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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ANALYTICS FOR LIFE, INC.,
`Petitioner,
`
`v.
`
`8825319 CANADA LIMITED,
`Patent Owner.
`____________
`
`Case IPR2017-01742
`Patent 9,131,864 B2
`____________
`
`Record of Oral Hearing
`Held: October 24, 2018
`____________
`
`
`
`
`Before JOSIAH C. COCKS, SCOTT A. DANIELS and
`BARRY L. GROSSMAN, Administrative Patent Judges.
`
`
`
`
`Case IPR2017-01742
`Patent 9,131,864 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID S. MORELAND, ESQUIRE
`LAWRENCE AARONSON, ESQUIRE
`T. PAUL TANPITUKPONGSE, ESQUIRE
`Meunier Carlin & Curfman, LLC
`999 Peachtree Street, N.E. Suite 1300
`Atlanta, Georgia 30309
`404-645-7700
`dmoreland@mcciplaw.com; laaronson@mcciplaw.com;
`ptanpitukpongse@mcciplaw.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`PAUL C. HAUGHEY, ESQUIRE
`Kilpatrick Townsend & Stockton, LLP
`2 Embarcadero Center, Suite 1900
`San Francisco, California 94111
`415-273-4787
`phaughey@kilpatricktownsend.com
`
`MICHAEL KORENBERG, ESQUIRE
`Queens University, Department of Engineering
`Kingston, Ontario
`Canada K7L 3N6
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`
`October 24, 2018, commencing at 10 a.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-01742
`Patent 9,131,864 B2
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`P R O C E E D I N G S
`- - - - -
`JUDGE COCKS: Good morning. Welcome to the Board. We are
`here today for Oral Argument in IPR 2017-01742, involving U.S. Patent
`Number 9,131,864.
`Let's begin with the introduction of Counsel. Will Counsel for
`Petitioner please state their appearance today?
`MR. MORELAND: Yes, Your Honor; David Moreland from
`Meunier Carlin & Curfman, Atlanta, Georgia, for Petitioner.
`MR. TANPITUKPONGSE: Good morning, Your Honor. Paul
`Tanpitukpongse, Counsel for Petitioner, also from Meunier Carlin &
`Curfman.
`JUDGE COCKS: All right. Thank you. And Counsel for the Patent
`Owner, please state their appearance.
`MR. HAUGHEY: Yes, Your Honor; Paul Haughey from Kilpatrick
`Townsend for Patent Owner. And I've got with me the Inventor, Professor
`Korenberg. Hopefully, he can answer some questions if you have ones that
`are too tough for me. He was involved a lot in the preparation of this.
`JUDGE COCKS: Thank you for joining us today. As we indicated in
`the Trial Hearing Order, each side has 60 minutes of argument time.
`Petitioner will go first and present their case and may reserve rebuttal time.
`Patent Owner will then argue their opposition to the Petitioner's case, and
`also present their case with respect to any motions that are outstanding,
`including Motion to Amend. Patent Owner may also reserves rebuttal time.
`Petitioner will then use any reserved time to respond to all aspects of
`the Patent Owner's case. And then the Patent Owner will use any reserve
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`time to respond to any opposition to these motions. So, with that being said,
`Mr. Moreland, you may begin when you're ready.
`Let me add, Judge Daniels is joining us remotely, so when you're
`referring to demonstratives, he cannot see what's on the presentation screen
`but we copies of them, so if you can refer to the demonstratives by number
`that would benefit Judge Daniels.
`MR. MORELAND: I sure will. And I've a copy for the Court
`Reporter.
`JUDGE COCKS: Yes. We will take them in (crosstalk).
`MR. MORELAND: As well as for present Counsels.
`REPORTER: Thank you.
`MR. MORELAND: Thank you, Your Honors.
`JUDGE DANIELS: Judge Cocks, this is Judge Daniels. Can you
`hear me okay?
`JUDGE COCKS: Yes, we can hear you, Judge Daniels.
`JUDGE DANIELS: Mr. Moreland, let me address a housekeeping
`issue, I wanted to first -- and I think it's in one of your first two slides; if I
`take you to your -- I think it's slide 2, it says: instituted grounds.
`MR. MORELAND: Yes, Your Honor.
`JUDGE DANIELS: So, I just wanted -- we had to tease out some of
`your grounds here a little bit, and I just wanted to focus on this one by
`Korenberg in particular because of the SAS decision.
`MR. MORELAND: Sure.
`JUDGE DANIELS: So, you have obvious and anticipated, and for
`obviousness I guess with an asterisk here. We didn’t really see an
`obviousness argument here. I think that was what I had in the original
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`decision to institute. So, my question here, I guess is: is that something that
`we're doing here, or not?
`MR. MORELAND: That's a great question. We don't need to get
`there. I mean, the reference expressly discloses the limitations of the claims,
`so we should not be talking about obviousness. We raised it just because of
`the SAS decision post-institution, and should the Board for some reason,
`obviously not adopt the position of Petitioner as to anticipation, we do
`believe there is -- that it would be proper to assess the obviousness ground,
`and the reference itself would provide sufficient motivation for that.
`JUDGE COCKS: So, let's be straightforward. Are you maintaining
`the obviousness ground?
`MR. MORELAND: Yes. I mean to the extent that it is -- I don't
`believe it's necessary, but I'm not, we are not -- Petitioner is not giving up on
`that ground, if you will.
`JUDGE COCKS: Well, let's recognize something.
`MR. MORELAND: Sure.
`JUDGE COCKS: That it has not been briefed as a part of the trial,
`post-Institution, and in our institution decision we had quite a bit of concern
`that it was adequately supported.
`MR. MORELAND: Mm-hmm. Sure.
`JUDGE COCKS: Is that understood?
`MR. MORELAND: I definitely understand that. And again, I think
`the reference itself would provide -- I think the concern was around
`motivation, the lack of motivation, and maybe the fact in Petitioner's, in our
`briefing, there was not express statement of obviousness at the very end of
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`the claim charter, and maybe some other issues as well. So, I certainly
`understand the issue with it.
`JUDGE COCKS: Okay.
`MR. MORELAND: And again, I don't think it's an issue that I'm
`certainly not going to discuss obviousness here today, it's not necessary to
`get to the resolution of the case.
`JUDGE COCKS: Okay. And the reason -- and Judge Daniels
`indicated -- the reason we bring it up is because it was not one of grounds
`that was instituted, and yet SAS I believe implicates this, but we did have
`some comments in the institution decision, which I believe still stand as of
`this date.
`MR. MORELAND: Okay.
`JUDGE COCKS: That being said, you may proceed.
`MR. MORELAND: Okay. All right! Thank you. Well, let me do
`one thing first, so I'll just let you know that, so the slides have been certainly
`condensed. So I'm going to do my best to make sure that I'm pointing you to
`the correct slide, if I don't do that for some reason, just let me know, if you
`need me to give you -- point to where I am. I think the original slide deck
`was a little bit over-zealous in the number of slides that we could get
`through today, so I'll certainly trimmed that down, hopefully for the benefit
`of all of us, to go through this subject matter.
`JUDGE COCKS: Let me ask you.
`MR. MORELAND: Yes.
`JUDGE COCKS: Are you reserving any time?
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`MR. MORELAND: I am reserving, yes. I would like to reserve at
`least 30 minutes, if I finish early then any additional time, but 30 minutes for
`sure.
`
`JUDGE COCKS: Okay. Thank you. You may proceed.
`MR. MORELAND: All right. Thank you. So let's, I just want to talk
`first, and this is -- excuse me, let me bring this up. The clicker is working
`here. So, on this slide that Judge Daniels was just referring to as A4L2,
`these claims are grouped into three pretty distinct groupings of claims, and
`so we've shown them here on A4L2 just for the benefit of the Court, you’ve
`got group one that depends from claim 1, group two that depends from claim
`9, and then group three that's claims 19 and 20.
`So, I'm going to follow that order as I discuss the grounds in the
`claims here. But I'm going to start of course with independent claim 1, and
`the initial grounds, and just to open the hearing on this issue and to give a
`framework for our discussion, I wanted to talk about what these claims
`entail, and the questions that need to be resolved to determine whether or not
`they are anticipated or obvious.
`And the first question would be: was it known to model an
`electrophysiological signal for analysis? And the answer for that is, yes, the
`patent itself provides that.
`The second question is: was it known to perform some derivative
`process of that signal for further analysis of the data? And again, the answer
`to that is, yes, we provided prior art on that issue, and we can discuss that
`particular prior art as we go through today. But the answer is yes.
`And then third, was it then --
`JUDGE DANIELS: Mr. Moreland?
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`MR. MORELAND: Yes, sir.
`JUDGE DANIELS: What is a model? I mean is a model, is a model
`anything other than the raw, original data, whether it's cleaned up to
`eliminate noise? I mean, if we do a transform, and I don't care what
`algorithm we use, whether it's, you know, fast Fourier transform, or fast
`orthogonal search, or whatever; if we put that in another domain, and then
`take out what we need from there, the constituents that we need, and then
`put them back into the original time domain; that's a typical electrical
`engineering process and method that gives us a new -- a better, cleaned-up
`signal. Is that a model?
`MR. MORELAND: Sure. That would be an example of a model I
`believe as the -- and just saying it's from a single-processing standpoint,
`absolutely, and it's defined by -- or provided in the patent, certainly a model
`would be encompassed within any representation of that signal, that is based
`on an outcome of a process to derive that signal, and reconstruct that signal.
`So, reconstruction is the way I view it. One way to do that would be
`matching pursuits, a fast Fourier transform, as you just mentioned, FOS,
`which we talk about a good bit in the petition itself.
`Dr. Anderson, our expert witness on the case goes through and
`supports the petition as to the sort interchangeability of those from a single
`processing standpoint. So, surely the model -- a model would be, for
`example, in Scharf if we are using FFT, that would be a model of the
`reconstructed signal that's being output in that particular patent.
`Does that answer your question?
`JUDGE DANIELS: Thanks. And am I in the right ballpark, and
`obviously Patent Owner's Counsel can speak to this as well, although I can
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`ask the question again, but is the MFOS an alternative to a fast Fourier
`transformer? Are we doing the same thing? Are we transforming that data?
`Are we breaking that signal down, looking at the constituents and then
`putting it back into a model?
`And from what I can tell by reading the background; and the very
`good explanations, for the most part, is that we again get another model, and
`maybe it's a better or a cleaner model in the fast Fourier transform, but are
`they essentially alternatives?
`MR. MORELAND: Certainly, yes. They are alternatives and they
`are alternatives in this particular space because you really don't -- the way I
`understand this, you wouldn't really care which model you're using, as long
`as you're getting a signal that represents what you're receiving from the
`patient.
`So we have, for example, leads connected to, if we were going to do
`an ECG monitor, then leads connected to the patient, those leads are
`providing input to a processor, and that processor is analyzing and trying to
`reconstruct a model of the signal, whether that's in the time domain, whether
`it's analog reconstruction it doesn’t -- you know, that doesn’t matter.
`We have, at the end of the day, a reconstructed signal that then can be
`-- from there more processing can be done to assess that signal, whether it be
`just displaying the signal to a doctor who can then look at the ECG graph,
`for example, and determine if there's an abnormality, or as explained by
`Scharf, taking a derivative of that signal, and then assessing the output of
`that derivative, which gives a different waveform for assessment by the
`doctor.
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`So, yes, there are alternatives. And again, Dr. Anderson does speak in
`terms of that, and we have even Patent Owner's expert opine that, for
`example, the fast Fourier transform in Scharf could be interchanged with
`FOS, it would be just a known technique. I mean, at the end of the day what
`you're looking for is a signal that accurately reconstructs what you're
`receiving from the patient, because that's what the doctor needs to ultimately
`look at.
`JUDGE DANIELS: Thank you.
`MR. MORELAND: You're welcome. So, going back to the sort of
`framework here, and this, it leads right into Judge Daniels's question,
`because was it known to plot the data to be assessed by a doctor? And then
`also was it known to use techniques such as coloring portions of it that may
`be abnormal or plotting the data in such a way that you can highlight various
`abnormalities? All of that has been done for ages by doctors.
`I don't think there's any question that plotting techniques are not very
`well known, a doctor in -- in a practical experience with -- I wouldn't say the
`doctor, if they're going to put a plot or a graph -- excuse me, a representation
`of something in front of you, they're going to highlight areas that they want
`to discuss with you. Again, those three sort of basic questions for the
`framework of the discussion, as it relates to claim 1, and the dependent
`claims, and we can go from there.
`So, let's look at independent claim 1, so that's at A4L4. I think the
`Board is familiar with this claim, so I'm not going to spend a lot of time, at
`least initially, on the first A, B and C, the first three limitations.
`What I want to focus on though is using the derivative, and
`specifically Petitioner has argued that using the derivative as it's set out in
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`this claim, is a statement of intended use, and there is a very good reason
`why it's a statement of intended use, and I'll get to it in a second, but just
`reading it, on its face it gives no specifics, it gives no -- it provides some
`context for using but it doesn’t give specifics. That's a classic case of
`statement of intended use, we provide case law on that issue, and the Patent
`Owner has not, not provided any contrary arguments.
`JUDGE COCKS: Counsel, I've read your briefing, and I think I know
`where you're going, but just to spell it out. So by statement of intended use,
`what do you want us to take from that?
`MR. MORELAND: That it's not limiting.
`JUDGE COCKS: Just disregard it? It's not limiting?
`MR. MORELAND: It's not limiting. Just as the -- just as in In re
`Anderson: for the use by a motorist in determining a route, that language is
`very analogous to this, that was a statement of intended use, determined to
`be a statement of intended use.
`JUDGE COCKS: But isn't this an active statement, you have to use
`the derivative to do something, in this case it ultimately detected the
`abnormality, but isn't that a positive recitation that has to be complied with, I
`guess?
`MR. MORELAND: Well, the problem is, is that the specifics are
`unknown in this, and this goes, just in the case law of intended use,
`Boehringer is a case, I'll just give you the claim 320 F.3d 1339, it talks to the
`specifics of when you're looking at a statement like this, does it provide
`enough specifics so that we actually know what's required by the claim?
`And let me go ahead and just fast forward, because here, Patent Owner has
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`said that it's -- using means taking it, and not taking it, and the Patent Owner
`response, it even said directly using.
`So if you're directly using the derivative to do something, but the
`Patent Owner's expert, even just related to that using in his view is viewing
`information, it's just the process of taking that derivative, doing something
`with it, and ultimately presenting a representation to a doctor who can then
`use the data to perform some analysis, or diagnosis is actually the language
`that the Patent Owner's expert uses.
`So, you can see here, just at A4L13, and this the Patent Owner's
`expert opining on what it means to use, discussing using in the context of
`claim 1, and it says, "The physician is going to look at some representation
`of the model." And then in A4L15, I asked the specific question: does use --
`using doesn’t mean cause and effect? And their expert, Dr. Zalesky, says:
`no, it doesn’t mean cause and effect. He agrees with the premise of that
`question.
`JUDGE DANIELS: Mr. Moreland, one of the things, I want to make
`sure we're not obfuscating what's going on here in the claim. There are two
`limitations in claim 1, and then also in claim 21, which is the amended --
`proposed amended claims, and it's obtaining the derivative, and then D is
`using the derivative. I don't want to -- I don't want to combine those.
`You're talking about using the derivative, and we also have obtaining
`the derivative, and if I'm not incorrect, and I'm remembering my math,
`taking the derivative is like obtaining the derivative, and that means you're
`gettingdy over dx, you're looking at the slope at some point on a curve, in a
`signal, and you're taking over information from that. That's an action, right?
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`MR. MORELAND: Agreed. Obtaining the derivative would be an
`action, I would agree with that. But I guess it's our point that we're
`discussing here, using the derivative. The problem is, if we get into the
`Patent Owner's response, if you look at Dr. Zalesky's expert report and his
`expert declaration; they read claim language into claim 1, and say: using
`means a lot of other things, and Patent Owner's expert actually goes to the --
`if you read his deposition, he says it means going all the way out to the
`model of the ratio; the ratio of derivatives, and plotting that which then can
`be viewed by a doctor for assessing an abnormality. The claim doesn’t say
`that.
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`JUDGE COCKS: Counsel, let me, just -- I have this question.
`MR. MORELAND: Yes.
`JUDGE COCKS: Is what is allegedly being read into claim 1, is that
`now expressed in claim 21, the proposed amended claim?
`MR. MORELAND: It's not. It's not, it was not -- the specifics of
`what you do with the derivative are not, are not in claim 21.
`JUDGE COCKS: Okay. Go ahead. I'm sorry.
`JUDGE DANIELS: Wait a minute though. Let's stay on this point
`for a second. So, using the derivative, I'm not sure -- I'm not sure you're
`getting me to intended use at the moment, I am getting that this may be very
`broad, because we don't know how we are “using” the derivative, there's no
`explanation here in Part D of the claim.
`MR. MORELAND: Sure.
`JUDGE DANIELS: But aren't we getting some aspects in the
`amended claim, and you probably are going to get to that, but in the
`amended claim, the proposed amended claim, it looks like they're
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`determining another element, a value that's been related to the derivative.
`And granted, there may not be a lot of specifics with that, but that seems to
`be a little bit more specific than just simply “using?”
`MR. MORELAND: We will talk about claim 21, hopefully, I'll
`expand on that in the second half of the argument, in rebuttal time, but
`certainly that claim, that specific claim language is also very, very broad, I
`can't remember the claim language off the top of my head, but you're right, it
`does reference a value, but it's any value related to the derivative I think.
`So, it could be the order of the derivative, it could be how many times
`you cycle in your process for deriving the derivative, it's so broad that it --
`unhinge is not the right word -- but it really has no -- it's not tethered to the
`application for sure.
`I say that, and kind of going back to the use, and just used in the
`claim, and to your point, that claim is extremely, extremely broad, and so we
`can discuss that. You know, statement of intended use, there's no specifics -
`-
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`JUDGE DANIELS: But when you get there -- when you get there,
`when you get there keep this in mind. And you just said, whether it's
`tethered to the claim, or whether the claim -- the new language is tethered to
`the specification. It seems to me they're talking about some ratios that
`would be the value that's in the claim. We can characterize the claim
`language, even the added claim language as broad, but I see a tether, I see
`the connection to the specification. So, that's what I see.
`I'm just saying these things and asking you these questions, because I
`want to make clear to you, so that you address them, because some of the
`feedback we get from attorney’s who argue in front of us is: I want to know
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`what the Judges are looking for. So, I'm telling you what I'm looking for.
`I'm looking for why this is perhaps over broad from you, and I'm not sure
`I'm going to be sold that it's completely untethered (crosstalk).
`MR. MORELAND: Yeah, and agreed. Well, if the claim language --
`back to your point on claim 21, if the claim language specifically called out
`the ratio, then I would say, okay, there's some relationship to the actual
`they're using, and the ratio, it doesn’t specify that. It probably purposefully
`doesn’t specify that to be broad, but when if you're not going to claim that
`ratio of derivatives, then the claim has to be read broader than that, and so it
`is untethered in that respect.
`There's not a correlation between that claim language and unless you
`read the specification into the claim, you just don't get there, because there's
`no ratio of derivatives recited in claim 21.
`So, let me keep going here, because I do want to hit A4L16 really
`quick. This is Dr. Zalesky, the Patent Owner's expert, who is trying to
`provide information on what using means; and he ultimately gets to it, look
`it's a representation that's provided, and then the doctor does the diagnosis.
`That's what using this means. You provide some data and from that data a
`doctor diagnoses an abnormality or not.
`So, let's now turn to Scharf, because this is -- if we're going to say that
`using to assess an abnormality is limiting, then Scharf shows that. Scharf
`actually shows it two different ways. I've got, this is A4L6, we've got --
`we've highlighted, this was in the Petitioner's steps to generate the
`reconstructed plethysmographic signal, so that is the process by which the
`signal was just being reconstructed as we talked before. A model is being
`created of that signal that further processing can be performed.
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`I will point out that Dr. Zalesky, the Patent Owner's expert, in his
`deposition said, steps 103 through 106 could be replaced by FOS. And
`certainly our expert had said, he would be inclined to use FOS, it would be a
`good process to use to reconstruct the signal.
`But what happens once you reconstruct the signal in Scharf? In
`Scharf you take the second-order derivative of that reconstructed signal, and
`then you assess it, and there's a couple ways that Scharf talks about assessing
`it, it talks about -- I won't get the terminology right, but hopefully I'll get the
`acronym right, SDPTG, which is truly the second-order derivative of PPG, a
`plethysmograph, which provides in itself data that a doctor can use to assess
`abnormal conditions of a patient.
`But then Scharf also goes on to say, that's one possibility. Scharf also
`goes on, and says: well, we could also take that second-order derivative and
`use that as an ability to further filter out the signal, and clean out artifacts
`that may be in the signal, so then we can present a cleaner version of the
`signal, that will be easier for the doctor to use to diagnose a patient's
`condition.
`So again, using as it's stated in claim 1 is extremely broad, Scharf ,
`covers, even if we say it's direct using, SDPTG would be an example of
`potentially a direct use of the signal for an abnormality analysis by a doctor
`going through the process and filtering out other abstract -- artifacts maybe
`in the signal using the second-order derivative, there's another way that it
`could be used that ultimately will get to an assessment of abnormality.
`JUDGE DANIELS: Mr. Moreland, can you -- one of the things I
`noticed, and I can't remember whose brief it was in, where it talked about
`this issue of first or second-order derivatives. Can you remind the Panel if
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`this is a -- if this is a point of dispute, if the acronym you just referred to is
`really for the second-order derivative, as I think you said, but it's whether it's
`a first order or a second order an issue here?
`MR. MORELAND: No. It doesn’t matter. It could be anywhere. If I
`recall the 864 Patent talks about various orders, and certainly Scharf
`discusses the orders being any number of various orders that can be used for
`the post-processing, if you will, of that signal.
`So, no, I don't it matters, the order. For example, when we start
`talking about the ratios, the patent specification is very specific that order of
`A can equal 1, the first derivative, and then if you're doing a ratio of A
`minus 1, it would be a derivative of the signal itself, which is the signal of
`derivative zero, which is the signal itself. So, a derivative order of zero is
`potentially even possible within the broad disclosure of the patent
`application.
`Okay. So, let's turn to claims 2, 3, 4, this is A4L23. I'm not going to
`spend much time on these, because these are -- I mean, these are just the
`reciting aspects of the order of the derivative, it's a real number, it's positive
`numbers, it's positive images of those that were shown in Scharf. We have a
`second-order derivatives, of course that's the real number, of course that's a
`positive image.
`A4L25, here we have a claim that, again, is very -- written very broad,
`it does not really -- it says that there's a derivative of order A, and also of
`order A minus 1, and then that ratio exists. That there's a ratio that exists out
`there of A over A minus 1, for that signal, and Patent Owner's own expert
`said: unless you're dead, you're going to have, you're going to have
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`electrophysiological signal that's going to have such ratio, that ratio is going
`to exist.
`So, he answers my question, and the electrophysiological signal will
`have a derivative of order A over A -- derivative of order A minus 1, that
`exists during the reading. And he said, "With exception of the so-called flat
`line, yes." So if we have an electrophysiological signal incoming you're
`going to satisfy claim 5. And that's at A4L26, just for the record.
`So, now let's look at A4L27 which is claim 6, here we again have this
`language of, in order to -- use it in order to detect abnormality, which again
`would be a statement of intended use, as it relates to claim 6, again, there's
`no specifics as to how you're using this, how you're actually assessing an
`abnormality.
`And as a broader issue, which we'll talk more about probably in the
`substantive claims, the teachings of the 864 patent do not provide any details
`as to what is abnormal versus abnormal when it comes to the signal
`processing, and specifically when you have a ratio of derivatives, what is
`normal and what is abnormal, it gives no examples. It actually gives no
`graphs whatsoever in the patent that even show a derivative being plotted.
`So it does not provide --
`JUDGE COCKS: So, what do you want us to take from that?
`MR. MORELAND: Well, this is more related to the substitute claim
`21, but I do want you to take from that that there is no detection in this
`patent. And we'll talk more about that.
`JUDGE DANIELS: But there's no detection in this patent -- and I
`know you said you want to talk about it more later -- but there's no detection
`in this patent, it's definitely in the claims, I'm pretty sure I looked through
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`the spec and didn’t really see the word "detect" but I do see the word
`"identify", there may be some other words in there which seem to be awfully
`similar, why not detect?
`MR. MORELAND: Well, one reason is that -- and this is in the
`briefing, but certainly their expert did not provide any examples of when a
`ratio of derivatives, for example, would provide an abnormality, there's no --
`again, going to the spec itself, the specification itself the basis for -- there are
`no examples, and we can talk about Sitrich later.
`Sitrich is an example where you have examples of what's abnormal,
`and you have examples of what's normal, you compare the two and you
`determine where the abnormalities lie, so that's pretty akin to a detection, if
`you will, because you can actually show to the doctor that highlight areas on
`the graph that show, okay, I've got a discrepancy here, based on a known
`abnormality, and a healthy patient, if you will.
`Here there's none of that. Again, there's no graphs in the 864 Patent
`of a derivative at all, much less a graph of a ratio derivative, the closest that
`the 864 gets to detection, is saying that the ratio of the derivatives could be
`helpful for predicting tachycardia , we don't know how it could be helpful.
`And if it's truly helpful for predicting tachycardia, then claim 6
`certainly is known, because they don't give any details about how a doctor
`would use it, so a doctor must be intimately familiar with those ratios, and
`how they correspond to abnormalities, because there's no teaching of that in
`the patent specification.
`So, just going back to claim 6, here we have the use of the ratios, and
`we have provided examples in the art of such -- using normalized
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`derivatives, for example, relating to cardiac conditions, X 124 -- 1,024 and
`X-1028 are two examples of those.
`And Dr. Anderson, I'm going to -- I'm sorry, let me go to A4L28 --
`JUDGE GROSSMAN: Mr. Moreland, before you switch slides.
`MR. MORELAND: Sure.
`JUDGE GROSSMAN: I know you want to wait until later to address
`the amended claim, but I'd like t
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