of Petitioner's experts' arguments as to
`what are the different ways Kopelman has identity. Because, as is clear
`from actually reading Kopelman, the concept of identity appears nowhere.
`So, Petitioner first was pointing to the suitability analysis saying, well,
`incidentally, as part of that, identity has got to be involved somehow. Since
`then, Petitioner's identity argument I think has migrated a little bit. And
`now, it focuses more on tracing the outline of the portion of the model you
`want to delete in the Kopelman method, and says, well, when you trace that
`outline, you've identified the portion of the model you want to delete, which,
`then, in turn, conversely, identifies the portion of the model you want to
`keep. And so, then, you've determined that identity.
`And our response to that is a person tracing an outline of something
`they want to delete, for any variety of reasons, is not determining the identity
`of an intraoral site. If something has a smudge on it, it doesn't matter which
`tooth that is. Somebody who doesn't even know the identity of the tooth
`could say, "I see a smudge. I'm going to delete that and replace it with an
`image that doesn't have a smudge on it."
`Here, for the '873 patent, it's essential to determine the identity of the
`intraoral site because that leads to the concept of locking and the concept of
`how locking renders the model, which I guess segues into the next claim
`construction term.
`JUDGE MCNAMARA: Before you --
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`MS. KELLY: Sure, go ahead.
`JUDGE MCNAMARA: Before we segue into locking, the question
`I have on identity, on determining the identity, is, would it be fair to
`determine the identity -- I could say I could determine the identity by
`determining the shape of a particular item. So, it's the item that has that
`particular shape. Is that a way? Because it's, again, the claim doesn't say
`any specific method to determine the identity.
`MS. KELLY: Sure. So, I think the answer to your question is yes,
`but let me explain a little bit.
`JUDGE MCNAMARA: Uh-hum.
`MS. KELLY: So, if, for example, the computer recognizes an
`outline of a tooth, and let's say it's a canine. That's the tooth that has the
`single point. It's sort of easy to identify by its shape. And the computer
`might look at the shape of the canine and say, oh, this is the lower left
`canine. They have determined the identity of the shape, the identity of the
`site being the lower left canine, but pointy tooth, just the outline of the tooth,
`that is not the identity. That is the way you determine the identity. Does
`that make sense?
`JUDGE MCNAMARA: I understand, yes. Sure. Yes, I was
`thinking, again, actually of almost like the old way people used to try to
`teach, you know, from the tree to the rock, to the fence, to the something or
`other. And now, we use much more specific longitude and latitude and
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`other coordinates and that sort of thing. So, yes. Okay. That makes
`perfect sense.
`MS. KELLY: Yes. There could be countless different ways of
`articulating the identity, but the concept there is still the same. The tooth
`has an identity, and the shape of the tooth may be how you determine the
`identity, but the shape is not itself the identity.
`JUDGE MCNAMARA: Uh-hum. Okay.
`MS. KELLY: Which is why looking at simply drawing an outline
`of something, on Kopelman, while you may be identifying a portion of a
`model that is undesirable, you haven't necessarily determined the identity of
`what's in that portion. That's a different type of analysis. The word
`"identity" is different than the word "identify".
`JUDGE MCNAMARA: Okay.
`MS. KELLY: And, yes. And Dr. Valley spoke to that as well and
`said that any dentist who reads this would immediately think that, you know,
`identifying something, drawing a line around it is different than the identity,
`which is usually expressed by something's name or number, or some other
`kind of designation.
`So, that brings us to locking for the next step, if you are on Patent
`Owner's slide 4. So, first, the method comprising: "Receiving the intraoral
`image of the first intraoral site," and then, determining the identity is a step
`that comes separately from the algorithmically performing because
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`determining the identity could be done either by the user, who tells the
`computer the identity, or it could be done by the computer. Either way,
`once you go on to the next step algorithmically performing, now this is
`something that the computer is doing because it's part of the algorithm.
`And then, the first step of that is locking the intraoral image. And
`the reason why the computer needs to know the identity first is because -- or
`at least at the same time -- is because that data gets locked to a particular
`tooth, and it's locked based on the identity of that tooth. One of the places
`where you can look in the specification and get a better sense of what's
`going on, is, well, I mean, the entire specification, right? Locking is in the
`title of this patent. So, the entire thing is about locking.
`But one of the first place
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