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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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`TOPGOLF INTERNATIONAL, INC.,
`Petitioner,
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`v.
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`AMIT AGARWAL,
`Patent Owner.
`____________
`
`Case IPR2017-00928
`Patent 5,370,389
`____________
`
`Record of Oral Hearing
` Held: April 17, 2018
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`Before LORA M. GREEN, MICHELLE N. WORMMEESTER, and
`AMANDA F. WIEKER, Administrative Patent Judges.
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`NICOLE WILLIAMS, ESQUIRE
`ROBERTO J. DEVOTO, ESQUIRE
`DOUGLAS E. McCANN, ESQUIRE
`Fish & Richardson
`1425 K Street, NW
`Washington, D.C. 20005
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`AMIT AGARWAL
`Patent Holder
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`Case IPR2017-00928
`Patent 5,370,389
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF THE PATENT OWNER:
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`The above-entitled matter came on for hearing on Tuesday, April 17,
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`2018, commencing at 1:00 p.m. ET, at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00928
`Patent 5,370,389
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`P R O C E E D I N G S
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`JUDGE GREEN: Good afternoon. We are on the record. Welcome
`everyone. Please make sure that all cell phones are turned off, as they can
`interfere with the microphones.
`This is the Final Oral Hearing in IPR 2017-00928. This proceeding
`involves Patent No. 5,370,389.
`Judge Wormmeester is to my right, and Judge Wieker is attending
`remotely. At this time we would like Counsel to introduce yourselves and
`your colleagues, beginning with Petitioner.
`MR. DEVOTO: My name is Roberto Devoto. And my colleagues
`will introduce themselves.
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`MS. WILLIAMS: Nicole Williams on behalf of the Petitioner.
`MR. McCANN: Doug McCann.
`JUDGE GREEN: And who will be presenting the argument?
`MS. WILLIAMS: I am.
`JUDGE GREEN: Okay. Thank you, Ms. Williams. Mr. Agarwal?
`MR. AGARWAL: Good afternoon, Your Honors. Amit Agarwal,
`pro se.
`JUDGE GREEN: Okay. Thank you.
`MR. AGARWAL: Thank you.
`JUDGE GREEN: Welcome to the Board. Consistent with our
`previous order, Patent Owner and Petitioner each have 60 minutes to present
`their arguments. Petitioner will proceed first to present its case-in-chief as to
`the challenged claims, and may reserve rebuttal time to respond to
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`arguments made by Patent Owner. Thereafter, Patent Owner will respond to
`Petitioner's case.
`As Judge Wieker is attending remotely, the parties are reminded to
`identify which slides they are on, or if you are using the record, to identify
`where in the record you are, in order to allow her to follow along. If she
`doesn’t know what slide you're on, she can't see them.
`The parties are also reminded that the demonstratives are only an aid
`to oral argument and are not evidence of record.
`I do have one housekeeping detail. Mr. Agarwal, you filed two patent
`owner responses, one of which was redacted to meet the word count. Do
`you have any issues with us expunging the first one that was not redacted?
`MR. AGARWAL: No.
`JUDGE GREEN: Okay. And Petitioner, do you have any issues with
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`that?
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`MS. WILLIAMS: No, Your Honor.
`JUDGE GREEN: Okay. Thank you very much. Counsel for
`Petitioner, you may proceed. Would you like to reserve time for rebuttal?
`MS. WILLIAMS: Yes, Your Honor. I would like to reserve 20
`minutes for rebuttal.
`JUDGE GREEN: Okay. And I will remind you that rebuttal is only
`to respond to arguments made by Patent Owner.
`MS. WILLIAMS: Yes. Thank you.
`JUDGE GREEN: When you are ready.
`MS. WILLIAMS: Good afternoon, Your Honors. There are three
`main points in the briefing which Petitioner is prepared to argue. However,
`based on Patent Owner's slides we believe that the issues really boil down to
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`a single issue. And that is that Bertoncino discloses, or renders obvious the
`significantly lower limitation. I am here to answer any questions as to the
`other issues as well, should you be interested.
`JUDGE GREEN: Okay.
`MS. WILLIAMS: But based on this, I'm going to skip ahead to slide
`11. The ’389 Patent, which is the patent at issue, claims a golf game. It's a
`point-scoring game to be played at a golfing range. The setup of this golf
`game includes a plurality of golfing tees, and coded golf balls that allow an
`electronic system to understand from which golfing tee the ball was hit.
`It also includes that plurality of target greens which are remotely
`located from the plurality of golfing tees. A golfer strikes one of the coded
`balls towards the target green, and if it lands on the target green, due to the
`structure of the target green and the slope it rolls -- the golf ball rolls
`downhill into the cup, which is below this point.
`At that point the ball is scanned, the golfing tee from which it is
`originated is identified, and that golfer gets a score according to which target
`green he or she hits.
`JUDGE GREEN: And is it your understanding that this game can be
`played with more than one golfer golfing at a time and still be able to scan
`the balls?
`MS. WILLIAMS: The claims one and six, which are the claims at
`issue, do not require more than one golfer, if you follow through beginning
`at 1C, it's striking one of said golf balls, and it follows through that single
`golf ball throughout the entire system. The setup itself, included in the
`specification, allows for more than one, but the claims that we are actually
`looking at, really only requires one.
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`JUDGE GREEN: Okay. Thank you.
`MS. WILLIAMS: Once the golf ball is sensed and a score is
`tabulated according to which target range is hit, that score is then shown on a
`monitor at the golfing tee.
`JUDGE GREEN: Does it have to be shown on the monitor to be in a
`kind of a -- it doesn’t really -- the claim doesn’t specify. Correct?
`MS. WILLIAMS: Correct, Your Honor. It's any sort of scoring
`device, so the term is actually used in the claim, which I believe is in 1F, is a
`scoring device, which is located at the golfing tee.
`JUDGE GREEN: Okay. Thank you.
`MS. WILLIAMS: So, today, let's focus on this significantly lower
`limitation. A portion of 1D of claim 1, states that the profile of the target
`green has a forward-most end located at the forward portion of the target
`green, having an elevation that is significantly lower than at the rearmost
`end.
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`So, what does significantly lower mean? Well, the ’389 Patent, other
`than in the claims, never uses the term significantly lower, so we must look
`at the specification to understand what it means.
`And included in the specification is Figure C, as you can see here at
`slide 12. Figure C has a front end around what is labeled 64, but is lower in
`elevation than the back end of the target green, which is labeled 42.
`The description of Figure 4C states that the claim has a downward
`slope near the front of the green, a receptacle hole which is at the lowest
`point, and then a gradual slope up toward the rear of the green. The ’389
`Patent also describes the overall target green as slopes to allow the ball to
`roll downhill toward the hole, and that is at column 5, lines 34 through 37.
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`So that's really it. That's how the patent itself describes what
`significantly lower means, and as I mentioned --
`JUDGE GREEN: So, is it your understanding that there's nothing
`necessarily in the specification of the ’389 Patent that talks about being able
`to see where the ball hits, where the ball hits the green? Under the Patent
`Owner's proposed construction, that requires the two things, right, to be able
`to see where the ball flies after you hit it, and also for it to be able to go into
`the -- there isn't -- to go into the hole, right?
`MS. WILLIAMS: Yes. So, there are two competing constructions,
`and actually I'll move on to slide 13 to answer your question. The Patent
`Owner's construction requires, one that slope of the -- the significantly lower
`term, requires allowing the player to see the shot -- so I think that's what
`you're referring to there -- as well as enabling the target green to catch the
`ball.
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`So, the issue with this construction and why it's incorrect is that those
`two limitations are write-in based on the prosecution history, but the portion
`of the prosecution history that includes these two, these two purposes, not
`necessarily limitations, didn’t have the term "significantly lower" in the
`claims at the time. And in fact, I can show you that portion of the
`prosecution history which is at slide 29.
`So here, at slide 29, this is one portion of the prosecution history at
`page 94, which is where the applicant is explaining what he means by lower.
`He says that applicant's target greens are purposefully graded to be higher in
`the rear portion than in the front portion, thereby serving two purposes.
`So, he is explaining this is why; (1) more likely to catch balls that
`strike the rear portion of the green, and (2) allow the player from the teeing
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`area to see the ball strike the green. However, if we actually look at the
`claims that were at issue during that Office Action, and we've looked at 1D,
`which is the corresponding portion of the claim, nowhere in the claims is
`that term "significantly". At that point significantly lower was not part of
`the claims, and not part of the prosecution history.
`So, really, it's not telling us anything about what significantly means,
`and again, the language itself is really only talking about a purpose not
`imposing a limitation. So, importing a limitation from the prosecution
`history that frankly is not there, there's no clear disavowal or clear disclosure
`of the claims -- the claim’s scope is improper.
`JUDGE GREEN: Would you really call that a disavowal? I mean, I
`don't know how that really limits the claim.
`MS. WILLIAMS: Exactly. Yes. No, I agree with you. It's not a
`disavowal, there's no disavowing, just saying that this is the purpose is
`completely different from saying: this is what it needs to be, anything else is
`not included. And again, significantly lower was not part of the claim at the
`time.
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`JUDGE GREEN: Okay. Thank you.
`MS. WILLIAMS: So, going back to slide 12, the understanding of
`significantly lower, really it's just focusing on, this is a golf game, this isn't a
`target green, and this is how it's sloped. As I mentioned, there are two
`competing constructions, I've just gone through the Patent Owner's
`construction is incorrect.
`The Board also construed the term “significantly lower,” in the
`decision denying Patent Owner's request for a rehearing.
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`JUDGE GREEN: Would you say it was actually a construction, or
`was it just more a statement that, this is the best we can find in specification?
`Because we declined it -- or we didn’t feel like we needed to construe
`anything explicitly in the decision of the institution. Correct?
`MS. WILLIAMS: Correct. That's right. The decision on the
`institution did not include a construction, and in fact the Petitioners didn’t
`put forward a construction. So, it could be called a construction, or it could
`be called -- we looked at the specification, there really isn't anything there.
`This is the best we can do.
`JUDGE GREEN: Okay.
`MS. WILLIAMS: That construction or understanding is based on the
`specification itself, and includes the fact that the overall target slope is it
`slopes downhill, and has a gradual slope from the front towards the back.
`The Petitioners submit that that is a more accurate understanding of the
`requirements of target green, and the Patent Owner's construction is
`incorrect.
`However, even taking Patent Owner's construction as true, as we will
`see, the prior art discloses the significantly lower limitation.
`So, let's look at the prior art. I'm now at slide 14. On the left here, we
`have that same Figure 4C from the ’389 Patent that shows that gradual slip.
`On the right we have Figure 5 from the ’224 Patent, which is Bertoncino, the
`piece of prior art that was not in front of the Examiner during prosecution.
`If we look at the circular targets in the ’224 Patent, Bertoncino, that has a
`very similar slope to that shown in the ’389 Patent at Figure 4C.
`And in fact, let's take one of those targets, sort of blow it up and see
`what we are looking at. With slide 15, we can see one of these circular
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`targets, and we can see that the front portion which is towards the golfer is
`significantly lower than the back portion, which is further away from the
`golfer.
`Now, as an aside, the Patent Owner attempts to completely discount
`Figure 5, because according to Patent Owner, we must only look at the
`figures that are looking at the targets from a side view.
`However, this is incorrect for several reasons. One, the claim itself
`does not limit the person of ordinary skill in the art to only looking at the
`side view. Two, Figure 5, as you can see, the perspective view gives one of
`ordinary skill in the art, the understanding, the ability to understand that the
`back is higher than the front. And then C, EWP Corp v. Reliance Universal
`Incorporated, states that prior art must be considered for everything it
`teaches, we can't just discount a portion of the prior art because it doesn’t fit
`with our theory.
`So, as I mentioned. If we look at the similarities between the slopes in
`Figure 4C of the ’389 Patent and Figure 5 of the Bertoncino Patent, these
`slopes are very similar, and in fact the elevation differences between the
`front of the target green and the back of the target green are very similar as
`well.
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`JUDGE GREEN: How can we look at it, with the suggestion, right,
`because we can't. Since there's nothing really talking about the slope, and
`you did the ’389 Patent, the patent at issue, and the Bertoncino patent, you
`know, they talk about what the slope actually is, or anything else, we can
`just kind of get a -- we can't really look at this, and say, oh, these slopes are
`the same. Correct?
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`MS. WILLIAMS: Mathematically, there are no numbers in either the
`’389 Patent, or in the prior art. It never says the slope must be X-degrees, or
`the elevation difference must be Y feet or inches. And in fact, requiring that
`of the prior art and (inaudible) or to understand whether or not it's
`significantly lower, discounts the fact that it's not in the ’389 Patent at all.
`JUDGE GREEN: Now, with your understanding of Mr. Agarwal's
`claim construction, do you think that would cover -- that it's something -- if
`the targets were closer to the tees, we could have less slope, and if it were
`further away, you could have a greater slope, given that the evidence of
`record seems to suggest that as it's closer you can see it better, and as it's
`further away you may have to adjust so that you can see where the ball is?
`MS. WILLIAMS: So, looking at Patent Owner's construction his --
`and I'm going back to slide 13 -- his requirements are that it allows the
`player to see the shot, and then it enables the target green to capture the ball.
`So, a target that is closer up, probably would not need as much slope, I agree
`with you there. It's all about what a golfer can see, and what a person of
`skill in the art would understand that a golfer can see, and understand how a
`golf ball did land on the target slope.
`It's also important, though, to remember that this is all in the context
`of the golfing game, a golfing game played with a variety of clubs on a
`golfing range. So, we are not only talking about far distances, we are not
`only talking about a specific club or driver. Nothing in the ’389 Patent says,
`you may only talk about the best players who hit it the furthest; we are only
`talking about the slopes of the targets that are 300 yards away.
`JUDGE GREEN: And the ’389 Patent doesn’t limit the game to
`drivers, correct?
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`MS. WILLIAMS: That's correct.
`JUDGE GREEN: That you talk about using long irons?
`MS. WILLIAMS: That's correct. So, the ’389 allows a golfer to
`practice his golfing skills, in no place does it say it's only about driving, and
`in fact if we look at the -- if we go back and look at the language of the
`claim itself, which was at slide 11, I believe, "It's a method for playing a
`point-scoring game at a golfing range." That gives us the context that we are
`looking at.
`So, not only does Figure 5 talk about -- or show a physical slope, and
`show a physical elevation difference, but looking at slide 16 now,
`Bertoncino states that the slope of the target, and the configuration of the
`various surface areas within the target, perfectly causes any coded ball hit by
`a user, and coming to lie at any point in the inner section, to be moved by
`gravity into the cup in the inner section. And the reason it's moved by
`gravity, is because of that slope of the target.
`So, slide 17 shows one configuration of the target green understood in
`the Bertoncino prior art. So, this is Figure 4. As you can see in Figure 4, the
`very left side of the target which has about -- around 29 is lower than 29 on
`the very right side. And for each concentric circle within this example of a
`target, 28 on the left side, closest to the golfer, is lower than its
`corresponding 28 on the right side.
`But this is for -- this is an example of the Bertoncino target with three
`concentric circles and three holes. Is it possible, and was it disclosed in
`Bertoncino that we only have one circle, one hole? Yes. It is, and
`Bertoncino tells us so at slide 18. Bertoncino states that: finally, whether in
`stand-alone form or shaped out of the ground of the range, the target 20 may
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`comprise a single section 22 with a single cup 30 connected to the lowest
`point on the surface.
`So, it's not necessarily a modification of Bertoncino in any way to
`state that you take the whole target and shape it with just inner section 22,
`it's in the language of Bertoncino himself.
`And Bertoncino never says that if we are using single section 22, we
`change the slope in anyway, or we change any aspects about the target
`green, it's merely that the cup is still at the lowest point, it still slopes
`downhill, and that that therefore means that the front elevation is still, just
`like in Figure 5, significantly lower than the back elevation. And in fact,
`Patent Owner's expert agrees that for single section 22 the slope matters.
`JUDGE GREEN: So, we are at slide 19?
`MS. WILLIAMS: Yes, we are at slide 19. Thank you, Your Honor.
`Patent Owner's expert, Mr. Hurdzan, agreed that if we look at one purpose
`for slope with the target that Bertoncino states, it's to cause the ball to roll
`into the hole. So, the slope of 22 leads us into single section 22, yes. So, the
`slope of 22 causes the ball to roll into the hole. He also agrees that the slope
`of the overall target causes the ball to roll into the hole. And again, a target
`shaped entirely out of section 22, will be sloped generally towards the tee
`scanned area, just as Bertoncino suggested.
`And looking at slide 20, Petitioner's expert agrees. And Mr. Robbins
`stated in paragraph 91 of his declaration, that as evident in Bertoncino
`Figure 5, the target green has a forward-most end, located at the forward
`position toward the golfer, substantially lower than the rearmost end. And
`then at paragraph 43, he stated that the target greens are sloped so that the
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`rear portion is significantly higher in elevation than the front portion, which
`means that the front portion is significantly lower in elevation than the rear.
`In deposition Mr. Robbins gave consistent testimony, looking at slide
`21, he stated that the part of the circumference closest to the golfer would be
`significantly lower than the part of the circumference that's apart from the
`golfer, correct? He agreed, yes. And again, this is talking about inner
`section 22.
`And if that person of ordinary skill in the art would understand this to
`be true, because both claims shaped in this way, with a significantly lower
`front end had -- existed in the prior art in 1992. In fact, Mr. Robbins stated
`that significantly sloped target greens were in the prior art, and that they had
`been that way for a long, long time.
`So, as we've just seen, the Bertoncino prior art reference discloses the
`significantly lower limitation. But should the Board find that disclosure is
`not there, it would still be obvious to a person of ordinary skill in the art in
`1992 to shape a target green in such a way as to allow for a significantly
`lower front end and back end.
`And in fact, it's important that the institution decision recognized this.
`It stated, "We've determined that, to the extent they are not disclosed,
`Petitioner has reasonably demonstrated that Bertoncino makes such a green
`obvious by teaching that the ability to see the lie of the ball is dependent on
`the ability to visually follow the path of the ball."
`JUDGE GREEN: That was just a reasonable likelihood, a different
`standard, correct? We have to look at it again from the preponderance of the
`evidence standards?
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`MS. WILLIAMS: This is -- Yes, correct. So here, it's a
`preponderance of the evidence more likely than not, as well as teachings of
`Bertoncino. So, based on the preponderance of the evidence standard, let's
`look and see what Bertoncino says about these, at slide 24. One,
`visualization, it's a known issue that visualization is important and that
`Bertoncino recognizes this. He states that the golfer's ability to judge the
`length of his drive is dependent upon his ability to follow visually the path
`of the ball. And then when it comes --
`JUDGE GREEN: And he does state though there may be issues with
`that, like the golfer may be near-sighted, or there may be trees in the way.
`It's almost as if Patent Owner's argument is almost a teaching away, being
`obviously the lie of the ball. What would your response be to that?
`MS. WILLIAMS: That is the Patent Owner's argument, however,
`several of the examples that Bertoncino gives would not be helpful for
`visualization without the target green also being sloped in such a way. For
`instance, having a colored ball, if the target green is flat or is perhaps sloped
`backwards, having a colored ball or having lights is not helpful unless the
`slope is there as well.
`JUDGE GREEN: Okay. Thank you.
`MS. WILLIAMS: Bertoncino also teaches the slopes driving ranges,
`as we've gone over, and it states that each target 20 preferably comprises a
`surface generally sloped towards the tee stands area, and again, the slope of
`the target causes any coded ball hit by user and coming to lie at any point in
`the inner section, to be both moved by gravity into the cup.
`And again, this is about a golfing game. The only way to score these
`points is for that ball to go into the cup and to be sensed. So, a target that
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`doesn’t allow for the ball to roll downhill and go into the cup would not
`work the way the context allows.
`So, looking at slide 25; this is whole idea. Take that target that we see
`in section 5 and shape the entire thing out at inner section 22, in a way it's
`taking that inner section 22 and stretching it so that its front point is at the
`forward-most end, and its back point is at the rearmost end, and always put
`the cup at the lowest point. And with a target with that shape, a person
`who's skilled in the art would create a target of that shape, and would find it
`obvious to do so, based on disclosure in Bertoncino.
`And taking a Patent Owner's claim construction, would it be obvious
`to a person who is skilled in the art to serve these two purposes that you
`mentioned? One, being the visualization, and the second to be catching the
`golf ball, but when it comes to catching of the golf ball, Patent Owner's
`expert admits that if there were standing technology available, it would have
`been obvious to design a green to catch a golf ball.
`Well, there was scanning technology available, and in fact in
`Bertoncino he uses C codes to scan the ball. So, here, Patent Owner's expert
`is saying that in the world of Bertoncino in 1992, before the ’389 Patent, it
`would be obvious to design a green to catch a golf ball.
`JUDGE GREEN: And that's slide 26?
`MS. WILLIAMS: Oh, yes, that's slide 26. And in fact, Bertoncino
`mentions that it's important to catch the golf ball. He says -- he gives an
`example and he says, it's effective for the balls landing at target.
`And moving on to slide 27, the prior art also -- in fact, the prior art is
`replete with examples of the visualization being helpful in terms of one side
`to sloping, helpful in terms of visualizing a golf ball.
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`For example, the Meikle prior art reference which is Petitioner's
`Exhibit 1015, the target green is structured -- or structure is formed at an
`incline to provide users of the golf range the appearance of a much larger
`target. Right there, that's just another example of this visualization.
`JUDGE GREEN: And that art was probably in the reply you
`presented?
`MS. WILLIAMS: That's correct. However, this art is just an example
`of what a person who's skilled in the art would know and would understand.
`And Bertoncino himself says that visualization is important, his art shows
`that not only is visualization important, but a person who is skilled in the art
`would understand that sloping a green or creating an elevation difference is
`one way to promote visualization.
`And in fact, Randall Manufacturing v. Rea says that the Board may
`consider the state-of-the-art and the common sense of the person who's
`skilled in the art, including documentary evidence consisting of prior art in
`the area, and this is just an example of Meikle, of the documentary evidence
`consistent of prior art.
`So, going back to Patent Owner's claim construction at slide 28, we
`see that a person of skill in the art with his or her understanding of the art,
`and with Bertoncino in front of him, would be able to create a green that
`allows the player to see the shot and enables the target green to capture the
`ball. And again, we submit that this is the incorrect construction, but taking
`that construction as true, the prior art makes such a significantly sloped
`target green obvious.
`And with that, our presentation is complete, unless you have any more
`questions.
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`JUDGE GREEN: Any more questions?
`JUDGE WORMMEESTER: No.
`JUDGE GREEN: I think we are good for now, so I will give you 24
`minutes in rebuttal so you –
`MS. WILLIAMS: Thank you.
`JUDGE GREEN: Mr. Agarwal, when you're ready.
`MR. AGARWAL: Thank you, Your Honor. So, let me begin with
`the thresholds, statutory burden of proof that --
`JUDGE GREEN: I will remind you, we are very familiar with all of
`this. But if you'd like to go through it, that's fine.
`MR. AGARWAL: Yes, Your Honor. The key phrase is proving a
`proposition, and I would just like to submit, in the context of this particular
`petition, and Petitioner's burden of proof, in law often there's a mathematical
`approach that makes sense for proving a proposition, and there's an
`nonmathematical approach which typically involves listening to the story of
`one party, and listening to the story of the other party, and basically picking
`which side makes more sense.
`And in this context I'd like to present some content which shows that a
`mathematical approach applies here and demonstrates that there is a gap in
`the evidence that can't be filled with judicial notice. And essentially the
`problem here, and let's skip ahead to the framework I've submitted, and that
`is what does --
`JUDGE GREEN: That's slide 5?
`MR. AGARWAL: Yes, Your Honor, that's slide 5. What is Topgolf
`attempting to demonstrate here? Topgolf is attempting to demonstrate that
`in the prior art the elevation difference is such that it satisfies, or renders
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`obvious, the significantly lower claim limitation. Their expert admitted, as I
`will show in the subsequent slide, that the significantly lower claim
`limitation requires a comparison between one point, the foremost end, its
`elevation which is a property of that particular point, compared with the
`elevation of the rearmost end, which by their admission, is another point.
`So, it's comparing one point to the other, and the parameter of interest
`here is elevation difference, which is mathematically related to but not the
`same as slope. The statutory burden is to prove a property about elevation
`difference, not a related concept to elevation difference, but if one were to
`choose to put forth evidence about that related concept, one would have a
`burden not under the statute, but under formal logic, to also look at the
`remainder of the equation.
`And that is demonstrated on this slide. Here, the proof -- the
`Petitioner has to prove that Y has some property, elevation difference has
`some measure, here it's significantly lower. The Petitioner has chosen to
`look at slope information about -- basically has an expert witness who said,
`here's a document that shows a certain type of slope, presents Y as the
`elevation difference, the slope is M, the missing piece here is horizontal
`distance. Horizontal distance multiplied by slope gives elevation difference,
`and --
`JUDGE GREEN: Does the specification for the ’389 Patent talk
`about any of this?
`MR. AGARWAL: Not explicitly. There's not one word in the
`specification, as Your Honor correctly points out, that states, here's a
`glossary of terms for folks who are not skilled in the art, because the patent
`document has one intended audience, that that is golf professionals, and we
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`have three golf professionals here, who, when they read the word
`"significantly lower" they articulated under oath, the perspective that they
`don't consider it to be equivalent to the slope.
`We have one expert who said, significantly lower slope equals -- slope
`means elevation difference. But all three of them, when they attempted to
`discriminate between the lower and significantly lower, they used the
`objective criteria articulated in my proposed construction.
`JUDGE GREEN: So, your argument
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