trials@uspto.gov
`571-272-7822
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`IPR2016-00526, Paper No. 38
`June 21, 2017
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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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`GENERAL ELECTRIC CO.,
`Petitioner,
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`v.
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`UNITED TECHNOLOGIES CORP.,
`Patent Owner.
`____________
`
`Case IPR2016-00526
`Patent 7,966,807 B2
`____________
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`Held: May 8, 2017
`____________
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`Before HYUN J. JUNG, SCOTT A. DANIELS, and GEORGE R.
`HOSKINS, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Monday, May
`8, 2017, commencing at 10:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`571-272-7822
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`IPR2016-00526, Paper No. 38
`June 21, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GENERAL ELECTRIC CO.,
`Petitioner,
`
`v.
`
`UNITED TECHNOLOGIES CORP.,
`Patent Owner.
`____________
`
`Case IPR2016-00526
`Patent 7,966,807 B2
`____________
`
`Held: May 8, 2017
`____________
`
`
`
`
`
`
`Before HYUN J. JUNG, SCOTT A. DANIELS, and GEORGE R.
`HOSKINS, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Monday, May
`8, 2017, commencing at 10:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`
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`ANISH DESAI, ESQUIRE
`BRIAN E. FERGUSON, ESQUIRE
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W.
`Suite 900
`Washington, D.C. 20005-3314
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`Case IPR2016-00526
`Patent 7,966,807 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF PATENT OWNER:
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`M. ANDREW HOLTMAN, Ph.D.
`JEFFREY C. TOTTEN, ESQUIRE
`Finnegan, Henderson, Farabow, Garrett & Dunner,
`901 New York Avenue, N.W.
`Washington, D.C. 20001-4413
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`Case IPR2016-00526
`Patent 7,966,807 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE JUNG: Okay. This is the oral hearing for case
`IPR2016-00526 between Petitioner General Electric Company
`and Patent Owner United Technologies Corporation in which
`Petitioner challenges the claims of U.S. Patent Number
`7,966,807.
`Starting with counsel for Petitioner followed by counsel
`for Patent Owner, please introduce yourself for the record.
`MR. DESAI: Anish Desai for Petitioner General
`Electric Company.
`JUDGE JUNG: Welcome back.
`MR. HOLTMAN: Andy Holtman from the law firm of
`Finnegan Henderson for United Technologies Corporation.
`JUDGE JUNG: Welcome.
`All right. Each party has about 30 minutes of total time
`to present its position in all three cases. Petitioner, you may
`proceed when you're ready.
`MR. DESAI: Good morning, Your Honors. I will
`reserve 10 minutes for rebuttal.
`As you mentioned, this is an IPR challenging all claims
`of U.S. Patent 7,966,807. Claims 1 to 3 were disclaimed by
`Patent Owner and so what remains at issue is 4 through 20.
`The '807 patent was filed in 2007, issued in 2011 and
`this is a patent about the use of a heat pipe to cool static structures
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`in a gas turbine engine. Static is another way of saying
`non-rotating. Examples of static components are stationary vanes
`and struts.
`Patent Owner has tried to cast this as a patent about the
`design of a heat pipe. This is categorically not a patent about the
`design of a heat pipe. Instead, it is a patent about the application
`of a conventional heat pipe and the application is not in any way
`new.
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`I will show you that using a heat pipe to cool static
`components in every section of the gas turbine engine has been
`known to those of skill in the art long before the '807 patent was
`filed. None of the prior art that forms the core of this Petition
`was cited to the Patent Office during the prosecution of the '807
`patent.
`
`So I'll start with slide 2 of Petitioner's demonstratives
`and what I've shown here are some excerpts from the '807 patent.
`It's column 2, lines 30 to 43, column 2, lines 56 to 57, column 3,
`lines 13 to 15 and Table 1. Okay?
`And this is effectively --
`JUDGE JUNG: Mr. Desai, I need to interrupt for a
`moment. Is your microphone actually on? My panel members
`are having a little trouble --
`MR. DESAI: Can you hear me, is that better?
`JUDGE DANIELS: I can hear you pretty well. It just
`sounds like the microphone wasn't on.
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`MR. DESAI: It looks like it's on. I see a green light
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`now.
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`JUDGE JUNG: Sorry about that. Go ahead.
`MR. DESAI: Okay. So on slide 2 here we have what
`are effectively -- these are the parts of the patent that are about
`the heat pipe design. Okay? And all it says in the patent is the
`heat pipe has a vaporization section, it has a condenser section
`and it has a working medium. Okay?
`So when it comes to the design of these sections, the
`patent also says the shape and size and configuration can vary as
`needed. And then, finally, with respect to the working medium, it
`says here's a table of working media, you can pick whichever one
`suits your operating conditions. Okay?
`Everything that is written about the design of a heat
`pipe in the '807 patent can be found in a college textbook on heat
`pipes.
`
`Okay. So this is slide 3 and this is a textbook on heat
`pipes and thermodynamics and this is GE-1011 and this is a 1995
`textbook. And just to show you on the left is a figure of a
`conventional heat pipe. It has a condenser section, an evaporator
`section and a working medium. That's the basics of a heat pipe.
`And on the right you have a table of working medium
`that can be used and the temperature ranges -- this is effectively
`what's been copied into this '807 patent. The '807 patent, the
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`bottom line is not about the design of a heat pipe. It describes
`nothing more than a conventional heat pipe.
`And to be clear, the terminology used in the patent,
`vapor cooling assembly, which is in the spec and in claims, that's
`nothing more than a heat pipe. That's just the long-winded way
`of saying heat pipe in the '807 patent. Okay.
`So what is the '807 patent about? We know it's not
`about heat pipe design. It's about the application of a heat pipe,
`and this is on slide 4. And I have Figure 2 of the '807 patent in
`column 2, lines 56 to 63. And what you have here is the heat pipe
`is placed in a vane in the gas turbine engine and it is exposed --
`the vane is exposed to hot gas flow and the heat pipe is used to
`transfer thermal energy from the vane to the bypass flow. So
`effectively here the bypass flow is the cooler. It's used as the heat
`sink. Okay? And that's what's shown here in slide 4.
`Moving on to slide 5, this is Claim 4 of the independent
`-- one of the independent claims at issue here and that's just
`exactly what's being claimed, which is a non-rotating component,
`a strut or a vane that extends into the turbine flowpath. A vapor
`cooling assembly and everything below that is just the basic
`components of a heat pipe. And then the last part is that the
`condenser section of the heat pipe is exposed to the bypass flow,
`so the bypass flow is the heat sink. Okay. That's Claim 4.
`So I'll walk through the prior art now that basically
`shows using a heat pipe to cool static components and the bypass
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`flow is the heat sink has been known for a very long time in the
`prior art.
`Okay. On slide 6 this is the McGarry reference, which
`is GE-1006, and this is a patent about the application of a heat
`pipe as well and here the static structure in which the heat pipe is
`contained are compressor vanes in a gas turbine engine and the
`bypass flow is used as the heat sink. Okay. So using the heat
`pipe to cool a compressor vane and using a bypass flow as a heat
`sink, known in the art for 40 years.
`Okay. So I'll move on. This is a 1980 patent. This is
`Young. It's GE-1005 and the specific embodiment here on slide 7
`is a heat pipe in a strut that is downstream of the last turbine stage
`and, again, the bypass flow is used as the heat sink.
`Moving on to 1994, this is a paper GE-1010 and this is
`a paper that discloses the specific concept of using a heat pipe in
`a turbine vane. Okay? And, again, at page 1 in the abstract it
`tells you that the vane is fitted with a heat pipe and the bypass air
`is chosen as the heat sink, and above is a figure from the patent
`showing the heat pipe fitted vane with the bypass stream being
`used as the heat sink.
`And GE-1010, this is a paper about the use of a heat
`pipe in a turbine vane in an aircraft gas turbine engine. And the
`last one here is GE-1009. This is a 1995 paper, also about heat
`pipe cooled turbine vanes. The difference between this and the
`1010 reference is this 1009 is for use in a land-based gas turbine
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`engine. Okay? But what you've seen here is the use of a heat
`pipe to cool a static structure in a vane or strut in every section of
`a gas turbine engine.
`So how is UTC --
`JUDGE DANIELS: I just wanted to look at in Figure 2
`shown on your slide 8. Is there an actual passage in that vane
`where that arrow is intended to --
`MR. DESAI: That arrow is intended to show where the
`heat pipe is. It's fitted into the vane. So the heat pipe is fitted
`inside of the vane and it's used to transfer the heat from the hot
`gas flow section to the bypass flow section. That would be the
`same on slide 8. It's exactly the same, except in slide 8 it just
`doesn't actually show you the interior of the heat pipe.
`JUDGE DANIELS: Okay. Thanks.
`MR. DESAI: Okay. So slide 10. This is how UTC has
`attempted to respond to this issue. They hired an expert, Dr.
`Faghri who is a world-renowned expert in heat pipes. Okay.
`And he signed a declaration in 2017 and what did he say in
`paragraph 17 of his declaration?
`The '807 patent is directed to a new and efficient
`method of cooling the non-rotating components, new. Focus on
`that word new. And then he says, the '807 patent employs a heat
`vapor cooling assembly, a heat pipe, to remove heat from a
`non-rotating turbine component and use the bypass duct as the
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`heat sink. Okay? In 2017 Dr. Faghri is saying this is new in a
`sworn declaration to the Patent Office.
`We'll move to slide 11. This is a paper that Dr. Faghri
`wrote in 1997. Okay. The title of the paper is about heat pipe
`turbine vane cooling. And what did he say? The concept of a
`heat pipe turbine vane is fairly well-known in the gas turbine
`community, and he referenced some papers here, including
`GE-1010, which says it again, using a heat pipe cooled turbine
`vane and putting -- using the bypass air as the heat sink.
`Okay. The bottom line is Dr. Faghri's testimony in this
`case and his declaration is just not credible in any way. He's
`completely contradicted a paper he wrote 10 years -- sorry, 20
`years earlier and there's no explanation for it from UTC.
`The other expert that UTC has presented in this case is
`Dr. Spakovsky and he was only able to offer his opinions about
`nonobviousness by not reviewing the papers that we submitted in
`this IPR that discuss using a heat pipe cooled turbine vane.
`There's no indication anywhere in his declaration that he
`reviewed GE-1009 and GE-1010, both of which unambiguously
`teach the use of a heat pipe cooled turbine vane.
`On cross examination I asked him if he was aware of
`any publications prior to the '807 patent that disclose a heat pipe
`cooled turbine vane that uses the bypass duct as a heat sink.
`Okay. This is at GE-1025, page 60, line 23, to page 61, line 10.
`And, of course, he said he hadn't seen any publications like that.
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`Okay. Of course, if you don't read the prior art at issue, it's a lot
`easier to offer an opinion that the subject matter is nonobvious.
`So let me switch gears a little bit and talk about the
`claim -- the main claim construction issue that we have in this
`case. This is on slide 12 and it has to do with the phrase gas
`turbine combustion flowpath which is in Claim 1, but Dependent
`Claims 15 and 16 are still at issue, and turbine flowpath which are
`the rest of the claims.
`In the Institution Decision these terms were construed to
`mean a section of the core flowpath that is downstream of the
`combustor. We accept that construction. That was one of the
`possibilities we proposed in our IPR.
`Patent Owner offers a narrower construction I'd say of
`turbine flowpath, a portion of a turbine where combustion gases
`flow. They have not distinguished between the two terms in their
`papers. I think they're treating them equally like we did, but this
`isn't really discussed in the Patent Owner Response, but in the
`Patent Owner Preliminary Response at page 17, they didn't seem
`to take issue with treating the terms equally.
`So the bottom line I think is that the '807 patent is
`invalid no matter which construction we use because, as I've said,
`using a heat pipe cooled vane is known in every section of the
`engine, so it doesn't really matter how you construe turbine
`flowpath. But as I'll explain, even under UTC's construction of
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`turbine flowpath, it encompasses a location in Young where the
`heat pipe is placed.
`JUDGE JUNG: Just to be clear, Mr. Desai, so if we
`accept a construction of turbine flowpath that’s closer to Patent
`Owner's, is your obviousness case based on McGarry then
`become not as good as the one based on Young?
`MR. DESAI: So the way it works is if you accept
`Patent Owner's construction, Young discloses a heat pipe in the
`turbine flowpath. So for that particular issue, it's not an
`obviousness case for Young. There's obviousness with respect to
`the details of a heat pipe which we said were kind of -- were
`well-established because Young doesn't exactly say the words
`evaporator section necessarily.
`But for McGarry the obviousness combination remains
`the same, which is our position being that it would be obvious to
`take the concept of using a heat pipe to cool a compressor vane
`and apply it to a turbine vane given the number of prior art
`references that are already disclosed in that concept. So I don't
`think -- to be honest with you, I don't think the construction really
`matters for McGarry because you have to do an obviousness
`argument anyway for downstream combustor. But for Young it
`matters because it's basically does Young explicitly disclose this
`or not, and under Patent Owner's construction we believe it still
`does and I can explain that now.
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`So let's see. So this is a first embodiment in the -- I'm
`on slide 14 of the '807 patent. It talks specifically about putting
`the heat pipe in the vane in the low pressure turbine section.
`Okay. And this is the embodiment that you'll see Patent Owner
`discuss and latch onto and say, look, it has to be in the turbine
`section, the heat pipe. But that's not the only embodiment in the
`patent, right? So there's an alternative embodiment discussed in
`the patent and claimed.
`Slide 15 shows you Claims 5 and 6 and Dependent
`Claim 6, which depends on 4. It says, the non-rotating
`component comprises a support strut. So it's not a vane. It's a
`support strut. And also shown on slide 15 is Figure 1, which is
`the only figure in the patent about the engine, and the only
`support strut shown in this figure is downstream of the last
`turbine stage, and I've highlighted that in red on slide 15.
`And UTC's expert, Dr. Spakovsky, agreed that the only
`support strut extending into the core flowpath in the '807 patent is
`the one I've highlighted here on Figure 1, which is downstream of
`the last turbine stage. So even under the claims, even under --
`what I'll show is even under UTC's construction of turbine
`flowpath, it encompasses putting a heat pipe in a support strut
`downstream of the last turbine stage. Okay?
`And on slide 16, what I have is UTC-2012 which is an
`exhibit that UTC used to help define the word or explain what the
`word turbine flowpath means. Now, what you'll see here on slide
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`16 is two figures showing different views of the same thing.
`Okay. This is the aft portion of a turbine frame. Okay? And
`what this is this is a turbine exit case, which we talked a little bit
`about last week, and number 22 in Figure 2 is labeled turbine
`flowpath.
`Okay. Everything you see on slide 16 is downstream of
`the last blade row in a turbine. This is the aft portion of the
`turbine. And what you can see here is a turbine flowpath. The
`term encompasses the portion of the turbine that is downstream of
`the last blade row, okay, including this exit case, which 48 are the
`-- these are struts, okay, that are aerodynamically shaped. So
`they're both struts and vanes. I think they're used -- in some
`instances struts are support -- used for support, but they also
`extend into a flowpath, so they'll be aerodynamically shaped.
`So the point being is that even under UTC's
`construction of turbine flowpath, it encompasses a support strut
`downstream of the last stage of the turbine. Okay? And that's
`exactly what is shown in Young, right? Young discloses that
`vanes are formed in heat pipes that extend across a jet pipe
`downstream of the last stage of the turbine. That's exactly the
`same thing as what we saw on slide 16. You have these struts
`that are aerodynamically shaped as vanes that are downstream of
`the last stage.
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`So Young under Patent Owner's construction discloses a
`heat pipe fitted vane/strut that is in the turbine flowpath and also
`discharging the -- or using the bypass flow as the heat sink.
`JUDGE JUNG: So, Mr. Desai, you would agree that
`Young does not teach a vane in the actual turbine section.
`MR. DESAI: Agreed, yes. Young does not disclose
`using an actual turbine vane as a heat pipe, that's correct.
`JUDGE JUNG: Thank you.
`MR. DESAI: So there's -- also, again, there's the other
`references that we've pointed to that also describe specifically that
`use of a heat pipe cooled turbine vane and those references
`provide the disclosure of doing it as well as the motivation for
`doing it.
`So on slide 18 we have GE-1010 on the bottom right
`and the portion I've highlighted tells you here that what they
`found was that using a heat pipe cooled turbine vane enabled
`them to increase thrust by 7.2 percent. Also, this is also
`referenced in Young that using a heat pipe to cool a static
`structure and discharging the heat into the bypass flow can be
`used to increase thrust. Okay. So this is all motivation to use a
`heat pipe cooled turbine vane.
`JUDGE JUNG: Let me just be clear, though, Patent
`Owner does kind of object to the way that you've presented
`Exhibit 1010 in your arguments in the Petition. So would you
`agree that Exhibit 1010 is evidence of background knowledge?
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`MR. DESAI: I would agree that it is evidence of what
`is well-known in the art, which is that the concept of using a heat
`pipe cooled turbine vane and the impacts of doing it, that is what
`exactly --
`JUDGE JUNG: Would you agree that Exhibit 1010
`also includes other things that might indicate to one of ordinary
`skill in the art that using a vane inside the turbine section may not
`be the most optimal path?
`MR. DESAI: I --
`JUDGE JUNG: Which is about -- let me see, in 1010
`there's a discussion about weight, I believe the G forces as well.
`So those are considerations. And it seems to talk about an
`advanced jet engine design that's not really aimed at commercial
`aviation. There's also I think a line or two that says it's not yet
`accepted by the commercial aviation community because there’s
`not that much known about inserting a vane into the turbine
`section.
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`MR. DESAI: So I agree that GE-1010 describes the
`advantages and disadvantages of potentially using a heat pipe
`cooled turbine vane, but the important part to recognize is that the
`'807 patent does not solve any of the disadvantages and claims
`every possible use of the heat pipe cooled turbine being whether
`it's in a land-based gas turbine engine, a military engine, a
`commercial engine. It doesn't matter. There is no limitation in
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`this patent on the use of a heat pipe turbine vane. And the issue
`about adding --
`JUDGE JUNG: I'll ask a little bit further about that.
`Why would a person of ordinary skill in the art trying to design,
`you know, let's say an embodiment in the '807 patent, why would
`they look at a land-based power-generating turbine? That's more
`designed for torque as opposed to torque and thrust. Or an
`advanced jet engine, a military jet engine. What are the reasons
`for looking at those two references?
`MR. DESAI: Well, of course, the '807 patent
`encompasses using a heat pipe cooled turbine vane in a gas
`turbine engine. It is not limited to a particular application.
`JUDGE JUNG: There is a recitation of for the bypass
`flowpath, right? So that seems to indicate some limitation. It's
`not every gas turbine known, but some -- maybe a subset.
`MR. DESAI: Well, all the gas turbine engines use the
`conventional way of cooling turbine vanes. A lot of them is to
`divert compressor bleed air which can detract from performance.
`So these references on using heat pipe cooled turbine vanes
`emphasize that this is an alternative cooling mechanism that
`avoids the performance losses from diverting compressor bleed
`air, which is what you would do in a land-based gas turbine
`engine as well as in an aircraft gas turbine engine.
`The GE-1010 reference, although it is about a military
`engine, is about an engine that has a bypass flow duct and using
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`the heat pipe cooled turbine vane to cool a vane and to use the
`bypass flow as the heat sink and thereby increasing the thrust.
`JUDGE JUNG: Mr. Desai, you're in your rebuttal time.
`Do you wish to go on?
`MR. DESAI: A few more minutes, yes.
`And to point to the -- in Patent Owner's Response at
`pages 42 to 47 is where they discuss what is our apparent -- their
`argument that our use of GE-1009 and 1010 are improper, and the
`case that they rely on entirely for that argument is the Arendi v.
`Apple case, 832 F.3d 1355. And our view is Patent Owner
`misstates Arendi and it does not apply here.
`The question that Arendi was clear was whether the
`Board erred in using commonsense to supply a missing limitation
`in the prior art. I mean, they said this at 1361. The single
`question at issue here is whether the Board misused
`commonsense to conclude it would have been obvious to supply a
`missing limitation in the prior art reference.
`We are not using commonsense to argue that a heat pipe
`turbine vane is obvious. We are using actually prior art
`references that disclose exactly that concept of using a heat pipe
`cooled turbine vane. The Court in Arendi explained that
`commonsense cannot be used as a wholesale substitute for
`reasoned analysis and evidentiary support and we have the
`reasoned analysis and the evidentiary support to show that there
`are benefits to using a heat pipe cooled turbine vane.
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`Although there are disadvantages as well, but the patent,
`as I'll probably discuss a little more in rebuttal, the patent, the
`'807 patent, doesn't disclose any solutions to the potential
`disadvantages. So it's claiming a heat pipe cooled turbine vane
`with all of its advantages and all of its disadvantages as well.
`Thank you.
`JUDGE JUNG: Thank you.
`MR. HOLTMAN: Good morning, Your Honors. Can
`you hear me clearly?
`JUDGE HOSKINS: Yes.
`MR. HOLTMAN: All right. Heat pipes have been
`around for decades, 40 years we heard, probably actually a lot
`longer than you would think -- it struck me as I was listening to
`the presentation this morning that the Petitioner believes that
`Patent Owner is claiming to have invented a heat pipe. Well,
`that's simply not the case.
`The important determination here is not whether they
`exist, but where the structures of those heat pipes are located
`within a gas turbine engine. It's basically a location, location,
`location kind of argument that you think about, real estate.
`If you could turn to Patent Owner's demonstrative slide
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`11.
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`Location is relevant here because Claims 4 and 8 recite
`a turbine flowpath, and it's very simply that we believe that
`turbine flowpath has to be defined within the turbine section and
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`we heard a little bit of confusion about what we understand our
`construction to be, but it has to be within the turbine section.
`Petitioner is arguing that it has to be some or can be some other
`location downstream of the turbine. And why do they need that
`construction?
`JUDGE JUNG: Well, Mr. Holtman, before you go on,
`do you now argue that the turbine flowpath, the construction of
`turbine flowpath is no longer linked to -- what's the phrase in
`Claim 1 -- gas turbine combustion flowpath? This was kind of
`indicated in the Patent Owner's Preliminary Response.
`MR. HOLTMAN: Yeah, Your Honor, we've always
`felt that they are different terms and have different meanings. For
`the purposes of that Preliminary Response, we said they can be
`viewed as the same, but even there we interpreted turbine
`flowpath when we provided our construction and that
`construction has not changed between the Preliminary Response
`and the Response.
`JUDGE JUNG: Okay. Thank you.
`MR. HOLTMAN: So our position is still that it is the
`portion of the turbine within where the combustion gases flow.
`All right. So that is our construction. Petitioner's
`construction is that it's also some portion downstream and they
`need this. Because despite all of the language we've heard about
`how obvious these claims are and how well-known heat pipes
`have been in the prior art, they haven't pointed to a single
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`reference that shows that structure embedded within the turbine
`itself.
`
`And if we look at their only reference for ground 1,
`which is Young --
`JUDGE JUNG: Mr. Holtman, just to clarify, you're
`discussing only Young and McGarry as showing no vane in the
`turbine section --
`MR. HOLTMAN: That's correct.
`JUDGE JUNG: -- at this point.
`MR. HOLTMAN: That's correct, Your Honor.
`JUDGE JUNG: And you're not looking at Exhibit 1010
`or 1009 yet.
`MR. HOLTMAN: I will address the secondary
`references in a little bit.
`JUDGE JUNG: Okay.
`MR. HOLTMAN: So ground 1 is only based on a
`single obviousness ground and that is with the use of one
`document, Young. Young deliberately places his heat pipe
`downstream of the turbine section and it's indicated as heat pipe
`25 on the far right of that demonstrative.
`The same is true with its ground 2 single reference and
`that's McGarry. There McGarry chose to place the location of its
`heat pipe upstream. Of course, we know this is now in the cool
`part of the engine in the high compressor section.
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`The secondary references also do not teach how to place
`a heat pipe vane or a vane in a heat pipe and I'm going to talk
`about that in a little bit, but let me finish this section first. I can
`tell it's important.
`So the intrinsic record -- if we could turn to Patent
`Owner demonstrative 10. The intrinsic record, claims, the
`specification all support our construction as the broadest
`reasonable construction here.
`The patent treats the engine in sections. It treats the
`flowpaths in sections. And if you look at demonstrative slide 12
`you can see some of that language talking about the different
`embodiments of the gas flowpath, combustion flowpath, turbine
`flowpath, for example. Our construction is actually the only
`construction that gives meaning to these terms separately. It
`doesn't conflate them.
`So there are several reasons we heard this morning and
`we've seen in the Reply as to why the Petitioner has a problem
`with our construction and I'm going to present three of those, the
`fourth one we heard a little bit about, but I think it's probably not
`worth spending the time on.
`But the first is the interchangeability argument and that
`is essentially the combustion flowpath and the turbine flowpath
`are basically the same thing, and the usage that we saw on our
`slide 12 suggest that they're the same thing. Well, the
`specification uses these terms differently very clearly. It also
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`Case IPR2016-00526
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`uses them disjunctively. It puts an “or” between them. It's
`effectively saying this or that and these are the two different
`embodiments that it uses as examples or calls typically for a gas
`flowpath.
`On top of that it claims them separately. So we know
`that, according to the Patent Owner, the '807 patent claims in
`Claim 1 a combustion flowpath. A different embodiment is
`claimed in 4 and 8 and that's what we're talking about is the
`turbine flowpath.
`So we have disclaimed Claims 1 to 3 and we don't think
`there's any reason to construe combustion flowpath at this point
`because the arguments don't depend from the construction of that.
`Yes.
`JUDGE JUNG: Would I understand your disclaimer as
`kind of an implicit argument that the combustion flowpath might
`be a little bit broader than turbine flowpath?
`MR. HOLTMAN: They are certainly different and they
`do -- and they can overlap, that's correct, and that's what this
`language would suggest here on slide 14. Our view is that turbine
`flowpath is narrower. It's confined to the turbine itself.
`JUDGE JUNG: Thank you.
`MR. HOLTMAN: The next argument they make to
`suggest our construction is wrong is a linguistic argument, and
`that's one they make about the difference between turbine and
`combustor. And there they say if our construction that turbine
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`flowpath is a portion of the turbine where the combustion gases
`flow, combustion flowpath must be a portion of the combustor
`where the combustion gases flow, and that's just -- you know, it's
`not supported by the record. It's not how one of skill in the art
`would use those terms and it's certainly -- there's no reason, when
`you look at the '807 specification, to believe that there needs to be
`that parallel linguistic structure that they're proposing. It's a bit of
`a red herring.
`More importantly, I think the argument that we heard
`this morning is, I would say the most dramatic example of why
`Petitioner has taken the wrong approach in
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