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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`POWER-PACKER NORTH AMERICA, INC.,
`d/b/a GITS MANUFACTURING CO.,
`Petitioner,
`
`v.
`
`G.W. LISK CO., INC.,
`Patent Owner.
`____________
`
`Cases IPR2017-02034 and IPR2017-02035
`Patent 6,601,821 B2
`____________
`
`Record of Oral Hearing
`Held: December 12, 2018
`____________
`
`
`
`
`Before BART A. GERSTENBLITH, GEORGE R. HOSKINS, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`
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`
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`IPR2017-02034 and IPR2017-02035
`Patent 6,601,821 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`JONATHAN H. MARGOLIES, ESQUIRE
`EDWARD R. LAWSON, Jr., ESQUIRE
`KATHERINE W. SCHILL, ESQUIRE
`Michael Best & Friedrich, LLP
`100 East Wisconsin Avenue, Suite 3300
`Milwaukee, Wisconsin 53202
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MICHAEL J. BERCHOU, ESQUIRE
`ANDREW J. ANDERSON, ESQUIRE
`Harter Secrest & Emery, LLP
`50 Fountain Plaza
`Suite 1000
`Buffalo, New York 14202-2293
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`
`December 12, 2018, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE GERSTENBLITH: Good morning, everyone. We are
`here for oral argument in two related cases, IPR2017-02034 and
`IPR2017-02035, Power-Packer North America, Incorporated, doing business
`as GITS Manufacturing Company versus G.W. Lisk Company,
`Incorporated.
`I'm Judge Gerstenblith. And to my left on the screens, on the far
`left is Judge Hoskins appearing remotely from Michigan. And on the right
`side of our screen is Judge Goodson appearing remotely from California.
`Let's start with petitioner, and I'll ask each counsel to come up to
`the podium, please, and enter your name for the record.
`MR. MARGOLIES: Good afternoon, Your Honors. Jon
`Margolies on behalf of petitioner. I will primarily be doing the argument
`today.
`
`JUDGE GERSTENBLITH: Welcome. Are you also with
`petitioner?
`MR. MARGOLIES: Do you want me to introduce everybody?
`JUDGE GERSTENBLITH: That would be great.
`MR. MARGOLIES: With me today is lead counsel, Ed Lawson,
`and my colleague, Katherine Schill. We also have with us James Dennis,
`who is general counsel North America of Power-Pack.
`JUDGE GERSTENBLITH: Thank you. Welcome.
`MR. BERCHOU: Good afternoon, Your Honor. My name is
`Michael Berchou. And I'm here with my partner, Andrew Anderson, on
`behalf of G.W. Lisk.
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`JUDGE GERSTENBLITH: Welcome. Before we begin, let me
`just confirm that there are no outstanding motions on either side; is that
`right, Mr. Margolies, for petitioner?
`MR. MARGOLIES: I believe that's correct. This court seems to
`have ruled on the motion for observations.
`JUDGE GERSTENBLITH: I will say that that is a slight
`misnomer. There is nothing to actually rule on. It's just the parties giving us
`notice of certain things. So I understand that there is a motion for
`observations and response, but there's no other?
`MR. MARGOLIES: No other pending matters.
`MR. BERCHOU: Correct.
`JUDGE GERSTENBLITH: We set forth the procedure for today's
`hearing in our trial order, which is paper 25 in IPR2017-02034 and paper 23
`in IPR2017-02035. Although these cases are not consolidated, our trial
`order indicates that the oral arguments will be held together and a single
`transcript will be provided.
`Each party will have 90 minutes of total argument time. Don't feel
`like you have to use the entire time. We never object to that. We will begin
`with petitioner, who will start with your case-in-chief for both cases. You
`may reserve time for rebuttal. Then we will turn to patent owner. Patent
`owner may also reserve time for rebuttal in the initial argument, responding
`to what petitioner has said and in the rebuttal time responding to anything
`petitioner raised during its rebuttal.
`I have a timer up here, which in this room doesn't actually show
`you the number of minutes remaining. It goes by a green light, yellow light,
`red light. And I'm happy to set that timer for whatever time you would like
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`the light to change. So for example, if you wanted to reserve 30 minutes for
`rebuttal, I can set it for 60 so you know if that goes on, you still have the
`rebuttal time. Or we don't have to use it at all. Totally up to what either
`counsel would like. When you come up to the podium, just let me know,
`and I'm happy to change it.
`Also, we have your demonstratives. Have you each handed one to
`the court reporter?
`MR. MARGOLIES: Yes, we have, Your Honor.
`MR. BERCHOU: Yes.
`JUDGE GERSTENBLITH: Remember two things that you may
`not know. One is that the judges appearing remotely cannot actually see the
`screen that we have here up on the wall showing the demonstratives. They
`have the demonstratives, but they can't see that screen. So as you are going
`through, if you are using a demonstrative or other thing that you are
`referring to, please refer to the slide number or page or whatever it is that we
`may be looking at here, both so that they can keep on target and the
`transcript is as clear as possible.
`Petitioner, any questions about what I just said?
`MR. MARGOLIES: No, Your Honor.
`JUDGE GERSTENBLITH: Patent owner, any questions?
`MR. BERCHOU: No, Your Honor.
`JUDGE GERSTENBLITH: Let me just add one thing, which is
`that we will take at least one break, most likely after petitioner's opening.
`The floor is yours, sir.
`MR. MARGOLIES: Thank you, Judge Gerstenblith, Judge
`Hoskins, Judge Goodson. I would like to reserve 40 minutes for rebuttal. I
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`would also like to say I believe I will say what I have to say, answer all your
`questions and sit down. I do not feel the need to use the generous amount of
`time that you have given us.
`May it please the Court, at this point there does not seem to be any
`factual dispute as to what the prior art shows and what the prior art valves
`performed. The experts all agree the Martin patent explicitly states that
`Martin is a two-stage proportional control valve with two separate fluid
`paths, a directional control valve which directs one fluid and a main control
`valve, which is a flow-regulating valve in the form of a spool valve, which
`regulates and meters flow of other fluid precisely to a hydraulic component
`downstream. The experts all agree that Eggers discloses a valve which
`controls its flow in proportion to the input into a stepper motor. The experts,
`at the end of the day, agree that one of skill in the art could easily swap a
`poppet valve from Oleksiewicz for the spool valve in Martin.
`In order to escape the clear import of this prior art which between
`them anticipate all claims but claim 11 of the '821 patent and make '821
`patent obvious, patent owner does what the Supreme Court has told patent
`owners not to do for a century and a half. It treats the claims as a nose of
`wax, which can be twisted this way and that to precisely avoid the prior art
`and stay alive to fight another day in litigation.
`I understand that we are in the waning days of the broadest
`reasonable interpretation, but that is the standard that is to be used today. I
`do submit to the Court that even applying the Phillips standard, this Board's
`interpretation in the order instituting review is correct. Correct in light of
`the plain meanings of the words in the claim, correct in light of the extrinsic
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`evidence, and uncontradicted by the extrinsic evidence offered by patent
`owner to narrow the claims.
`I will start with a brief discussion of the construction disputes. I
`will then discuss the Martin patent, how the Martin patent shows the
`elements of all the claims at issue, followed by a discussion of the Eggers
`patent and now the unrebutted factual issues relating to claim 11 and
`obviousness.
`My argument will consist in the 2034 claims 1 to 11, grounds 1, 2
`and 3, the originally instituted grounds. And in the 2035, grounds 1 and
`ground 4. I will not be arguing the grounds that were not initially instituted
`nor the grounds that we did not discuss in our reply brief.
`JUDGE GERSTENBLITH: So would petitioner like to formally
`withdraw the other grounds?
`MR. MARGOLIES: Petitioners never like to formally withdraw,
`but I think this Court has a big enough burden on it, we will withdraw those
`grounds.
`JUDGE GERSTENBLITH: And that's for both cases?
`MR. MARGOLIES: For both cases. We are only going to be
`relying on the grounds this Court instituted originally.
`JUDGE GERSTENBLITH: Okay. Thank you.
`MR. MARGOLIES: The claim construction dispute concerns
`these three terms: Proportional valve, which in the claims state a two-stage
`proportional control valve assembly comprising various elements; a
`proportional control valve for regulating movement of a device comprising.
`There's a dispute as to the interpretation of flow-regulating valve which is
`precisely written in the claims as a flow-regulating valve that regulates the
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`flow of a first fluid or that controls first rate of the first fluid. Then there's a
`dispute as to what the import of the term "directional valve" is, a directional
`valve that controls flow of second fluid to the double-acting actuator or that
`regulates flows of fluids to and from the first and second surfaces of the
`double-acting actuator.
`I'll take these in order. Petitioner's claim construction is offered as
`the plain meaning of the term. And this was discussed in the order
`instituting these IPRs, which is that as a valve configured such that
`movement of the valve corresponds in size, degree or intensity to an input.
`We believe that this construction comports with the ordinary plain meaning,
`certainly the broadest meaning, but it also is taken in part from the
`dictionary cited by this Board.
`JUDGE GOODSON: Mr. Margolies, is it the petitioner's position
`that the preamble of the claim is limiting?
`MR. MARGOLIES: The Board made a persuasive argument that
`it is limiting, so we will not contest that here.
`JUDGE GOODSON: Okay, thank you.
`MR. MARGOLIES: The patent owner offered two different claim
`constructions. First in its original paper, paper 6, it argued that the valve had
`to be relative to the strength of an electrical control signal. There was no
`support for that in the record.
`The current interpretation is changed very little. It talks about a
`valve having output which corresponds to the magnitude or strength of the
`control signal such that a control signal of greater or lesser strength results in
`valve movements of greater or lesser distance. The difference between
`petitioner's claim construction and patent owner's claim construction that
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`will become much clearer when we discuss Eggers, because this applies to
`Eggers, is that patent owner is solely looking at the strength of a control
`signal, I would assume its amperage or voltage, as opposed to any other
`aspect of the size or degree. And there's really nothing suggesting that a
`signal which has a different size or degree in the case of Eggers pulses and
`which undisputedly in the record causes a valve to move in proportion to the
`size of that input is a proportional valve. Patent owner's claim construction
`is simply too narrow and it is narrow solely for the purpose of avoiding the
`prior art in front of this Board today.
`The most important dispute that the parties have --
`JUDGE GERSTENBLITH: Can we go back one second. So back
`to slide 3, so in terms of patent owner's current claim construction, what
`specifically is different about that construction as compared to what you
`have on the left of the screen under the plain meaning?
`MR. MARGOLIES: Well, certainly strength of the control signal
`is limited to one aspect of the control signal. It's not clear what magnitude in
`patent owner's construction refers to. If magnitude is it has more pulses,
`therefore, it's of greater magnitude, then we probably do not have a very
`large dispute. If they are saying magnitude is a synonym for electrical
`strength, then it's the same dispute as before. So I guess you get into a claim
`construction of a claim construction.
`But if patent owner's construction of magnitude includes size and
`degree and that an electrical signal that contains more or fewer pulses is a
`magnitude, which we believe should be, then there's very little air between
`the two parties. It really comes down to the argument about Eggers and
`what's conveyed in the signal. If multiple pulses are considered a
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`magnitude, should be, but you never know what patent owner has in mind,
`then the dispute is relatively small in construction.
`JUDGE GERSTENBLITH: If we look at signal, it says a signal in
`their proposed construction for the current construction there on slide 3, I
`may be asking the wrong counsel for this, but would you think that that
`meant sort of -- I don't like to think of it in terms of pulses, but that it would
`have to be a constant signal or that it could be a signal, then it stops and then
`there's another signal, would that be considered two signals or one signal?
`MR. MARGOLIES: We believe, and I believe our expert has
`testified, that it's a pulsed signal. So the signal contains X -- I think it's
`referred to as X with a sub E in the Eggers patent. So that signal containing
`multiple pulses is one signal.
`JUDGE GERSTENBLITH: Thank you very much.
`JUDGE GOODSON: Could you point us to where in the record
`the expert presents that testimony? You don't have to do it right now, but
`when you get a chance, if I could get that cite, it would be helpful.
`MR. MARGOLIES: Yes, Your Honor, I will point that out during
`my discussion of Eggers.
`The biggest claim construction issue the two parties have relates to
`flow-regulating valve. And I will submit that the dispute, the gap here is
`profound, and it has actually gotten more profound since the order instituting
`this IPR. We believe the plain meaning and the plain meaning that is
`governed by the way the claim was written by the patentee states it's a valve
`that regulates the flow of a fluid. It says a flow-regulating valve for
`regulating the flow of a second fluid.
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`What patent owners originally said is a valve designed principally
`for regulating the fluid's flow rate. What patent owner is now saying is that
`it is a valve that meters the flow rate of a fluid without providing directional
`flow control. It actually doubles down. It now doesn't say it has to be
`principally designed for regulating the fluid's flow rate. It has to always be
`designed for regulating the fluid flow rate, and once it does something else,
`if it is absolutely positively a flow-regulating valve that regulates the flow of
`a fluid but also contains the ability in it to direct a flow somewhere else, to
`perhaps a drain port, it stops being a flow-regulating valve. And there's
`really no support for that anywhere. There certainly is not any support in the
`intrinsic evidence.
`If we go back to slide 2 and the claim term itself, a flow-regulating
`valve that regulates a flow of a first fluid or that controls the flow rates of a
`first fluid, this is functional language. This tells you what the
`flow-regulating valve has to do.
`The patent tells you and claim construction black letter law tells
`you it's not limited to the preferred embodiment. The patent owner tells you
`right in the '821 patent although specific examples have been given of flow
`control valves or other devices, such other valves, devices, mechanisms,
`actuators can be substituted in accordance with the overall teaching of this
`invention. That's Exhibit 1001, the '821 patent, column 6:61 to column 7:5.
`The extrinsic evidence in large part used by patent owner here is
`that Dr. Craig wrote in his declaration, he cited some chapters of some books
`and stated a directional valve and a flow-regulating valve refer to two
`distinct sets of valve classifications and structures based on the primary
`function for which they are designed. Exhibit 2003, paragraph 27.
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`He sets up a world in which all valves are in a dichotomy. You are
`either one or the other. And we know, we know from the prior art, we know
`from the testimony that that's not true. A valve that is specifically designed
`to both precisely meter the flow and a valve that also has directional
`capabilities doesn't stop being either one. You don't say it stops being a flow
`control or flow-regulating valve or it stops being a directional control valve.
`There's no extrinsic evidence showing that. But more importantly, it's
`contrary to the intrinsic evidence. And when we get to the Martin patent, it
`will be exactly contrary to what Martin tells you it discloses.
`JUDGE GOODSON: Mr. Margolies, does petitioner cite any
`extrinsic evidence to counter the patent owner's extrinsic evidence of these
`chapters and books saying that there are these two classes of valves? Do we
`have any extrinsic evidence from the petitioner to say that there is overlap
`and that a flow-regulating valve can also be another directional valve?
`MR. MARGOLIES: We didn't for the purposes of claim
`construction specifically cite extrinsic evidence. We relied on the intrinsic
`evidence. But the evidence in the record that we have contains both the
`citations from patent owner's extrinsic evidence. We had cited the portions
`of those that actually say that a direction control valve can provide some
`flow regulation.
`Our expert has testified that all directional control valves are
`flow-regulating valves. And --
`JUDGE GERSTENBLITH: Let me interrupt for one second. I
`think you answered Judge Goodson's question to a certain extent, but if
`flow-regulating valves can have some impact on direction and directional
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`control valves can have some impact on flow, then how the heck does
`anybody know which one is which?
`MR. MARGOLIES: A directional valve has to have directional
`control in it. And why don't I immediately turn to Martin and its preamble.
`JUDGE GERSTENBLITH: Well, is this from the claim
`construction perspective?
`MR. MARGOLIES: I will do it from the claim construction. A
`directional valve has to choose a direction. There's no question about that.
`It has to go to place number 1 or place number 2. A flow-regulating valve
`does not need those capabilities. So once you say a directional control
`valve, you have to have the directional ability. The art and one in the art can
`very easily tell the difference, and it's often stated in advertising or in the
`patents if it contains other abilities to control. So a directional valve can also
`contain the ability to precisely meter flow, to regulate the magnitude of the
`flow coming out of it, and that's one of the features that would be offered
`with the valve. So it's part of an additional gloss to what a directional
`control valve is.
`Very interestingly, flow-regulating valve, as stated by Dr. Craig, is
`not a term of the art. It's not something that he has seen. How about the
`term flow-regulating valve, have you heard that used as frequently as for
`flow control valve? No, flow rate control is the way we specify that. And
`it's not a term he sees in this book -- in his books.
`What a flow-regulating valve does -- well, what a flow control
`valve does would have to be specified. If you need a flow control valve that
`is simply a one entry/one exit, it would likely be specified there. If you need
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`a flow-regulating valve that can both regulate flow and also choose inputs,
`that would be specified.
`These kind of terms are not -- one of skill in the art says what does
`this valve do? I need a valve off the shelf, what do I use it for? And that's
`how they know the difference.
`JUDGE GERSTENBLITH: So they distinguish the difference
`based on either the function or the purpose that was intended by the
`manufacturer of the valve?
`MR. MARGOLIES: Correct.
`JUDGE GERSTENBLITH: And so if I understood right, it's a
`little bit easier maybe to make the distinction of a directional control valve
`or a directional valve because it must have the ability to send fluid to at least
`two different directions.
`MR. MARGOLIES: Right.
`JUDGE GERSTENBLITH: It may also include flow-regulating or
`flow control properties and functions?
`MR. MARGOLIES: It can, yes.
`JUDGE GERSTENBLITH: So then if somebody goes into the
`store or how you classified it, they are looking for a valve for a specific
`purpose and they say, okay, I need a directional control valve, they are going
`to look, they are going to say, okay, this one can separate it into at least two
`different directions, separate the fluid, this is a directional control valve, they
`are going to have the information there or be able to find out through
`calculations sort of what potential flow-regulating properties or features it
`may have. But they are going to know, okay, this is a directional valve; the
`manufacturer knows it's a directional valve; the folks working at Home
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`Depot know it's a directional valve, and the customer is buying it for that
`purpose.
`MR. MARGOLIES: Absolutely. It will tell you the inputs, it will
`tell you the outputs and it will tell you is it an on/off A/B valve or are there
`additional ways to control the meter of the flow, to use patent owner's term.
`JUDGE GERSTENBLITH: So what's wrong with a construction
`of directional valve being a valve designed principally for controlling the
`direction of a fluid's flow into different paths?
`MR. MARGOLIES: The third term at issue. That's a very good
`question, and I will explain why we think it's an issue. It is not an issue for
`what the prior art does. No one contests that each, Eggers and Martin, show
`a first valve which is a directional control valve that goes to A or goes to B
`that subsequently downstream affects the main control valve, the
`fluid-regulating valve.
`What patent owner has tried to do with this narrow directional
`valve, and it is a much narrower definition in its own expert's report, is to try
`to back that into the Martin patent because Martin calls its main control
`valve both the main control valve and a directional valve. And in effect, the
`argument has been, A-ha, Martin calls itself a directional control valve,
`therefore, it cannot be a flow control valve. And that's why their claim
`construction is for a purpose to try to construe the prior art. And we think
`that it's easier to have the plain meaning. It controls the direction of a flow.
`The issue of primarily also makes things unclear. And the reason
`it makes things unclear is the testimony in the record about the Martin prior
`art. And actually, in any evaluation of the patent going forward, how do you
`know what primarily is? What Dr. Craig testified to was that it was
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`IPR2017-02034 and IPR2017-02035
`Patent 6,601,821 B2
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`important in the Martin servo valve to control flow. It's a feature built in
`there. It's expensive and it also does direction. So if you need something
`that does two things, what is primary? What is secondary? So therefore,
`primarily, something doesn't stop being a direction control valve. And this
`really isn't at issue for the prior art, but it's an important rhetorical point.
`Something doesn't stop being a directional control valve just because it does
`something else at the same time, just like a flow-regulating valve doesn't
`stop being a flow-regulating valve because it does something else at the
`same time.
`The way the terms were used in the patent and the way that they
`are understood by both experts at this point is you look at -- these are
`engineers. Not lawyers. They get things done. Things are done for
`functions. And you look at the function and you specify the valve and you
`pick the valve. And that's not only extrinsic evidence. That's intrinsic
`evidence. Mr. Tyler, in his patent, said it doesn't have to be limited to the
`flow control valve shown in the patent. Anything that accomplishes the goal
`of this invention would work. So that's why we are disputing this claim
`construction.
`JUDGE GERSTENBLITH: I understand that it's a little bit --
`there's a lot in this term. What I'm trying to understand is that when we
`come off of the slide and we are just talking about how one of ordinary skill
`would discern or understand, say, for example, the directional control valve,
`I keep hearing you say, and I'm not trying to criticize it, but I keep hearing
`you say that it's based on function.
`MR. MARGOLIES: Yes.
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`JUDGE GERSTENBLITH: Essentially the primary function. It
`may have other stuff. The principal use, what does somebody want to use
`this for, and so they call it, that's the name they give it to the valve. And it
`may have other, you know, functions as well, but if it controls the direction
`of flow or it is designed for directing fluid into different paths, somebody
`says that's a directional control valve even though it has other functions may
`regulate to some extent fluid flow. If it has at least that, it can be called a
`directional control valve.
`MR. MARGOLIES: I would say that's true. If it can control
`direction, it is a directional control valve.
`JUDGE GERSTENBLITH: Whether or not it also has fluid
`regulation, flow regulation.
`MR. MARGOLIES: Absolutely. In fact, if we go back to the
`claim language in slide 2, all we say a directional valve has to do is control
`the flow of the second fluid to a double-acting actuator. It can do other
`things. It can not do other things. This is functional language. So I don't
`think we are having a disagreement. We are not excluding anything. Nor
`are we saying a primary function. It could be a secondary function. It could
`be one of many functions. As long as something can control a flow of one
`fluid to a double-acting actuator or to particular locations, it is a directional
`valve. It can be a directional valve plus or it can be just a pure A/B valve.
`JUDGE GERSTENBLITH: Does anybody ever call a valve a
`directional valve -- a directional and flow-regulating valve, in other words,
`both together?
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`Patent 6,601,821 B2
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`MR. MARGOLIES: Yes. I will show you in Martin. If we are
`done with the claim construction, I will show you in Martin where he does
`exactly that.
`JUDGE GOODSON: I have a few more questions, but I don't
`know if it's more convenient for you now to point out where Martin says
`that. Whatever is easiest.
`MR. MARGOLIES: Why don't you ask the questions.
`JUDGE GOODSON: Is it the petitioner's position that all
`directional valves are also flow-regulating valves?
`MR. MARGOLIES: What our expert said was that all directional
`valves regulate the flow of a fluid. And in that respect, they are
`flow-regulating valves for regulating the flow of a fluid. So yes, that would
`be our position because from the physics of directing -- from choosing
`whether a flow is going in one place or another, you actually are regulating
`or controlling the flow.
`JUDGE GOODSON: And do you also have the position that all
`valves regulate fluid flow to some extent?
`MR. MARGOLIES: I believe all valves do regulate fluid flow to
`some extent.
`JUDGE GERSTENBLITH: How do you respond to the argument
`that patent owner made -- this is on page 18 of their patent owner response.
`They make the same point that, you know, everybody knows that all valves
`inherently regulate flow in some respect, so that means that the construction
`that the Board adopted in the institution decision renders some portion of the
`claim language, specifically flow-regulating, to be superfluous?
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`Patent 6,601,821 B2
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`MR. MARGOLIES: I don't believe the Court's construction is
`superfluous, and I don't believe it's superfluous for two reason. Reason one
`is, and if we can go back to the claim language itself, it is a flow-regulating
`valve that regulates the flow of a first fluid. So that is all it has to do. It has
`to regulate the flow. And we would say starting and stopping it would be
`regulation of the flow. But if you look at the claim in the totality, this has to
`be a proportional valve. So it needs something more.
`So the ultimate regulation of the flow for purposes of this patent
`has to be in proportion to an input. So a simple on/off valve where the flow
`is regulated on/off wouldn't meet this patent. But it's not because a
`flow-regulating valve that regulates the flow of a first fluid. A very broad
`term was chosen for regulating the flow of a first fluid.
`JUDGE GOODSON: Okay.
`MR. MARGOLIES: As we get to Martin, I will show why this
`dispute -- while our expert feels that all directional valves are flow control
`valves, because they do regulate flow, why it ultimately doesn't matter even
`if the concept of metering or restricting, something more than an on/off with
`adjustability doesn't matter for the ultimate determination of a
`flow-regulating valve. But we do believe that the way this patent was
`written both in terms of these claims and the language stating that you can
`substitute valves that perform the function make it clear that all this
`flow-regulating valve, which is in the stream of things the second valve you
`see, all it has to do is regulate the flow of a first fluid. And that was the
`language chosen by the petitioner -- I'm sorry, by the patent owner.
`JUDGE HOSKINS: Mr. Margolies, in terms of the intrinsic
`evidence on the flow-regulating valve term, one of the things the patent
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`owner cites is the prosecution history of the '821 patent and the fact that
`Martin was a reference cited -- or I don't know if it was cited to or cited by
`the examiner, but it was a reference considered by the examiner. And the
`patent owner
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