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`Paper 93
`Entered: March 28, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CORNING INCORPORATED
`Petitioner,
`
`v.
`
`DSM IP ASSETS B.V.
`Patent Owner.
`____________
`
`Case No. IPR2013-00048
`Patent 6,298,189
`____________
`
`Held: February 11, 2014
`____________
`
`
`Before: JENNIFER S. BISK, FRED E. McKELVEY, GRACE
`KARAFFA OBERMANN, SCOTT E. KAMHOLZ and ZHENYU
`YANG, Administrative Patent Judges.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`
`MICHAEL L. GOLDMAN, ESQ.
`
`
`EDWIN MERKEL, ESQ.
`
`
`LeClairRyan, P.C.
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`
`70 Linden Oaks, Suite 210
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`Rochester, New York 14625
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`
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`and
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`
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`JEFFREY N. TOWNES, ESQ.
`LeClairRyan, P.C.
`2318 Mill Road, Suite 1100
`Alexandria, Virginia 22314
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`Case No. IPR2013-00048
`Patent 6,298,189
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`ON BEHALF OF THE PATENT OWNER:
`
`
`SHARON ISRAEL, ESQ.
`
`
`Mayer Brown, LLP
`
`
`700 Louisiana Street, Suite 3400
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`Houston, Texas 77002-2730
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`
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`and
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`JOSEPH MAHONEY, ESQ.
`
`
`Mayer Brown, LLP
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`71 South Wacker Drive
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`Chicago, Illinois 60606
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`
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`The above-entitled matter came on for hearing on Thursday,
`February 11, 2014, commencing at 2:12 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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`- - - - -
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`JUDGE BISK: Okay, I believe we're ready to go
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`on to IPR2013-00048.
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`MR. MERKEL: Good afternoon, Your Honors,
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`Edwin Merkel again for Petitioner Corning.
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`In IPR 48, we've got a number of grounds here,
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`and I'm going to focus pretty much on the first three, the
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`Shustack grounds 1 and 2 rely on the respective claims that
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`are directed to an inner primary coating that Corning is
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`relying on its formulation and testing of the Shustack I
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`formulation.
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`With respect to claims corresponding to those
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`grounds that identify the presence of both an inner and an
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`outer coating, we're relying on the combination of Shustack
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`1 formulation with either Shustack X or XI.
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`The third ground --
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`JUDGE KAMHOLZ: Counsel, are you conceding
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`Shustack Example IX?
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`MR. MERKEL: Yes, we are.
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`The third ground relies on the Szum '928
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`reference, and that's Example 5(b). At this point, we've
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`dealt with a number of issues that overlap with the IPR 45, I
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`don't plan to address those again. I'm going to focus on two
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`issues that we haven't addressed thus far. The first deals
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`with in exemplary Claim 1 here, it's element (a), the fiber
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`pull-out friction of less than 20 grams a millimeter at
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`stripping temperature. A similar limitation, I'll go to Claim
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`14, you'll see element (a ) that's a fiber pull -out friction of
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`less than 40 grams per millimeter at 90 degrees C.
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`So, there are some differences here in terms of
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`the actual value, 20 versus 40, and the stripping temperature.
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`There's no dispute as to the stripping temperature el ement.
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`The issue here is what does that claim call for in
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`terms of the construction, and the test that is used to
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`calculate this fiber pull -out friction value? And Corning
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`believes that its test was sufficient and valid and the results
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`demonstrate that the values fall within the claim range.
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`JUDGE KAMHOLZ: DSM takes the position that
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`your pull-out friction curves have no linear region.
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`MR. MERKEL: That is their assertion, yes.
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`JUDGE KAMHOLZ: What is your answer?
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`MR. MERKEL: Our answer is it d oes have a
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`negative sloping linear region.
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`JUDGE KAMHOLZ: Where?
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`MR. MERKEL: Where? It's the downward
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`sloping portion.
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`JUDGE KAMHOLZ: I mean what millimeter
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`measurements?
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`MR. MERKEL: At what millimeter
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`measurements? I don't have the exhibits in front of me right
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`now.
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`JUDGE KAMHOLZ: Is it two to six?
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`MR. MERKEL: It's the portion of the curve, I'm
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`going to try to do it backwards, it's in the upwards slope and
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`then in the downwards slope you'll see a region that goes
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`downwards like this. I t's not necessarily the same two to six
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`millimeter, that's what you said, Your Honor, it's not
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`necessarily the same two to six at every single slide. We
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`actually had our --
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`JUDGE KAMHOLZ: Is that the range as Dr. Ju
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`calculates on?
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`MR. MERKEL: Yeah, s o if you look at the
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`exhibits that Dr. Ju utilized, he actually calculated in the
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`same negative slope region, and he was able to identify that
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`there is, in fact, a negative slope that's linear.
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`JUDGE KAMHOLZ: Well, he can calculate a
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`slope. You can cal culate a slope from any set of points. On
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`what basis does he conclude it's linear?
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`MR. MERKEL: On the basis of the fact that you
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`can look at this region, and while there are data points above
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`and below the region, it is, in fact, a linear disposition o f the
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`curve.
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`JUDGE KAMHOLZ: That's awfully jittery.
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`MR. MERKEL: Yes, there is noise in that, and
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`that is a result of, one, the equipment used, there was no
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`dampening software in the equipment that Corning used.
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`Despite the noise, Dr. Ju testified that that noise is, in fact,
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`expected with some equipment, and does not in any way
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`negate the results of the test.
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`JUDGE KAMHOLZ: So, with what confidence
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`does he have -- with what confidence does he state that those
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`data are best fit to the linear curve? Or I should say a linear
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`plot?
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`MR. MERKEL: Oh, he used a least squares
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`analysis, and that is a linear analysis. So, he has high
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`confidence.
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`JUDGE KAMHOLZ: As I said, you can fit any
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`set of data with a regression, or least squares, to put a line
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`through it. What is his basis for concluding that a line, a
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`straight line, a plot with a single slope through all those
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`data, is the best fit for that data?
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`MR. MERKEL: That comes from his years of
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`experience in analyzing these sorts of pull -out friction
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`information.
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`JUDGE KAMHOLZ: I ask because, at least some
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`of these curves seem to be rather bumpy, and I don't just
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`mean jitter, because it's not low pass filter ed, for example,
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`and not damped.
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`MR. MERKEL: Right.
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`JUDGE KAMHOLZ: It seems to go up a nd then
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`down again. There is an initial peak when you're dealing
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`with static friction and then there's a sudden drop -off, and
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`then there's a second peak, just past two millimeters. How is
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`that linear?
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`MR. MERKEL: Well, it's not looking at the
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`initial first two millimeters, if you will, where you have that
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`peak, and then you may --
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`JUDGE KAMHOLZ: He included that in his
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`analysis.
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`to?
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`MR. MERKEL: Which exhibit are you referring
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`JUDGE KAMHOLZ: Well, I'm looking at the --
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`in the Taylor deposition, at paragraph 86, and then in the Ju
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`declaration, he doesn't actually reproduce those figures, but
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`he has the least squares at -- Exhibit 1059.
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`MR. MERKEL: So, you're referring to
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`Dr. Taylor's declaration or Dr. Ju's?
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`JUDGE KAMHOLZ: Dr. Taylor reproduces
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`Corning's curves, which I guess were produced to DSM.
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`MR. MERKEL: Correct.
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`JUDGE KAMHOLZ: Dr. Ju then in Exhibit 1059
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`presents his least squares analysis.
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`MR. MERKEL: And I'm turning to that.
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`JUDGE KAMHOLZ: That analysis spans two to
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`six, the line does not look linear to me, through that entire
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`range.
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`MR. MERKEL: Dr. Ju testified that he believed
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`that was the linear region.
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`JUDGE KAMHOLZ: Did DSM elicit any
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`response to that in cross examination?
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`MR. MERKEL: No.
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`With respect to the fiber pull-out friction, I want
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`to focus now on the claim language. In both Claim 1 and 14,
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`there's no indication of any test parameters beyond the
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`stripping temperature. Ninety degrees in one claim or just
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`generically stripping temperature as in Claim 1.
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`And the parties both agree that stripping
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`temperature covers a range of about 90 to 20 degrees -- or
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`120 degrees, excuse me.
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`So, besides this one element that's recited in the
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`claim, if we look at the specification, what other details are
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`in there for the fiber pull-out friction testing? If you look
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`down on the third line, it recites that there's -- the second
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`and third line, a bare, clean optical fiber, one end of which
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`has been embedded in a 250 -micron thick sheet of cured
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`inner primary coating to be tested. That's required in the
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`specification. The rate of pulling the fiber from the sample
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`is 0.1 millimeters per second, and the use of a suitable
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`instrument, such as the Rheometric RSA -II rheometer, and
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`the only other requirement, if you look furt her down, is that
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`the instrument records in plots force versus distance. So,
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`that's generating the force displacement curve that Judge
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`Kamholz was referring to.
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`Now, as described in Ms. Kouzmina's testimony,
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`this is Exhibit 1015, declaration 34, she con firmed, they
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`used a bare, clean optical fiber, one end of which was
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`embedded in a 260-micron sample. During questioning of
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`her four-day deposition, Ms. Kouzmina even drew a picture
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`for opposing counsel to illustrate how that fiber was
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`embedded in the samp le. That's discussed in Exhibit 1044,
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`pages 64 to 75 of the deposition transcript.
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`Corning did, in fact, mount the sample in a
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`suitable instrument. Now --
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`JUDGE KAMHOLZ: How did they mount it?
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`MR. MERKEL: What's that?
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`JUDGE KAMHOLZ: How did the y mount it?
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`MR. MERKEL: As described in the Kouzmina
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`declaration, the fiber sample was present on a glass slide.
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`The slide was mounted on a motorized indexer, and the
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`opposite end was coupled to the transducer, and the
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`indexer --
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`JUDGE KAMHOLZ: There seems to be some
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`issue here about how tightly the sample is gripped during
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`this test.
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`MR. MERKEL: Yes. That is an issue. The test,
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`as you see in the specification, does not mention anything
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`about applying a normal force. So, that would be, if you've
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`got the fiber embedded in the sample like this, the normal
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`force would be transverse to the axis of the fiber. There's
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`nothing mentioned in the description of the specification
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`about that. Corning, when they performed their test,
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`performed it without ap plying a normal force.
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`DSM now contends that you have to have a
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`normal force. How much? I don't know.
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`JUDGE KAMHOLZ: What do you mean you
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`didn't apply a normal force? You have to hold it.
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`MR. MERKEL: Well, the sample actually cures
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`around the fiber. So, it's embedded in there. It took a force
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`to pull that fiber out. It didn't just fall out. All right?
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`There was an actual negative slope that was measured.
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`JUDGE KAMHOLZ: So, you did not impose any
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`squeezing?
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`MR. MERKEL: Correct. There w as just the
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`normal force that exists from the contraction of the fiber
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`sample about the end of the glass fiber. That exists as a
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`result of the curing process. So, that is what you might refer
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`to as an intrinsic normal force. That is actually described i n
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`the specification of the '189 patent, throughout.
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`Now, DSM, when they performed their test, they
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`actually applied a clamping force, so if their sample is like
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`this, a clamping force. How much force? Nobody knows.
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`Dr. Taylor didn't know. All he can say was it's an adequate
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`force. What's an adequate force? He doesn't know.
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`The only one who might know is DSM's internal
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`scientist, Dr. Cao. She actually performed the work. Or
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`someone under her supervision. And all we know is that in
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`implementing this adequate normal force, you have to use a
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`screwdriver, if you will, to tighten the clamp. And it has to
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`be, according to DSM, an adequate force, yet Dr. Taylor
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`testified that she was tightening the clamp firmly. That
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`appears in Dr. Taylor's declaration.
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`Now, the specification of the '189 patent
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`explicitly says that if you increase the normal force, you will
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`increase the friction. Dr. Ju testifies, if you increase the
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`normal force, you increase the friction that's measured.
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`The only one who seems t o think differently is
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`Dr. Taylor, and now DSM. I don't think they can escape the
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`statement that appears in the '189 specification.
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`JUDGE KAMHOLZ: And this argument is
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`relevant to claims, what, 1, 5, 9 and 13?
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`MR. MERKEL: Actually it's relevant to a ll of the
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`claims that include this --
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`JUDGE KAMHOLZ: I mean your focus on
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`DSM's -- DSM's testing, which indicated a slope of 26?
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`MR. MERKEL: Right. So, DSM has only
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`challenged the claims that have the 10, so this claim here
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`has the 40 grams per milli meter requirements in it, and their
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`own testing was within that range. So, Claim 1 has the 20
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`grams and those are the ones they're challenging here.
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`Now, I want to focus on one other one of
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`Dr. Taylor's criticisms, and he raised this in his declaration
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`and in his deposition. So, in his declaration, he asserted that
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`Corning did not use a clean fiber, and that is, in fact, false.
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`Ms. Kouzmina stated that in her declaration, Exhibit 1015,
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`paragraph 34, that they used a clean fiber.
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`Dr. Taylor also argued that Corning did not
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`properly center the fiber in the 250 -micron coating. Well,
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`he admitted that the patent is silent on that issue. So, if we
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`go back to the specification, there's no requirement about
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`centering the fiber in the 250 -micron coating, but Corning
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`actually did that. And that's described.
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`It's actually illustrated in Dr. Ju's declaration,
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`where it shows how the fiber, after it was stripped, was
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`suspended on two glass slides, and the coating was placed on
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`one of the glass slides, the strip ped portion of the fiber
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`placed back down into that coating formulation, and then, as
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`Mr. Goldman referred to earlier, a bird bar or a drawdown
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`box was used to spread the, in this case, a roughly
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`360-micron film over it that cured down to the 260 that was
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`measured.
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`Dr. Taylor also criticized saying that there was no
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`linear region. He said during his deposition that this linear
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`region had to be substantial. Nowhere does that appear in
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`the specification. What did he define substantial as? Oh,
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`two to three millimeters.
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`He also asserted that this negative linear region
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`had to be smooth. I don't see that anywhere in the fiber
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`pull-out friction testing description.
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`In contrast, Dr. Ju, who has performed pull -out
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`friction testing before, testified that C orning's test procedure
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`is consistent with this description in the '189 specification,
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`and he testified that Corning's results are reliable and
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`accurate. There is no evidence of cohesive failure and that
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`the fiber was properly cleaned. This appears in Ex hibit
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`1035, paragraphs 33 and 34.
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`We've already discussed his independent analysis
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`of Corning's data. DSM has made the argument here that
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`because its own testing shows that the same formulation can
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`generate results outside the scope of the claim, wherea s
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`Corning's is inside the scope of the claim limitation, that it
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`negates the inherency. And I urge you that that is a false
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`understanding.
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`If you perform two different tests, particularly
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`when the '189 specification indicates that if you apply this
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`additional level of force, it's not unexpected, you will get
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`different results with those two very different tests.
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`JUDGE KAMHOLZ: Where does it state that?
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`MR. MERKEL: In the '189 specification?
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`JUDGE KAMHOLZ: Yes.
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`MR. MERKEL: Bear with me one moment.
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`JUDGE KAMHOLZ: If it's addressed in your
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`brief, you can just give me the page.
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`MR. MERKEL: It's actually at column 13, line
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`17 to 20.
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`So, the fact that you get different test results in
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`DSM's hands does not negate the fact that Corning's test
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`results meet the limitation for this single formulation.
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`The last issue that I want to address now is with
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`respect to Shustack Examples X and XI. If you look at
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`exemplary Claim 14 here, element (f) recites a modulus of
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`elasticity of greater than 25 megapascal. So, the only
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`argument that DSM has is that this is not an inherent feature
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`because Shustack X and XI describe a generic oligomer, if
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`you will, in the description of Examples X and XI.
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`Corning, in replicating Examples X and XI, did
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`look at a second document. They looked at Exhibit 1018,
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`page 7, example 7, where -- and this also, by the way, is a
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`Borden-owned patent, just like the Shustack reference. So,
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`two references owned by the same company. And in that
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`example 7, it con tains a description of the oligomer Ebecryl
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`284. That is uncannily similar to the description that
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`appears in Shustack Example X. And that is an aliphatic
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`polyethylene urethane diacrylate with a 12 percent one to six
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`hexane diol diacrylate.
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`Shustack Example X recites an aliphatic urethane
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`acrylate comprising a polyester backbone, used as a mixture
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`containing 12 percent hexane diol acrylate. That's uncannily
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`similar. And for that reason, Corning selected that specific
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`Ebecryl 284 oligomer in replicating Shustack Example X.
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`Shustack Example XI uses the exact same
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`language, just without the diluent, the 12 hexane diacrylate.
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`Thus Corning's use of the Ebecryl 284 without the diluent
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`was also a suitable choice.
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`DSM is going to argue, and has argued in their
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`papers, that there was a large genus of possible oligomers
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`that could have been selected, but when you will boil it all
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`down, you need to rely on the Exhibit 1018, which specifies
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`the specific oligomer, and t he fact that Dr. Bowman, DSM's
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`own expert, on cross examination, agreed that Ebecryl 284 is
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`an appropriate selection that appears in Exhibit 1070 at page
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`433.
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`JUDGE KAMHOLZ: Did Dr. Bowman state that
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`one of ordinary skill in the art would have chosen it , or
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`would have considered it, or have found it obvious?
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`MR. MERKEL: When asked whether or not he
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`disagreed that -- or whether or not that would be an
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`inappropriate selection, he said it was not an inappropriate
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`selection.
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`JUDGE KAMHOLZ: Well, it's o ne thing to say
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`that you can combine, or can use, it's another to say that you
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`would have, or that it would have occurred to you.
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`MR. MERKEL: So, what he was saying, was
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`given the teaching in the Shustack reference, that that was
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`an appropriate selectio n. If you look at the reference 1018,
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`it specifically uses that highly similar language, and points
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`you right to that oligomer.
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`JUDGE OBERMANN: So, he was comparing the
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`two and he said, yes, this is one of those?
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`MR. MERKEL: It's an appropriate one, yes.
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`JUDGE OBERMANN: Okay.
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`JUDGE KAMHOLZ: As far as the length change
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`limitation.
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`MR. MERKEL: Yes?
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`JUDGE KAMHOLZ: Is there anything you would
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`like to add to that?
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`MR. MERKEL: Thank you for bringing that up,
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`Your Honor. Earlier today, you d id ask about the change in
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`length, and I mentioned that there was an exhibit of record.
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`I didn't give you the exhibit number at that time. The
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`exhibit that I want you to take a look at is Exhibit 2050.
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`In that document, it gives all the raw data that
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`was generated by the microscopist, listing out the X and Y
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`points that were used with the Pythagorean theorem to
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`calculate the overall distance. And I want you to pay note
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`when you compare the distance measurements at the
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`25-degree Celsius and the 100 -degree Celsius measurements
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`that they are very close to one another. The deviations
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`between those measurements are on the order of two pixels
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`up to four. And that falls within the error range that Dr. Ju
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`had calculated of two to five percent.
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`JUDGE KAMHOLZ: I'm sorry. What falls
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`within that error range? Which numbers?
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`MR. MERKEL: So, when you look at that Exhibit
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`2050.
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`JUDGE KAMHOLZ: I am.
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`MR. MERKEL: You'll see, you've got it in front
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`of you? Do you have it there in front of you, Your Honor?
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`JUDGE KAMHOLZ: Yes, which example would
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`you like me to look at?
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`MR. MERKEL: So, let's just take the one up on
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`top. So, if you look at the distance measurements.
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`JUDGE KAMHOLZ: This is Shustack I.
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`MR. MERKEL: That's correct, on the '712. And
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`the 25-degree C measurement, the distance the microscopist
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`was 1924 and the second trial he ran was 1921. At the
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`100-degree measurement, it was 1943, in the second trial,
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`1941.
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`You'll see similar precision with those two
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`measurements throughout all of th e measurements that were
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`made. That's consistent with Dr. Ju's testimony as to the
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`error rate.
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`JUDGE OBERMANN: Is this same evidence an d
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`argument in the 45 case?
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`MR. MERKEL: Yes.
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`the amount of change bet ween those two temperatures is so
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`small that I'm not convinced that there's enough explanation
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`of the technique involved in measuring them that we can
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`have confidence that those are accurate. Accurate to the
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`degree necessary to prove that the claim is unp atentable.
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`MR. MERKEL: Well, I guess there are two
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`points that I want to refer you to. Again, I mentioned the
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`precision between these two measurements. These were two
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`separate trials. Two separate measurements.
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`JUDGE KAMHOLZ: So, he's just measuri ng --
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`MR. MERKEL: From one particle to another
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`particle, and in the second trial, from a different particle to a
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`different particle.
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`JUDGE KAMHOLZ: I understand.
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`JUDGE OBERMANN: Not the same particle?
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`MR. MERKEL: My understanding is that at the
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`two different trials, they were different.
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`JUDGE OBERMANN: Okay.
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`MR. MERKEL: Well, actually, let me clarify.
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`Different measurement attempts for the same particle.
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`Thank you for clarifying.
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`JUDGE BISK: I thought when he was measuring
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`he was just eyeballing.
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`MR. MERKEL: Well, he wasn't just eyeballing.
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`JUDGE BISK: Okay.
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`MR. MERKEL: He was using the image.
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`JUDGE BISK: Yeah.
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`MR. MERKEL: If you take a look at the sample
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`images.
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`JUDGE BISK: Yeah, I did.
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`MR. MERKEL: You'll see the ta lc particles.
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`Now, up on the computer scene, he was selecting from one
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`talc particle on the edge of the screen and measuring to
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`another talc particle on the other edge of the screen.
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`JUDGE BISK: Okay.
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`JUDGE KAMHOLZ: How do we know that is
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`what he did?
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`MR. MERKEL: That's what Ms. Kouzmina
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`testified. We've got an indication that Ms. -- from
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`Ms. Kouzmina's testimony, as I indicated earlier this
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`morning, that he was using the talc particles as the reference
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`points, and we've also got an indication of what the size of
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`the screen was in terms of the pixel count. And it's pretty
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`close to the --
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`JUDGE BISK: But did he have like a selection?
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`Did he put his mouse here and his mouse here and there was
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`some kind of indication of what the distance was, or did he
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`just look? That's what I'm not clear on.
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`JUDGE KAMHOLZ: My concern is that none of
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`that is explained in the evidence of record.
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`MR. MERKEL: So --
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`JUDGE KAMHOLZ: I actually don't want to
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`know the answer, because it's not in the record.
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`JUDGE BISK: Or point us to where in the record
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`they explain that.
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`MR. MERKEL: I believe Ms. Kouzmina testified
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`as to the X and Y points representing those two points on the
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`screen.
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`screen.
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`JUDGE BISK: Right. Right.
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`MR. MERKEL: Those are pixel locations on the
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`JUDGE BISK: Yeah, I got that.
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`MR. MERKEL: Okay.
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`JUDGE KAMHOLZ: And who is she to know?
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`MR. MERKEL: She is the one who was
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`supervising the testing that was performed by the
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`microscopist.
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`JUDGE KAMHOLZ: Is there any particular
`
`reason why we don't have the evidence of the microscopist
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`in the record?
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`MR. MERKEL: Because Ms. Kouzmina
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`supervised the testing, the voluminous testing on all these
`
`issues. So, when you --
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`JUDGE KAMHOLZ: Her deposition doesn't seem
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`to suggest that in th is case, does it?
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`MR. MERKEL: Actually, it does. She did
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`discuss with Mr. Sanford the procedure that was involved.
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`JUDGE KAMHOLZ: "I don't know exactly how
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`the precise paths were chosen, it was Mr. Sanford's
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`discretion, and tracked just visually fol lowing the selected
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`spot on the microscope and then regarding its position."
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`That's from page 124, lines 9 through 12 of her deposition.
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`That doesn't sound like she was intimately aware of what he
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`was doing.
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`MR. MERKEL: Well, she understood the
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`process. If you look elsewhere in the transcript, you will see
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`that --
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`JUDGE KAMHOLZ: Where?
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`MR. MERKEL: -- before -- I'm going to need to
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`look at the transcript, but let me summarize this and I will
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`get the cite to you, okay? Ms. Kouzmina indicated that
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`before Mr. Sanford embarked on any of his testing, the two
`
`of them discussed the procedure that he would be using, and
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`Ms. Kouzmina said that he should proceed. She didn't sit
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`over his shoulder and say, choose this one, choose that one,
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`that was left to t he microscopist, who has 29 years of skill
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`as a microscopist.
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`JUDGE KAMHOLZ: Is some sort of protocol for
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`this test in the record? Written protocol?
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`MR. MERKEL: No, there is no written protocol.
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`JUDGE OBERMANN: The evidence that you just
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`referred to that is different from what my colleague just
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`quoted from her deposition transcript, do they discuss how
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`this thing is going to be measured? Whether it's going to be
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`eyeballed or whether it's going to be, you know, do they
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`describe that in the record?
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`MR. MERKEL: The -- let me just clarify your
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`question. Are you referring to how the microscopist is
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`selecting the talc particle?
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`JUDGE BISK: How they're getting this distance.
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`Because from what he read, just now, it sounds like he just
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`looks at it.
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`she was using the talc -- that Mr. Sanford, the microscopist,
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`was using the talc particles. So, selecting a talc particle on
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`one edge represents your X and Y point for point one, and
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`then on the opposite edg e of the screen, represent your X
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`and Y point for part two.
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`JUDGE OBERMANN: How do they get the
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`number, the measurement?
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`MR. MERKEL: That, I testified, or argued before
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`that consistent with Ms. Kouzmina's testimony in her
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`deposition, she indicated th at once you have those X and Y
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`points, using the Pythagorean theorem, you can calculate the
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`hypotenuse.
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`The final point that I want to make besides the
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`precision here is that Dr. Ju, the expert, has experience using
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`this exact same type of test. He says it's a traditional
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`approach for measuring change of length, and it has an
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`acceptable error rate, two to five percent.
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`These values that are recited in the claims,
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`Corning's test results are far within those values, such that
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`even if you had maximum erro r rates, you would still be
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`within the claim range.
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`JUDGE KAMHOLZ: Even if you had the error
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`rates Dr. Taylor indicated?
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`MR. MERKEL: No, if you had the exceptionally
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`high error rates that Dr. Taylor estimated, by his blown -up
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`pixilation, that would t ake it outside of the claim range. But
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`that is not an acceptable error rate, as Dr. Ju testified.
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`Thank you.
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`MS. ISRAEL: While we're getting set up, can I
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`ask a housekeeping question, which is I'm just trying to keep
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`track of our time.
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`JUDGE BISK: Sure. On my timer, you have
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`almost -- you have about 56 minutes left.
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`MS. ISRAEL: How much?
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`JUDGE BISK: Fifty-six minutes left.
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`MS. ISRAEL: Fifty-six?
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`JUDGE BISK: Yeah, so you're almost right on
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`track with what you sent us.
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`MS. ISRAEL: Okay. So, as Mr. Merkel
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`indicated, that this, the '189 patent is related to the '666
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`patent, it's the parent patent of the one that we discussed
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`earlier, and there's a number of issues that are overlapping
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`with this proceeding as with the proceeding in
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`IPR2013-00045.
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`What I would like to discuss are some of the
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`representative issues that are presented. We show, we have
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`the Claims 1, 5, 9, 13, those are inner coating only
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`limitations, and the issues that relate specifically to those,
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`including a fiber pull -out friction and whether it's less than
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`20 or not, and the delamination limitation that we discussed
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`earlier.
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`With respect to Claims 1 and 9, for example, for
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`Szum Example 5(b). And then the other claims deal with
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`both inner and outer coati ng limitations, and I now
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`understand that Corning is not relying on outer coating of
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`Shustack example 9, so I won't a
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