UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ONE WORLD TECHNOLOGIES, INC.
`d/b/a TECHTRONIC INDUSTRIES POWER EQUIPMENT,
`Petitioner,
`
`v.
`
`THE CHAMBERLAIN GROUP, INC.,
`Patent Owner.
`_____________
`
`Case IPR2017-00073
`Patent 7,196,611 B2
`____________
`
`Record of Oral Hearing
`Held: January 18, 2018
`____________
`
`
`
`
`Before JONI Y. CHANG, JUSTIN T. ARBES, and JOHN F. HORVATH,
`Administrative Patent Judges.
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ONE WORLD TECHNOLOGIES, INC.
`d/b/a TECHTRONIC INDUSTRIES POWER EQUIPMENT,
`Petitioner,
`
`v.
`
`THE CHAMBERLAIN GROUP, INC.,
`Patent Owner.
`_____________
`
`Case IPR2017-00073
`Patent 7,196,611 B2
`____________
`
`Record of Oral Hearing
`Held: January 18, 2018
`____________
`
`
`
`
`Before JONI Y. CHANG, JUSTIN T. ARBES, and JOHN F. HORVATH,
`Administrative Patent Judges.
`
`
`
`
`Case IPR2017-00073
`Patent 7,196,611 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DION M. BREGMAN, ESQUIRE
`ALEANDER B. STEIN, ESQUIRE
`Morgan Lewis
`1400 Page Mill Road
`Palo Alto, CA 94304
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JOSHUA A. GRISWOLD, ESQUIRE
`KARL RENNER, ESQUIRE
`DAN SMITH, ESQUIRE
`Fish & Richardson, P.C.
`1717 Main Street
`Suite 5000
`Dallas, TX 75201
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, January
`18. 2018, at 1:00 p.m., at the U.S. Patent and Trademark Office, Madison
`Building East, 600 Dulany Street, Alexandria, Virginia, before Walter
`Murphy, Notary Public.
`
`
`
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`Case IPR2017-00073
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`P R O C E E D I N G S
`- - - - -
`JUDGE ARBES: Good afternoon, everyone. Please be seated. This
`is the first of two oral hearings today regarding Patent 7,196,611. First we
`will hear Case IPR2017-00073. Can counsel please state your names for the
`record?
`MR. GREGMAN: Sure. Good morning, Your Honor. Dion
`Bregman representing TTI or Techtronic Industries.
`MR. GRISWOLD: Good afternoon, Your Honors. I’m Joshua
`Griswold and I represent the Patent Owner, Chamberlain. I have with me
`Dan Smith and Karl Renner.
`JUDGE ARBES: Thank you. Per the Trial Hearing Order in this
`case, each party will have 40 minutes of time to present arguments.
`Petitioner will present its case first regarding the challenged claims and may
`argue the Motion to Exclude. Petitioner may also reserve time for rebuttal.
`Then Patent Owner will then respond to Petitioner’s presentation and
`Petitioner may use any remaining time to respond.
`A few reminders before we begin to ensure that the transcript is clear
`and because we have one judge participating remotely. Please only speak at
`the podium and refer to your demonstratives by slide number. Also, we
`have received a list of objections to Petitioner’s demonstrative exhibits
`pertaining to the allegedly improper material in Petitioner’s Reply that
`Patent Owner has already filed objections to. The objections to the
`demonstratives today will be overruled. The parties are reminded that
`demonstrative exhibits are merely visual aids to assist a party’s presentation
`at the hearing. They’re not briefs and they’re not evidence. Lastly, if either
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`party believes that the other party is presenting an improper argument, we
`ask you to please raise that in your own presentation rather than interrupting
`the other side.
`Any questions before we begin today? Counsel for Petitioner, you
`may proceed, and would you like to reserve time for rebuttal?
`MR. BREGMAN: Seven minutes, Your Honor. We don’t have a
`clock here but I see some lights. I assume those lights, are those related to
`how much time I’ve got or anything?
`JUDGE ARBES: We don’t have those running but I can give you a
`warning.
`MR. BREGMAN: Okay, that’ll be great. Just maybe five minutes or
`ten minutes. Right. So why don’t we dig in? So the first IPR we’ll be
`talking about today is 2017-00073. Both of these IPR’s relate to the 611
`patent. The first set that we’re going to discuss now relates to apparatus
`claims related to diagnostics, and the second set we’re going to discuss a
`little bit later today relates to learning mode, and those are method claims.
`If we look at the 611 patent, it’s a very, very simple technology. In
`essence, it’s a garage door opener with blinking lights of a wall unit to show
`faults. The Patent Owner however disclosed the same technology years
`before in one of their own references.
`So if we look at slide 2, here is a road map of what we’re going to
`discuss today. We’re going to start with very briefly go over the 611 patent,
`the instituted grounds and some claim construction, and then we’re going to
`jump into the substantive arguments as well as an argument that Patent
`Owner has raised regarding whether there is a single anticipatory reference.
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`So if we jump to slide No. 4, this is the front of the patent, the 611
`patent. As you can see the Patent Owner is the Chamberlain Group and this
`patent was filed back in April of 2003. Skipping to slide 6, this patent is
`directed -- or sorry, this set of claims is directed to sending signals to a wall-
`control unit to display faults. You can see here is the garage door and you
`can see we’ve circled in red the wall-control unit that has some LED’s on it
`that display faults.
`Jumping to slide 8, these are the instituted grounds of unpatentability.
`We have a very extremely strong case here. There are two grounds. The
`first ground is anticipation based on the Crimmins reference or Crimmins,
`and the second ground is unpatentability -- obviousness over the
`combination of Crimmins and Weik.
`For the first ground, there is only one independent claim in this entire
`set and as we have shown in our briefs, that claim is clearly anticipated. The
`Patent Owner only challenges two elements from those claims that are easily
`dismissed and we’ll go into those in a few minutes time.
`If we jump to slide 9 you can see the entire claim here. Really the only
`dispute or the main dispute really is this last element, the apparatus for
`communicating the identities of faults to a remote input/output unit. This
`limitation clearly discloses no structure as appreciated by Your Honors who
`construed this limitation as a means plus function term.
`Turning to claim construction, as Your Honors instructed us in the
`Institution decision, the parties were encouraged to address -- this is slide 11
`-- were encouraged to address the interpretation of all limitations potentially
`subject to means plus function treatment. Unbelievably however, when we
`asked Patent Owner’s expert are you aware that this phrase, we’re talking
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`about the last element of the claim, is part of a longer limitation that was
`construed by the Board, Patent Owner’s expert said he wasn’t even aware
`that the Board had construed the claims when forming his opinions.
`Jumping to slide 12, and we’ve highlighted here the main term or the
`main limitation in dispute, the apparatus for communicating. As Your
`Honors I’m sure appreciate, this was a 112 paragraph 6 means plus function
`term and Your Honors found the corresponding structure to be a controller
`208, a path from the controller to the wall-control 124 and the LED 137.
`I’d like to jump from here to slide 52. I apologize we’re going to
`jump around a little bit. But if you look at slide 52, the Patent Owner and its
`expert actually agreed that the structure was disclosed by Crimmins. If we
`look at the next slide 53, I asked Parent Owner’s expert do you agree that
`Crimmins has the structure of a controller, a path from the controller to a
`wall-control, and an LED, and he says he didn’t dispute it. So the structure
`is admitted and all that’s left with this element is really the function.
`If we move to slide 54, at the very bottom -- and I know it’s a busy
`slide -- but you’ll see at the bottom right hand corner you’ll see in blue the
`function of the means plus function construction and you’ll see it’s
`communicating the identities of faults in operation of the barrier movement
`operator to the remote input/output unit and displaying the identified faults
`of the remote’s input/output unit. So it has to send at least two identities of
`faults to the remote input/output unit, that’s the wall unit, and then it has to
`display those faults.
`Patent Owner essentially has already admitted this, so in their Patent
`Owner response this is what they said. They said this on the top of the slide.
`Crimmins teaches that the LED, and this is the LED in the Crimmins’s wall
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`unit, exhibits one behavior -- LED on -- in response to a first set of alleged
`faults and another behavior -- LED flashing -- in response to a second set of
`faults. That’s dispositive on this issue.
`JUDGE ARBES: Counsel.
`MR. BREGMAN: Yes.
`JUDGE ARBES: I see the statement you’re pointing to, but if those
`truly are sets of faults and not individual faults, how is that communicating
`the identities of faults if I have one behavior for a set of faults and another
`behavior for another set of faults, how is that communicating the identity of
`the fault?
`MR. BREGMAN: It only has to have two identities. So you can pick
`any one out of the first set, any one out of the second set, and that’s one
`identity over one fault is LED on, and another identity of the fault is LED
`flashing.
`JUDGE ARBES: But I don’t know which one in the set it is.
`MR. BREGMAN: But for purposes of anticipation you don’t need
`more than two. It only needs two. We can ignore the rest. The rest are
`irrelevant for the purposes of anticipation. We only need one from the first
`set turning the LED on and one from the second set flashing the LED and it
`meets the limitation of the claim.
`JUDGE ARBES: But if I communicate data that says this fault is in
`this set of three things, if I communicate just that data how am I
`communicating an identity of a fault?
`MR. BREGMAN: It’s exactly the same way as the 611 patent. The
`611 patent will basically just send some current down a wire and it will flash
`an LED a certain number or times. That’s exactly what happens here. They
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`didn’t say every single unique fault has to have a unique identifier, it just
`says sending identities of two or more of faults. So it just has to send two,
`that’s all that it has to do and it does that.
`JUDGE ARBES: Doesn’t the word identities imply some sort of
`individuality that I’m looking at a specific fault?
`MR. BREGMAN: No, and I think that’s Patent Owner’s argument
`which I can show you on the next slide. They’re basically saying, if you
`look here, that the user has to be able to discern the identity of the fault. It’s
`not possible to discern the identity of the fault. It’s not possible for a user to
`identify. So what they’re trying to do here is read into the claim that every
`single fault that is sent down the line to the LED has to be unique.
`If we look at the language from the claim on the next slide, there’s
`nothing about the use in the claim. There’s nothing about it being sent to a
`user or a user reading anything. In fact the user doesn’t even have to be
`present. All that has to happen is the identities of faults, two identities have
`to be sent to the wall-control unit and that’s exactly what the prior art
`reference does.
`JUDGE ARBES: And they also have to be displayed. The other
`function is displaying the identified faults at the remote unit.
`MR. BREGMAN: Absolutely right, and they are displayed. One is
`turning the LED on, another one is flashing the LED, and in fact there’s
`even more disclosure in Crimmins which we’ll get to in a minute which it
`even flashes the LED differently depending on which fault it is.
`JUDGE ARBES: Let’s assume Patent Owner is correct for the
`moment, that there are two sets and there are only two -- there are only two
`different behaviors and two sets. If I’m displaying it in the first behavior,
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`I’m flashing it for instance, how is that displaying the identified faults? All
`I’m displaying is the fact that it’s within that set of faults.
`MR. BREGMAN: And you can look at it two ways. You can either
`look at it all the claim requires is two identities and two faults, ignore the
`rest of the other faults. I just need one that turns an LED on and one that
`flashes the LED, or you could read it like they’re trying to read it a little bit
`to say identities of faults, you’ve got one bucket of faults, right, that’s got
`one identity, and I’ve got another bucket of faults and that’s another identity.
`Those are two buckets of identities. You can read it either way. I don’t
`think it makes any difference to the claim language. They never proposed a
`claim construction for this term. They said it’s plain and ordinary meaning.
`But they’re trying to read this discernment into the claim about a user having
`to discern something. If that’s what the claim is supposed to say it should
`have said communicating unique identities of faults so that a user can
`appreciate or discern one fault from another. That’s just not what the claim
`says. The broadest reasonable interpretation has to be you’re just sending
`two identities of two faults to the remote unit and those two faults are
`displayed.
`JUDGE ARBES: Okay. Perhaps we can move on to the first set of
`faults and whether those are two different behaviors or one behavior.
`MR. BREGMAN: Sure. So the first set of faults, there are a number
`of faults there which are -- I don’t have my petition in front of me -- but
`that’s got the -- turns the LED on for a number of different faults. So you
`get, I don’t know I can’t remember the faults, fault one, fault two, fault
`three, you turn the LED on.
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`JUDGE ARBES: I guess what I’d like to know is that the overflow
`condition and the service cycle has expired, both say that the LED flashes
`once, are those two different behaviors or is that one behavior?
`MR. BREGMAN: They are two different behaviors and I’ll tell you
`why. So in response to their argument we went back and we responded to it.
`If you look on slide 57 the specification itself actually says for the service
`cycle fault, the operator will flash the diagnostic light once every two
`seconds for two seconds. Let’s call that a slow flash, and then in the source
`code, in the comments for the source code for overflow fault, what does it
`say? It says turn on and off every quarter of a second. Those are two
`different types of flashing that are disclosed in the reference.
`Just looking at the text, our Petition never relied on the analysis of the
`source code. They came back and said oh, we looked at the source code and
`it’s got these jumps and if you jump from here to there, the same code is
`being executed therefore you get the same flashing. That’s inconsistent with
`the specification, and as we responded to, in our Reply, when you go
`through the code that’s not how it works. You can execute the same code so
`you can jump to or call the same code and execute it differently and that’s
`how we explained that in our reply brief.
`So I mean I think this is a bit of a red herring to be honest Your
`Honor. I think that as long as you’ve got two different faults, two different
`identities of faults, it meets the limitation of the claim.
`So if we go to slide 59, that disposes of that last element the
`communicating the identities of faults. The only other argument that they
`raise is with respect to the remote input/output unit. Really I don’t see how
`there could be a dispute about this. Clearly the reference talks about the wall
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`unit and the wall switch synonymously. These are two different terms that
`are used in the patent which is not uncommon to refer to the exact same
`piece of equipment. How do we know that? That’s what the reference says.
`Crimmins says, and I’ve got it here, the wall unit includes three button
`controls open, close and stop, and I’m on slide 60, sorry Judge Horvath if I
`didn’t mention that.
`“A wall mounted switch for allowing the user to command the open,
`close, stop functions.”
`These are all consistent. Of course the wall units and the wall switch
`are the same, and that was confirmed by our expert, Mr. Lipoff, who said a
`person of ordinary skill in the art would have readily appreciated that the
`wall unit and the wall switch are used synonymously. They never took his
`deposition on this. It stands unrebutted and that’s the only evidence in the
`record on this.
`JUDGE ARBES: Counsel, can we go back to the apparatus
`limitation. I’d like to ask one more question.
`MR. BREGMAN: Yes, sure.
`JUDGE ARBES: On page 47 of your Petition if you have that in front
`of you.
`MR. BREGMAN: I don’t have it very handy, maybe we can pull it
`
`up.
`
`JUDGE ARBES: There is -- in the bottom paragraph, it says,
`“Crimmins’s controller will pulse the LED a number of times
`corresponding to an error code in accordance with a predetermined signal
`algorithm.”
`What evidence is there that the controller pulses a number of times?
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`MR. BREGMAN: So we’ve got that. We have that, I can show that
`to you. I can go back to that, Your Honor. On slide 57 of ours if you can
`pull that up Alex? So there are two portions in Crimmins that talk about
`pulsing the LED, one for the service cycle fault and one for the overflow
`fault. For the service cycle fault, and this is a direct quote out of Crimmins,
`“The operator will flash the diagnostic light once every two seconds
`for two seconds until the unit is serviced and the cycle count is clear,” and
`then for the overflow fault the comments in the code say that it turns it on
`and off every quarter of a second when there is an error.
`JUDGE ARBES: But those seem to be a number of times. They
`seem to be a frequency that the LED is flashing. I mean the first excerpt that
`you’re pointing to right there is it will flash every two seconds for two
`seconds until the unit is serviced and the cycle counter is clear. Doesn’t that
`imply that it’s going to continue until you service the unit? It’s talking about
`the frequency, not the number of times.
`MR. BREGMAN: I think that may be correct, Your Honor. So
`maybe, yes, whether it flashes it a number of times or frequency, I think it’s
`the same thing. As long as it’s displaying it to a user that the user can
`distinguish what -- in fact, the claim, sorry, the claim doesn’t even require
`that the user has to distinguish anything. All it has to do is send different
`error messages at different error signals to the wall unit. There doesn’t even
`have to be a user involved.
`JUDGE ARBES: Okay. So is there any disclosure in Crimmins of
`flashing the LED a specific number of times for a specific fault? Three
`times for this fault, five times for another fault, for instance.
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`MR. BREGMAN: I don’t think there is that exact disclosure, Your
`Honor. I think flashing it on and off every quarter of a second when there is
`an error I think is a number of times. It’s a number of times per second, I’m
`not really seeing the difference. So it’s a number of time per second as
`compared to Crimmins, sorry as compared to the 611 patent, which says
`flash it seven times and you’re done, flash it six times and you’re done.
`Slightly different but it’s the same thing. It’s flashing it every quarter of a
`second so every second flashing it four times, in essence.
`JUDGE ARBES: And how does that impact your analysis of claim 8?
`So claim 8 recites a display apparatus at the remote input/output unit on
`which the error codes from the controller can be displayed.
`MR. BREGMAN: Yes.
`JUDGE ARBES: If that is true that we’re displaying the frequency
`rather than a number of times, how does that impact claim 8?
`MR. BREGMAN: Sure. So claim 8 depends on claim 7. Claim 7,
`we’re jumping a little bit, this is not the anticipation ground, it’s the
`obviousness ground and for the obviousness ground for claim 7 we
`explained at length how the Weik reference generates error codes on
`demand. So the user at the wall-control unit says I want to know what the
`diagnostic errors are. Weik generates those and it sends them to somewhere,
`sends it to the wall-unit. Then we relied on Crimmins in claim 8 to say
`Crimmins is an LED, LED that receives pulses, it turns on and off exactly
`the same way that the 611 patent works. It’s just an LED with a cable
`connected to it and it can receive pulses from Weik that just turn it on and
`off a number of times.
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`So again the claim doesn’t say a number of times here. Claim 8 just
`says a display apparatus with a remote input/output unit -- so that’s an LED,
`exactly the same as is in the 611 patent -- of which the error codes of the
`controller can be displayed. Weik talked about sending error codes. It sends
`error codes. All it has to do is just send it pulses. It doesn’t have to be blink
`it seven times, it could be blink it every quarter of a second just as is
`disclosed in Crimmins, as long as it’s sending error codes, and I think it lines
`up perfectly with the 611 which has got the exact same structure. It’s just an
`LED that’s receiving current and it’s turning on and off to display error
`codes.
`JUDGE ARBES: So blinking every quarter second can constitute the
`display of an error code in your view?
`MR. BREGMAN: It can and it does, and that’s what it says. That’s
`what it says in the reference. If it didn’t do that there would be no reason to
`blink, why would the reference even describe different ways of blinking. I
`mean we just turn the LED on and that would be that and that would be the
`error, but it says turn the LED on in some instances, flash it one way in other
`instances, flash it a different way in other instances. Does that answer your
`question, Your Honor?
`JUDGE ARBES: Yes.
`MR. BREGMAN: Okay. So I think maybe the place to jump to now
`is the -- I think we’ve dealt with the substance. The Patent Owner has done
`in their Patent Owner Response, they didn’t do this in their Preliminary
`Response, is they came back. I think it’s a little bit of a Hail Mary argument
`at the last minute and they are saying hold on a minute, the Petition didn’t
`rely on an anticipatory reference, it relied on this Frankenstein combination
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`of two references and I’d like to just talk about that a little bit and dismiss
`that argument.
`So firstly, if we look at slide 15. If you look at slide 15, this is out of
`our Petition. We define Crimmins. We say Crimmins, which is Exhibit
`1004, Exhibit 1009 -- 1009 is the file history -- and then we introduce why
`this Exhibit 1009 was publicly available because it was publicly available as
`of the date that the Crimmins patent issued so we talk about its public
`availability and then we get into what is the Exhibit 1004.
`If we jump to the next slide Alex. Exhibit 1004, despite what the
`Patent Owners say, was never presented as a single reference by itself. How
`do we know that? That language in the paragraph we just read and I’ll parse
`that out. So Exhibit 1004 was merely presented as a convenient way for the
`Board to review portions of Exhibit 1009. How do we know that? This is a
`quote from that same page 3 of the Petition. “The file wrapper Exhibit 1009
`was publicly available at least as early as the date the patent issued.” So we
`introduced that it’s publicly available and then we used these words that
`we’ll talk about in a minute, but it says that “For convenience the issued
`patent and its exhibit that’s filed with the original application,” that’s from
`Exhibit 1009, “are included in Exhibit 1004 to allow citations to column and
`line numbers.” For convenience the patent was included, but it was the
`application as filed, the contents of the application as filed that we were
`relying on.
`And you’ll see the Patent Owner get up in a moment and talk about
`this issue and I ask you to look to see how they creatively quoted this
`section. You’ll see 1009 is not mentioned and you’ll see this language that
`for convenience we’re including the issued patent to allow citations to
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`column and line numbers, you’ll see that language disappear with a couple
`of ellipses in their slides.
`That doesn’t get rid of it. That is in our Petition and I think it’s clear
`that that’s how we treated it in the Petition, how the Patent Owners treated it
`in their Preliminary Response and how the Board treated it in the Institution
`Decision. Even if the Patent Owner was right, which we don’t think they
`are, let me just jump ahead a little bit here. Well let me just deal with the
`application as filed a little bit more.
`If we jump to slide 19, I don’t think it’s disputable. We put the case
`law in here for you, that publicly accessible applications as filed do qualify
`as prior art, and that’s on slide 19. How do we know that the application is
`filed from Exhibit 1009 includes the Exhibit A? Well if you look at slide 21,
`you’ll see there are 34 pages of the application as filed. This is the
`descriptive text. Slide 22 shows another 60 pages of Exhibit A. Slide 23
`shows the drawing of 15 pages and then slide 24 shows you the transmittal
`sheet that accompanied the application as filed and it says that the patent
`application contains 94 pages of the specification. What are those 94 pages?
`Thirty four pages of the descriptive text plus the sixty pages of exhibits, so
`we know that the application as filed included Exhibit A and Exhibit A was
`admitted and this was admitted by --
`JUDGE ARBES: I’m sorry. Can you go back to the previous slide?
`MR. BREGMAN: Yes.
`JUDGE ARBES: If there were 94 pages of the specification, why was
`Exhibit A not printed on the issued patent then?
`MR. BREGMAN: Well that’s an interesting question, Your Honor.
`So back when we deal with the other claims later you’ll see the other prior
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`art reference also from the Patent Owner, the Schindler reference, did the
`exact same thing. They just had this exhibit at the end. The Patent Office
`rules changed in the interim and said if you want to include a source code
`listing, you have to file it on Microfiche. If you don’t file it on Microfiche,
`it doesn’t get published with the data. That’s the rule.
`JUDGE ARBES: That change didn’t occur before this application
`was filed?
`MR. BREGMAN: It did occur before this application was filed.
`JUDGE ARBES: Okay. But that was not followed?
`MR. BREGMAN: That was not followed. So they filed the
`application with Exhibit A. It wasn’t followed. That’s why we relied on the
`application as filed and not the issue patent because the application was
`filed, was publicly available as of the date that the patent issued and the
`application as filed absolutely includes Exhibit A, and if we look at slide 25,
`Patent Owner’s expert admitted that -- I’m not going to read it out for you --
`but he admitted that Exhibit A is part of the application as filed, so I don’t
`think there can be any dispute that the application as filed includes Exhibit
`A. The application as filed was publicly available, they’ve never disputed
`that, and that’s what we relied on in the Petition.
`But, even if we were wrong and the Patent Owner was right, that the
`Petition relied on the Crimmins patent -- not on the Crimmins 1004 that we
`were using -- if it relied on the Crimmins patent, well the patent also
`includes Exhibit A. How does it include Exhibit A? Incorporates it by
`reference, and this is what the Patent Owner said in their Patent Owner
`Response. They said the Crimmins patent does not include any language
`that could be considered incorporation by reference of Exhibit A. Don’t
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`forget, Crimmins is their own prior art reference and they say the Crimmins
`patent doesn’t include any language, and they go further. They say an
`incorporation by reference would have the effect of including the text of the
`document, in other words Exhibit A, in the Crimmins patent. Well guess
`what? They did incorporate it by reference and we’ll show you how.
`So the controlling law on this is the Husky decision, the Federal
`Circuit’s Husky decision, and in that case the Federal Circuit -- we lay this
`out on slides 29 and 30, not going to go into it in too much detail -- but the
`Federal Circuit said the following. If you were going to have a successful
`incorporation by reference, you’ve got to do two things. You’ve got to have
`a general incorporation by reference statement and you’ve got to have a
`specific incorporation by reference statement.
`Well let’s look what happened in the Crimmins reference. So if we
`look at page 33, next slide please, page 33 and this is the first paragraph of
`the Crimmins patent it says, this is a continuation of prior application No. 09
`whatever filed already, that’s its parent application, so it’s a continuation
`claiming priority to its parent application and then it says “which is hereby
`incorporated by reference in its entirety.” That’s a general incorporation by
`reference statement saying hey, everything in our parent application forms
`part of this specification.
`Next slide please. Then we go to the last paragraph of Crimmins.
`What does it say? It says “Exhibit A is a copy of the source listing for
`computer software to operate a commercial door operator having its
`functions described above and including the following modules,” and it lists
`a number of source modules, I’m sorry that’s a little blurred on the screen
`here but it includes a number of source code modules. That is the specific
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`incorporation by reference. A person of skill in the art reading this would --
`I just cannot see how there could be any dispute that if you read that general
`incorporation by reference statement, it points you to the parent application
`and part of the parent application is Exhibit A. By the time you get to the
`last paragraph of the spec and it starts talking about Exhibit A, you know
`exactly where to look and this has been confirmed by our expert on slide 38.
`You’ll see he says,
`“A person of skill in the art would have had one place to look for the
`described computer software in identified modules and therefore it would
`have been routine for a person of skill in the art to look in that one place for
`this material.” Of course it would. That was the document that was
`incorporated by reference and this is where they would look.
`I’m not going to go in detail through slides 39 through 43 but we line
`up for you the various different modules that I mentioned in Exhibit A to the
`different modules in the source code that show up in Exhibit A.
`Now Exhibit A from the
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