trials@uspto.gov
`571-272-7822
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`IPR2016-00553, Paper No. 24
`June 20, 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 IPR2016-00533
`Patent 8,511,605 B2
`____________
`
`Held: May 4, 2017
`____________
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`
`
`(Reporter via telephone due to scheduling issues)
`____________
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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 Thursday, May
`4, 2017, commencing at 3:48 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`*Hearing recorded telephonically due to scheduling issue and
`transcribed to the best of our transcriber's ability
`
`
`571-272-7822
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`IPR2016-00553, Paper No. 24
`June 20, 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 IPR2016-00533
`Patent 8,511,605 B2
`____________
`
`Held: May 4, 2017
`____________
`
`
`
`(Reporter via telephone due to scheduling issues)
`____________
`
`
`
`Before HYUN J. JUNG, SCOTT A. DANIELS, and GEORGE R.
`HOSKINS, Administrative Patent Judges.
`
`
`
` The above-entitled matter came on for hearing on Thursday, May
`4, 2017, commencing at 3:48 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`*Hearing recorded telephonically due to scheduling issue and
`transcribed to the best of our transcriber's ability
`
`
`
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`MICHAEL J. VALAIK, ESQ.
`Bartlit Back Herman Palenchar & Scott LLP
`Courthouse Place, 54 West Hubbard Street
`Chicago, Illinois 60654
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`Case IPR2016-00533
`Patent 8,511,605 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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`ANISH DESAI, ESQ.
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W., Suite 900
`Washington, D.C. 20005-3314
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`P R O C E E D I N G S
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`JUDGE JUNG: This is the oral hearing for Case
`IPR2016-00533 between Petitioner, General Electric Company,
`and Patent Owner, United Technologies Corporation. The patent
`number is 8,511,605.
`Would counsel for Petitioner, followed by counsel for
`Patent Owner, please state your names for the record.
`MR. DESAI: Anish Desai for Petitioner, General
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`Electric.
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`JUDGE JUNG: Thank you.
`MR. VALAIK: Mike Valaik, Bartlit Beck, for United
`Technologies Corporation.
`JUDGE JUNG: Thank you.
`According to the hearing order, each party has 30
`minutes of total time to present its position on all three cases --
`I'm sorry, in this case. Petitioner has the burden to show
`unpatentability. Petitioner will proceed first, followed by the
`Patent Owner. Petitioner may reserve rebuttal time but may use it
`only to rebut Patent Owner's arguments.
`There are pending objections in this case as well to
`Petitioner's slides, I believe slides 11 and 12.
`Is that correct, Patent Owner?
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`MR. VALAIK: Yes, Your Honor.
`JUDGE JUNG: Thank you.
`And with that, Mr. Desai, how much time would you
`like to reserve for rebuttal?
`MR. DESAI: I would like ten minutes.
`JUDGE JUNG: You may proceed.
`MR. DESAI: Okay.
`Let me just quickly get into the claims here, the claimed
`patent, the '605 patent. This IPR challenged claims 1 through 6
`and 12 to 16, and everything has been disclaimed except 15 and
`16, and these two claims are basically identical, and I don't think
`for purposes of this IPR there's any dispute that they are basically
`the same. The difference is that one claim is the low pressure
`turbine pressure ratio is greater than five; the other one is it's
`about five. For purposes of this IPR, there is no distinction.
`So there's a claim construction dispute regarding how
`the claimed low pressure turbine pressure ratio should be
`measured. The issue is do the claims require measurement in
`such a way to exclude the pressure drop that across a component
`called the turbine exhaust case or turbine exit case, also called
`TVC-TEC for short, and our position is that the claims are broad
`and do not specify whether or not the TEC is included or
`excluded, and I will explain that, but if Your Honors agree with
`Petitioner about the broadest reasonable interpretation, Wendus,
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`the prior art, GE-1005, anticipates because it discloses a pressure
`ratio across a low pressure turbine including the pressure drop
`across the TEC, if you incorporate that, of 14.4, which is far
`higher than five.
`If Your Honors adopt the narrower construction, which
`we disagree with, Wendus still anticipates because it discloses a
`pressure ratio across the LPT, excluding the TEC, of 12.72, and
`it's undisputed also, separately, that the pressure drop across the
`TEC, which is a standard component, is minimal, okay, such that
`there is no way one of ordinary skill in the art would view
`Wendus as disclosing a pressure ratio across the LPT, minus the
`TEC, of less than five. It's just not possible, okay?
`So here I'm on slide 3. This is the Wendus NASA
`report, Figure 4, which is a figure of the engine, showing
`temperatures and pressures at different points in the engine, and
`it's GE-1005.017, and this is at max climb, which is called the
`condition 0.85 Mach, 35,000 feet, okay? This report was
`authored by Patent Owner, and it was never provided to the
`Patent Office during prosecution of the '605 patent.
`Figure 4 shows a two-spool gear turbofan engine with a
`six-stage LPT. Again, the temperatures and pressures at various
`points are shown in the engine. The six-stage LPT is shown here,
`along with the turbine exhaust case, which is at the very end of
`the engine, that square box right at the end of the engine, okay?
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`Now, here's the claim construction issue, briefly framed,
`but the issue is, you know, does the low pressure turbine pressure
`ratio in this patent, okay, exclude the pressure drop across the
`turbine exhaust case? The Patent Owner says yes, it does; it
`excludes it, absolutely. We say it doesn't matter. The patent
`doesn't specify whether you include it or not, okay?
`And let's go directly to the patent. I mean, this is the
`best place for it, right, the patent?
`JUDGE DANIELS: Mr. Desai, so I'm looking at your
`slide 3. So the issue is Wendus has got this sort of ambiguous
`arrow, pointing somewhat ambiguously, I guess, to an area
`outside of the exhaust box the TEC is in?
`MR. DESAI: No, I mean, Dr. Abhari, who is the only
`expert who has looked at this figure, has explained, I mean, a
`person of ordinary skill in the art, reading this figure, recognizes
`that that arrow is pointing at the outlet of the TEC. That is -- that
`is exactly what the flow is in this figure, and that's the only
`testimony from anyone in this case about how a person of
`ordinary skill in the art would understand this figure, okay? So
`that arrow is showing the pressure at the outlet of the TEC. I
`absolutely agree with that.
`And the issue is, well, do we need to measure it before
`the TEC or after the TEC, right, for the claim? So let me go to
`slide 5, which is GE-1001, column 4, lines 24 to 27, okay? This
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`is the only part of the spec that matters for this issue, because it
`talks about how to measure low pressure turbine pressures. It
`says it's measured "prior to inlet of low pressure turbine" -- there
`is no dispute there, we all agree, Wendus discloses the inlet
`pressure to the low pressure turbine -- and "at the outlet of the
`low pressure turbine prior to the exhaust nozzle," okay? So all
`it's telling you is that you've just got to measure it at the outlet
`prior to the exhaust nozzle.
`Okay. Now, if we go to slide 6, this is Patent Owner's
`own admission, okay, about -- about the '605 patent, okay? At
`the top -- and this is the response at page 25 -- and it says, again,
`"...the measurement of the low pressure turbine pressure ratio
`must be taken prior to the exhaust nozzle." Okay, that's exactly
`what the patent said. We agree.
`But here's the next part, page 26, it says, "The '605
`patent does illustrate and describe an exhaust nozzle, which
`immediately follows its turbine exhaust case." Okay, this, of
`course, means that the turbine exhaust case is prior to the exhaust
`nozzle. It's clear (inaudible). It is clear that the measurement is
`prior to the exhaust nozzle and that the turbine exhaust case is
`prior to the exhaust nozzle.
`Well, let's take a look at Figure 1A of the patent, the
`'605 patent. This is slide 7. You have the LPT inlet pressure
`shown there, which is at a position at the inlet of the LPT, and
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`then you have the LPT outlet pressure prior to the exhaust nozzle,
`and I've highlighted the TEC -- it's 33 in Figure 1A -- and I've
`blocked it, right, and put a little T-E-C in there, and then 43 is the
`nozzle.
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`You can see that, according to their own definition, it's
`prior to the exhaust nozzle. That's how you would measure it.
`That's encompassed within the scope of their claim, and that's
`exactly what Wendus discloses. It is exactly what Wendus
`discloses. It shows you the LPT inlet pressure, 77.8, okay, and
`then it shows you the outlet pressure prior to the exhaust nozzle,
`right after the TEC, is 5.4, okay?
`JUDGE DANIELS: Counsel, is that really a fair
`reading of that portion of the specification? I mean, if we -- let's
`go back to your slide where -- let's see, it's on slide 5. What it
`says is, "...pressure ratio is pressure measured prior to inlet of low
`pressure turbine 18," and isn't -- if pressure ratio is measured
`prior to the exhaust nozzle, isn't -- isn't an arrow -- isn't -- if I go
`to your slide 7, I can move your arrow, your vertical arrow on top
`over to prior to the TEC. Isn't that a fair reading of that passage
`as well, in that we'd be taking that open pressure at the outlet of
`the turbine, which is a very definitive portion of this -- of this
`engine, and even though it's before the TEC, it would also be
`before the nozzle, right?
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`MR. DESAI: I agree. That is a fair reading. And the
`point being that the claim encompasses both measurements. It
`just broadly defines the outlet as being prior to the exhaust
`nozzle, and, therefore, we're not saying that it excludes the
`measurement where you would do it before the TEC. We're just
`saying it doesn't require that you exclude the TEC. The broadest
`reasonable interpretation is that the outlet measurement doesn't
`matter, whether you include the TEC or not. It covers both.
`And here's why this is important, and I have a slide
`that's directed at it, the point being, the reason why it doesn't
`matter is because a person of ordinary skill in the art, including
`the people who wrote this patent, realized that the TEC -- the
`pressure drop across the TEC is a minimal amount. I mean,
`Patent Owner's own patent, the 1984 patent, this is GE-1036,
`okay, it's about a turbine exhaust case design, and this is a
`standard component in a turbine engine, okay? And it says here
`that the -- you know, the turbine exhaust case is designed to have
`a minimal pressure drop, okay?
`What it is is (inaudible), okay, that are used to
`(inaudible), and the point being is you don't want it to disrupt the
`pressure, and that's -- and their own patent tells you, 30 years ago,
`that the pressure drop across the TEC is scientifically minimal, so
`the point being that's why their patent, on the '605 patent, they
`don't care whether you measure it before or after the TEC. It
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`doesn't matter. It's not -- it's a trivial distinction to a person of
`ordinary skill in the art, okay, and there is no testimony from
`anyone about -- from -- I'm sorry -- I'm sorry, that's --
`JUDGE DANIELS: That's okay. Looking here at
`Figure 1A, so on your slide, where do you think the outlet of the
`low pressure turbine 18 is located?
`MR. DESAI: I think that's -- I think that that's a
`question you could debate. I mean, the point is the turbine
`exhaust case is part of the turbine. I mean, you have -- it's a
`standard component of the turbine, okay? So you could say that
`the outlet of the turbine is after the TEC or you could say it's after
`the last blade row of the -- of the rotating blade row. So a low
`pressure turbine is basically stages, each stage being a set of
`stationary vanes, followed by a set of rotating blades, okay?
`So you could say that the outlet of the low pressure
`turbine is after the last blade row. You could also say it's after the
`TEC, because the TEC is an integral part of the turbine. It's
`creating the flow. It's needed as a necessary part. Every one of
`these engines has one.
`So, again, it goes back to my point that this patent is
`ambiguous about whether it includes the pressure drop across the
`TEC for sure. You will not have Patent Owner get up here and
`argue that there is a clear disclosure in this patent about we will
`exclude the pressure drop across the TEC from the calculation of
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`low pressure ratio, because the only discussion of that pressure
`ratio is on slide 5, okay? There is no --
`JUDGE HOSKINS And how far to the right, in the
`Figure 1A, do you think you could go and still be at the outlet of
`low pressure turbine 18?
`MR. DESAI: Well, I think the issue is you would
`probably want to measure at a point reasonably close, but this --
`these are not issues that are dealt with in the '605 patent. I mean,
`it doesn't -- it doesn't specify, right? I mean, it just tells you that
`you want to measure the low pressure turbine pressure ratio prior
`to the exhaust nozzle, so -- and Patent Owner --
`JUDGE HOSKINS: And it also says "at the outlet of
`the low pressure turbine," which is what I'm trying to get at.
`MR. DESAI: And I -- and I agree that the "outlet of the
`low pressure turbine" is ambiguous, because it can refer to the
`last blade row; it can also over to after the TEC. And, therefore,
`the broadest reasonable interpretation encompasses measuring it
`here, before the TEC, or after the TEC. It doesn't matter.
`JUDGE HOSKINS: Okay, thank you.
`MR. DESAI: Now, there's another argument by Patent
`Owner that this arrow in Wendus at page 8, slide 8, is -- and I
`think they said that the arrow located the pressure value at an
`unknown section of the schematic structure. The arrow in
`Wendus points to an area that is, at best, ill-defined. This is pure
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`attorney argument. There is no testimony from anyone from
`Patent Owner, a person of ordinary skill in the art, understanding
`it this way, zero.
`They did not submit any expert testimony or any
`testimony from anyone examining how Wendus would be
`understood from the level of ordinary skill in the art. So
`everything you see on the right on slide 9, it's complete and pure
`attorney argument, and it should be entitled to no weight.
`So the final point I'll make is this issue of, well, if we
`exclude the TEC or we don't exclude the TEC, okay, and our
`point is, again, it doesn't matter, because Wendus discloses it no
`matter what, okay? Now, Patent Owner, in its response -- slide
`10 -- says that "Petitioner cannot demonstrate anticipation
`because Wendus discloses no such pressure." And then again on
`page 5, it says, "Wendus therefore discloses no low pressure
`turbine pressure ratio at all, much less a ratio that reads on claims
`15 and 16 of the '605 Patent," okay?
`Obviously, we disagree. Figure 14 shows you the
`pressure before and the pressure after, including the TEC, okay?
`But that's not all Wendus says. This is not a report written by
`GE. This is not a report written by some third party. This is a
`report that was written by Patent Owner, okay, and these
`statements are categorically false, okay? We know they're false
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`because in Wendus, on slide 11, there's a section about the low
`pressure turbine, okay?
`And it tells you that the six-stage design has a
`expansion ratio of 12.72:1, and at the bottom, it tells you that the
`LPT is followed by a turbine exit case with guide vanes I was
`mentioning. This tells you that this is the pressure ratio excluding
`the TEC, okay? They know it was in the report, and yet they
`wrote in their response that (inaudible), okay? And the fact of the
`matter is, it does.
`Now, Patent Owner, of course, has moved to strike this
`evidence, which is the Wendus report itself, right? I mean, the
`point being, oh, we didn't rely on this particular expansion ratio,
`but we relied on the one that included the TEC. I agree. No
`dispute. In our petition, we did not rely on that pressure ratio, but
`we also had no reason to, because we were applying the broadest
`reasonable interpretation, okay?
`Patent Owner has since offered a narrower construction,
`and our position is, if you're going to adopt that narrower
`construction, well, Wendus anticipates anyway. And, again, this
`goes back to the Nintendo case, IPRs that I mentioned in my
`previous argument, which is IPR2014-0164, page 24, and this is
`the exact issue.
`They were trying to exclude a declaration of
`Respondent, because the Patent Owner offered a new
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`construction, a different narrow construction, and the Board said,
`well, that's unreasonable. How can you -- how can you expect
`the Petitioner to predict that the Patent Owner is going to take a
`narrow interpretation when the spec itself is quite broad? I mean,
`it's ambiguous as to whether it's here or here. I mean, there is
`absolutely no disclosure in the '605 patent of -- that it needs to be
`measured at this point. It's just not there.
`So the bottom line is, Wendus discloses the pressure
`across the low pressure turbine. Whether or not you include or
`exclude the TEC, it doesn't matter. It's way above five. It's not
`even close, okay? And just to be clear, everybody in the art
`knows that expansion ratio and pressure ratio, with respect to the
`LPT, are the same thing, because the LPT -- the air is expanding
`through the LPT, and that's why they sometimes refer to it as an
`expansion ratio.
`Even Patent Owner uses these terms synonymously.
`GE-1034 is just an example of a disclosure by Patent Owner that
`uses the words "low pressure turbine pressure ratio" and
`expansion ratio is (inaudible), okay? So we have no -- there is no
`doubt that Patent Owner knew that Wendus discloses a low
`pressure turbine pressure ratio of greater than five, regardless of
`whether you include or exclude the TEC.
`Unless Your Honors have any other questions, I will
`save the rest of my time for rebuttal.
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`JUDGE JUNG: I have no questions.
`Before you proceed, Ms. Gould has informed me that
`we need to take a break.
`(A brief recess was taken.)
`JUDGE JUNG: Whenever you're ready.
`MR. VALAIK: Thank you, Judge.
`This petition is very straightforward. This is
`anticipation. Wendus needs to expressly disclose the limitations
`in claims 15 and 16. We've urged the Board, analytically here,
`we have to do claim construction, and if we do claim construction
`first and adopt what we submit is the right claim construction,
`this is a very simple, straightforward case that Patent Owner
`should prevail.
`Counsel is wrong that -- I wrote this down -- he said the
`issue here is "whether the claims should be construed to include
`or exclude the turbine exit case or the turbine exhaust case."
`That's not the issue. If we look at claim construction, obviously
`claims 15 and 16 have the limitation that the low pressure turbine
`pressure ratio is greater than about five in claim 15 and greater
`than five in claim 16, and the spec is quite clear on this. The spec
`states, "The low pressure turbine pressure ratio is pressure
`measured prior to inlet of low pressure turbine as related to
`pressure at the outlet of the low pressure turbine prior to exhaust
`nozzle."
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`So let's take this in just a few bites, if we can. First, it
`says nothing whatsoever about a turbine exit case or a turbine
`exhaust case. We're just doing claim construction now. Of
`course, Petitioner injects the TEC into the discussion because,
`when you look at Wendus, it becomes a real issue, but the '605
`patent, when defining where you measure low pressure turbine
`pressure ratio, it says nothing whatsoever about that.
`Secondly, it's quite clear that the low pressure turbine
`pressure ratio is measured at the outlet of the low pressure
`turbine. Petitioner's argument is, essentially, "prior to exhaust
`nozzle" subsumes at the outlet. I'm standing at the podium. That
`is prior to, if I am going to move forward, the judge in this case.
`I'll still standing at the outlet. If you want to take a measurement
`of where I'm standing right now, it would be at the podium. It's
`not complicated.
`Turning now to slide 19 -- and Petitioner said a number
`of times, the spec's just ambiguous on this point, and I want to
`specifically address this now in the context of what is the low
`pressure turbine and what is the turbine exhaust case, because the
`'605 patent very clearly talks about these as two separate
`components.
`Figure 1B -- again, slide 19 -- there's the low pressure
`turbine, number 18, there's the turbine exhaust case. It's clear.
`It's important to note here, too, that the low pressure turbine is
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`rotating. It expands the high pressure combustor products and
`drives the LPC and the fan via a gearbox. The turbine exhaust
`case is static. It ducts cool air to the engine compartment. These
`are two totally separate things.
`And, indeed, in the '605 patent itself, column 5, line 5, it
`states, "The engine's static structure generally includes a fan case,
`an intermediate case, a high pressure compressor case, a
`combustor case, a high pressure turbine case, a thrust case, and a
`low pressure turbine case, and a turbine exhaust case." These are
`separate components.
`And so going back to just simply claim construction, if
`we're going to look at where you take the measurement for the
`low pressure turbine pressure ratio, it's clear it's at the outlet, and
`that if Petitioner wants to inject into this discussion a turbine
`exhaust case, the '605 patent makes clear that's a separate
`component.
`But it's important here, on claim construction, to talk
`about a little bit of the history. Here's Petitioner's specific
`construction offered in the petition. Petitioner didn't talk about
`this today, what their proposed construction is. It states: "A
`person of ordinary skill in the art would understand the term 'low
`pressure turbine pressure ratio' to mean the ratio of the pressure at
`the inlet of the low pressure turbine section to the pressure at the
`outlet of the low pressure turbine section."
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`Of course, what we've just looked at in the specification
`of the '605 patent says nothing about a low pressure turbine
`section, but that's the -- that's the construction that Petitioner
`advocates, because as we'll see, we will get to Wendus. What
`does Petitioner then say in reply? Petitioner criticizes Patent
`Owner here.
`Footnote 4, page 7, and this is on slide 21, Patent Owner
`also devotes argument distinguishing between a low pressure
`turbine and a low pressure turbine section. This argument is
`irrelevant because it does not address the issue of how one of
`ordinary skill in the art would measure the LPT pressure ratio
`based on the description of this (inaudible) patent. So the specific
`claim construction that they advocated for "low pressure turbine
`pressure ratio" is irrelevant, because a person of ordinary skill,
`they would know how to do this. They would know how to take
`these measurements. They would figure it out.
`This is essentially a slight of hand, that the person of
`ordinary skill would know how this is done. This sounds -- this is
`an obviousness argument. This isn't an anticipation argument,
`which is here is the express disclosure in Wendus Figure 4.
`Turning to Wendus Figure 4 -- and what we've done
`here is just simply blown it up for the Court's benefit -- and these
`are Petitioner's annotations. It's interesting, they drew here,
`there's the LPT inlet, and then they have the LPT outlet, and
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`we've gone ahead and put a blue annotation in there because that's
`at the outlet of the low pressure turbine. It doesn't take an expert
`to determine that's the outlet of the low pressure turbine. It's
`quite clear. Actually, here, in Figure 4 for Wendus, you'll see
`that's Petitioner's red "TEC," but Wendus in Figure 5 and 6
`actually have the TEC in there.
`So Petitioner framing the very issue before the Board
`today as, "Well, we have to determine whether the claims should
`be construed to include or exclude the turbine exhaust case or
`turbine exit," case is wrong. It's quite clear that the claims should
`be construed, that the low pressure turbine pressure ratio needs to
`be measured at the outlet, and that's shown in blue.
`Now, I want to address a question that the Judge asked
`Mr. Desai about that black arrow there in Wendus, and the Judge
`asked whether -- is that at the outlet of the TEC? And counsel's
`answer was, "That's what Dr. Abhari said." Well, again, you
`don't need an expert to look at Wendus Figure 4, look at the black
`arrow, and it's at the outlet of the TEC. It's ambiguous at best.
`It's certainly downstream of the TEC. In fact, Petitioner drew
`another arrow in red saying that's the LPT outlet, pointing
`specifically to the outlet of the TEC.
`And then, of course, the Petitioner's argument, they also
`showed what they construed as Patent Owner's argument where
`we talked about it needs to be prior to the nozzle, and if you'll
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`look at pages 25 really through 28 of our Patent Owner response,
`what we were doing there was specifically responding to the
`Judge's question that that black arrow is ambiguous.
`This wasn't part of our claim construction argument
`whatsoever. Our claim construction argument is very, very clear,
`that the measurement needs to be taken at the outlet. What we
`were attacking, as an additional argument, was when you look at
`Wendus Figure 4, it's not clear at all whether that black arrow is
`prior to the nozzle or not.
`And so before getting to this 12.72 expansion ratio, I'll
`say it one more time. It's our position that if the Board does claim
`construction, if the Board appropriately construes the low
`pressure turbine pressure ratio needs to be measured at the outlet,
`where the blue annotation is, this is anticipation, and Wendus
`Figure 4 simply shows no measurement or calculation at the
`outlet. And just to buttonhole this point, we asked Dr. Abhari
`whether he did any other calculation or analysis, and he said no.
`This is at UTC-2019, 439 of the transcript, line 19, through 440,
`line 3.
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`Petitioner's belated 12.72 expansion ratio argument, this
`is now -- we're back to our motion to strike, we're back to
`Illumina, and that the petition needs to point out with particularity
`the arguments and the evidence. According to counsel, Petitioner
`did make this argument because they couldn't anticipate that we
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`would adopt a claim construction that says the low pressure
`turbine pressure ratio should be measured at the outlet of the low
`pressure turbine even though that's exactly what the specification
`says.
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`They then say in their reply, at pages 11 and 12 -- and
`I'm on slide 23 -- that Wendus -- and I'm on the fourth line --
`"Wendus also includes the below excerpt regarding the low
`pressure turbine, which was cited in Dr. Abhari's original
`declaration," it has two cites, "and in the petition," and offers an
`additional two cites.
`I'm now on slide 24, and on the left you have the two
`cites from Dr. Abhari, and on the right you have the two cites
`from the petition. It's clear to the Board that what Petitioners did
`here would cite the first part of the facts. In the upper left-hand
`cite, Dr. Abhari, paragraph 58, the highlighted yellow states:
`"The low pressure turbine (LPT) is a very high speed six-stage
`design..." You have similar cites for the other three.
`If we go back to the other slide, what they did was cite
`the very first part of the sentence, and then in the petition, counsel
`deleted "with a design expansion ratio of 12.72:1 and a specific
`work requirement of 251 Btu/lbm." This has created undue
`prejudice on our part.
`As I said at the outset, this is a straightforward case,
`anticipation, claim construction. Wendus Figure 4 does not
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`include any measurement at the outlet of the low pressure turbine.
`Undue prejudice because we have, at this point, an inability to
`effectively respond to this argument, and, quite frankly, there is a
`lack of any evidence whatsoever for this late disclosure.
`Petitioner is asking the Board here to allow an
`anticipation argument. They're saying that 12.72 expressly
`discloses the limitations in claims 15 and 16 that they knew
`about, chose not to include in their petition, and now specifically
`make it in reply. Somebody deleted the second part of this
`sentence four times, and now we have an anticipation argument,
`again, that according to them is an express disclosure, where we
`don't have an expert to respond.
`We didn't need an expert to respond to the first part of
`their argument based on Wendus Figure 4, because if the Board
`does claim construction and adopts "at the outlet of the low
`pressure turbine pressure ratio," there's no disclosure, but it would
`have been nice to have an expert for this part of the argument,
`particularly now when Petitioner says that, indeed, "expansion
`ratio" is synonymous with the "low pressure turbine pressure
`ratio."
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`I just want to briefly respond in case the Board does
`consider the 12.72 expansion ratio argument. Number one, the
`'605 patent says nothing about an expansion ratio. The patent that
`Petitioner relied on was a different patent. And when you look --
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`it's now clear what our position is with respect to claim
`construction of "low pressure turbine pressure ratio" and there is
`no room for what is an expansion ratio and whether or not that's
`even synonymous.
`But it's interesting, in conclusion, to consider that --
`they say it's also clear, based on Wendus
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