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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`EXOCAD GMBH AND EXOCAD AMERICA, INC.
`Petitioners,
`
`v.
`
`3SHAPE A/S,
`Patent Owner.
`__________
`
`Case IPR2018-00788
`Patent 9,336,336 B2
`__________
`
`Record of Oral Hearing
` Held: June 24, 2019
`__________
`
`
`
`
`Before SALLY C. MEDLEY, IRVIN E. BRANCH, and
`FRANCES L. IPPOLITO Administrative Patent Judges.
`
`
`
`
`
`
`
`Case IPR2018-00788
`Patent 9,336,336 B2
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MATTHEW B. LOWRIE, ESQ.
`KEVIN LITTMAN, ESQ.
`Foley & Lardner, LLP
`111 Huntington Avenue
`Suite 2500
`Boston, Massachusetts 02199-7610
`(617) 342-4000
`mlowrie@foley.com
`klittman@foley.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`ROGER H. LEE, ESQ.
`MYTHILI MARKOWSKI, ESQ.
`Buchanan, Ingersoll & Rooney
`1737 King Street, Suite 500
`Alexandria, Virginia 22314-2727
`(703) 838-6545 (Lee)
`(703) 299-6927 (Markowski)
`roger.lee@bipc.com
`mythili.markowski@bipc.com
`
`
`
`
`The above-entitled matter came on for hearing on Monday, June 24,
`
`2019, commencing at 1:00 p.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Patent 9,336,336 B2
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`P R O C E E D I N G S
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`1:00 p.m.
`JUDGE MEDLEY: Please be seated. Okay. Good afternoon. This
`is the hearing for IPR 2018-00788 Exocad GmbH et al. v. 3Shape A/S
`involving U.S. Patent Number 9336336.
`At this time, we would like the parties to please introduce counsel
`for the record at the podium and microphone, beginning with Petitioner,
`please.
`
`MR. LOWRIE: On behalf of Petitioner, I am Matt Lowrie of Foley
`& Lardner. With me is Kevin Littman of Foley & Lardner, and we are also
`joined by Till Steinbrecher who is the CEO of the Petitioner, who has come
`from Germany, and he apologizes because he left his suit jacket in Germany.
`JUDGE MEDLEY: No worries. Thank you.
`And for Patent Owner?
`MR. LEE: Good afternoon, Your Honors. My name is Roger Lee. I
`am representing Patent Owner 3Shape A/S. With me are counsel of record
`Mythili Markowski and Todd Walters.
`JUDGE MEDLEY: Okay. Thank you.
`MR. LEE: Thank you.
`JUDGE MEDLEY: All right. Each party has 60 minutes total time
`to present arguments. Petitioner will proceed first to present its case with
`respect to the challenge claims and grounds for which the board instituted a
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`trial and may reserve some of its argument time to respond to arguments
`presented by Patent Owner.
`Thereafter, Patent Owner will respond to Petitioner's presentation
`and may reserve argument time for a surrebuttal. Are there any questions as
`to the order of presentation?
`MR. LOWRIE: No, Your Honor.
`MR. LEE: No, Your Honor.
`JUDGE MEDLEY: Okay. And Petitioner, would you like to
`reserve rebuttal time?
`MR. LEE: Yes, 10 to 15 minutes, Your Honor. But we can see how
`it goes.
`JUDGE MEDLEY: Okay. And we don't have a -- you know, I have
`the clock here but we don't have it projected so you'll just have to keep track.
`And Patent Owner, would you like to reserve rebuttal time? Surrebuttal
`time?
`
`MR. LOWRIE: Yes, Your Honor. We would like to reserve 15
`minutes for rebuttal.
`JUDGE MEDLEY: Okay. Thank you. All right.
`MR. LEE: Thank you, Your Honor.
`JUDGE MEDLEY: Thank you. Okay. As a reminder, you see that
`we have Judges Ippolito and Branch. They can't see the demonstratives that
`you project on the screen. So please refer to the slide number so that they
`may follow along. And also be sure to speak right into the microphone;
`otherwise, they cannot hear you. We'd like to remind the parties that this
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`hearing is open to the public and a transcript will be entered into the public
`record of the proceeding. And at this time, I believe Judge Branch will
`address the parties' objections to the demonstratives that we received.
`JUDGE BRANCH: Thank you, Judge Medley. The panel has
`received the respective objections to the demonstratives. Demonstratives are
`not evidence. We are aware that the parties dispute whether arguments have
`been previously presented. These disputes have been noted and to the extent
`they are relevant to our ultimate decision the panel will consider the parties'
`respective positions when reviewing the complete record for the final written
`decision. Also, we will not rule on Patent Owner's pending motion to
`exclude at this time. It will also be decided as necessary as part of the final
`written decision. Any questions?
`MR. LOWRIE: Not from Petitioner, Your Honor.
`MR. LEE: Your Honor, Patent Owner does have a question.
`JUDGE BRANCH: Please.
`JUDGE MEDLEY: Can you -- can you hear him when he speaks,
`
`Gene?
`
`JUDGE BRANCH: I am able to hear him. Yes.
`JUDGE MEDLEY: Okay.
`MR. LEE: Patent Owner also has an outstanding motion to strike.
`Will a motion to strike also be decided in the course of rendering a decision -
`- a final decision, Your Honor?
`JUDGE BRANCH: Yes.
`MR. LEE: Thank you very much.
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`MR. LOWRIE: And for Petitioner I assume that also includes our
`request for briefing on strike -- to strike and I believe the board the said it
`would take it up on the decision as well.
`JUDGE BRANCH: That is correct.
`JUDGE MEDLEY: Okay. With those administrative things out of
`the way, we will get started. So, Mr. Lowrie, when you're ready.
`MR. LOWRIE: Thank you, and may it please the board. We have
`quite a few slides but thankfully most of them are quite brief and we can go
`to slide two. This just the cover from the patent-in-suit. I think the board is
`aware what it looks like. Next slide, please.
`This is the claim from the patent-in-suit -- Claim One -- and it's
`really there just for reference as an easy place to find it. The claim language
`that we are going to be looking at, as the board knows, is the 2-D image
`versus 3-D image and whether they remain separate and also virtually
`cutting of teeth. If we can go to the slide four, please.
`This is just -- again, I don't intend to spend a lot of time on it because
`it's in the briefing. But it's an overview of what issues are in argument. For
`Sachdeva, it's whether there is a disclosure of two dimension as well as three
`dimensional face model or morphable model. Whether they remain separate
`representations after being arranged, whether there's virtually cutting of at
`least part of the teeth or rendering at least part of the 2-D base image fully or
`partly transparent. Then there's the combination with Kopelman having the
`notion of 2-D and separate representations. There will be some claim
`construction that I'll talk about in a moment. Slide five, please.
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`And then the combination of Wiedmann with Sachdeva. Wiedmann
`was originally proposed as an anticipation and the board, among other
`things, and the board found it to be not anticipated based on the claim
`construction, and we have not contested the claim construction and so
`Wiedmann as a Section 102 reference is in fact out -- we would agree with
`that -- for purposes of this proceeding.
`JUDGE MEDLEY: So are you withdrawing it, or are you just --
`MR. LOWRIE: We are observing that the board found that it was
`not anticipated based on a claim construction, and we are not contesting the
`claim construction. So I wouldn't say that -- we are not making the
`argument. We are making an argument based on Wiedmann and based on
`all of the 102 stuff, supplemented with what the board asked us to address in
`its institution decision.
`JUDGE MEDLEY: Okay.
`MR. LOWRIE: Why don't we go to claim seven? So skip over six
`briefly.
`For claim construction there really is no disagreement, at least in the
`briefing for the most part. Everyone agrees that a 2-D image is a digital
`representation in XY format -- 2-dimensional format -- and the 3-D model is
`stored in a 3-D format, and they need to stay in their respective formats
`while and after being arranged.
`We would also say that there is no temporal limitation, which is to
`say you can arrange them as long as they remain separate for a bit. For
`example, before a user pushes a button to merge them, the limitation is met.
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`Case IPR2018-00788
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`Now, if we go back to Page 6, in the sur-reply, for the first time the
`Patent Owner argued that there is a temporal limitation -- that it has to
`forever remain separate -- we don't think that this is properly in play. We
`note the institution decision where the board says we note that our
`construction does not place a temporal limitation on how long the 2-D image
`and 3-D virtual model remain separate, and then the board went on to
`explain why.
`In response, there was nothing to contest what the board adopted as
`its claim construction. In the sur-reply they purport to. We don't believe
`that's fair because we haven't had an opportunity to brief it. They are, I think
`in their slides, going to be referring to prosecution history arguments, all
`kinds of things that were not in the response and I respectfully submit are
`not fair game.
`Even were the board to adopt a temporal limitation I don't think it
`would make a difference because the references all show that they remain
`separate, and even if it's possible to merge them, which I doubt because it
`wouldn't make sense, they will remain separate until somebody does
`something and that may be separate forever if nobody ever does it.
`And kind of flipping it on its side, if you're looking at, you know,
`does the claim cover a system, if at the end of everything when you're not
`really doing anything more, you can simply merge them together and avoid
`the patent.
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`It's kind of a result that doesn't necessarily make sense but that
`would be the result that would happen if the board were to adopt the Patent
`Owner's arguments on claim construction.
`So now if we go to slide eight, this is just the cover of Sachdeva,
`which I am about to talk about. Slide nine. So Sachdeva -- this is really just
`kind of an introduction. You can see the face model 102 and the 3-D tooth
`model 104.
`The face image/model is also referred to in the reference as a
`morphable model. We will see later morphable model doesn't mean 3-D. It
`can be 2-D as well, and that is in fact disclosed. You can see on this Figure
`6 that is indicating that the 3-D tooth model 104 is three dimensional and the
`fact image/morphable model is also three dimensional in this figure.
`If we could go to slide 10. This is Figure 7 and as the -- wow, that's
`really hard to see it's so small. But the disclosure of Figure 7 is talking
`about the 2-D image here for Figure 7, which the board can see because in
`the lower left corner there's the X and Y axis which indicates two
`dimensions and the 3-D tooth model, as the board can see in the lower left
`corner of that rectangle is a three-dimensional standard figure. I mean, I
`think we have all seen them because we all have science backgrounds.
`And so this is a disclosure of having a two-dimensional image, a
`three-dimensional tooth model and the disclosure here that's very difficult to
`read is talking about how you can click apply and the 3-D tooth model are
`arranged together.
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`So this is an automated version. So what you do is you'd click apply,
`and the 3-D model would be moved over and automatically put into place so
`that it would make sense looking at the patient's mouth.
`If we go to slide 11, it also teaches, it being Sachdeva, that the
`alignment may be done by human interaction. So rather than it
`automatically saying okay, this is where the -- this part of the mouth should
`be and this is where it is on the patient, you allow a user to kind of drag it
`around and align it by hand.
`If we go to slide 12, this is Figure 28, which is showing an x-ray of
`the 3-D tooth model and also the x-ray and you can see that -- you can see
`both of them.
`If the board looks at Sachdeva column 28 and 29, where it's talking
`about this Figure 28, it refers to the treatment planning -- this is at column
`28 line 59 -- the treatment planning process continues by using the graphical
`user interface to align two-dimensional images of the patient e.g. x-rays,
`with three-dimensional virtual teeth models, okay, and it talks about an icon
`where you can say automatically align it, and it goes on to note in column 29
`beginning at line 11 the 3-D tooth models are scaled so that they can
`coincide in size with the size of the teeth in the 2-D image. The super
`position is shown in Figure 28 to be either performed manually or possibly
`automatically with suitable pattern matching.
`So, again, you know, the 2-D image being arranged either by hand or
`automatically or, excuse me, a 3-D tooth model being arranged
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`automatically or manually with a 2-D image, which could be an x-ray. It
`doesn't have to be an x-ray.
`We go to slide -- I think this is 13 next. This is further disclosure of
`the fact that it's showing a 2-D image as -- of the face as -- well, let me be
`clear. Sachdeva surely discloses a 3-D patient model -- a 3-D face and a 3-D
`tooth.
`
`That's not the question here. The question is does it also disclose 2-
`D. Just talked about how it disclosed 2-D with respect to Figure 28. Here
`are more examples. Two-dimensional and/or three-dimensional virtual
`patient model.
`It says it can be two-dimensional in the abstract -- 3-D image data
`and/or 2-D image data. And then there's references to morphable face model
`without saying whether it's 2-D or 3-D and it can be either, according to
`Sachdeva itself.
`Now, in the demonstratives at least and in some of the briefing
`there's a slide that says well, the 2-D image could be transferred to a surface
`in three dimensions. So you're looking at a 2-D image based on a three-
`dimensional representation.
`That is true, and the claim wouldn't cover that, we conceded. But
`Dr. Mundy addresses this in Exhibit 1002, his expert report, at paragraphs
`572 to 580 with no response from the Patent Owner, and what Dr. Mundy
`explains is that to the extent that you would say the 2-D image could be
`stored in 3-D it would be obvious because the universe of possibilities is
`limited.
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`There's 2-D. There's 3-D. There's not 1-D and 4-D. Possibilities of
`two. It's entirely predictable the advantages and disadvantages and therefore
`it would be obvious, and there's no response to that from the Patent Owner.
`If we go to slide 14. This is, again, just another example of showing
`2-D as opposed to 3-D in Figure 7, slide 14. If we go to 15, this is the
`unremarkable notion that the kind of universal three-dimensional indicator is
`in fact the three-dimensional indicator. Their expert, Dr. Saber, admitted it
`although I don't think we really need that. I think it's pretty obvious -- a
`three-dimensional and a two-dimensional indicator.
`If we could go to slide 16. Now, this is another part of what's in the
`record. So Sachdeva had an earlier patent and it confirms that the
`patient/face model can be two dimensional. It says, you know, less preferred
`embodiment two-dimensional data could be used, in which the two-
`dimensional data are overlapped.
`The claims actually refer to it being a two-dimensional reproduction
`of the face. So again, it's a two-dimensional representation, and Dr. Mundy
`confirms that it would be read consistently.
`Now, you might ask why didn't you then use the earlier Sachdeva as
`your reference, and the answer is because the second one is much fuller. It
`contains like a second half of a disclosure. So as the fuller disclosure is it
`fair game to look at the earlier Sachdeva?
`Sure, this is fact finding. The board can look at whatever it wants
`when it's interpreting Sachdeva, and if the board looks here the board will
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`find that it's plainly including -- not limited to but including two-
`dimensional representations, as Dr. Mundy confirmed.
`And in this regard I would reserve that -- I would observe that Dr.
`Mundy presented not just his opening declaration about also a responsive
`declaration with our reply brief there has been no attempt to impeach the
`reply declaration as a matter of fact finding.
`There was no cross-examination of Dr. Mundy and therefore nothing
`submitted to the board in that regard, and his reasoning is barely addressed
`in the briefing. And so to the extent that this is an evidentiary determination,
`really it's rather one sided.
`If we go to slide 17, the Patent Owner primarily relies on examples
`of 3-D disclosures. For example, a -- this says one such alterative is a 2-D
`virtual face -- a 3-D virtual face from a series of 2-D color photographs -- for
`example, for example, et cetera -- and again, it's not disputed that Sachdeva
`does disclose three-dimensional models made up from multiple two-
`dimensional photographs or made up from a 3-D face scanner or anything
`else. Really, the issue is does it also disclose two-dimensional models, and I
`respectfully submit it plainly does.
`If we go to slide 18, this is just confirmation that when Sachdeva
`says morphable model that's not an indication that it's somehow three-
`dimensional. Probably just means you can resize it, for example, and Dr.
`Saber, who is Patent Owner's expert, admitted that 2-D morphable models
`were known.
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`Dr. Mundy, in his second declaration, talks about it. He cites Lu,
`which talks about 2-D morphable models. And so when you see morphable
`model in the -- in the Sachdeva patent, you would assume it could be 2-D or
`3-D unless there's something that tells you it can't be, and quite the contrary,
`there are a number of disclosures which show that it is, in fact, two
`dimensional.
`So kind of to sum it up, Sachdeva says a two-dimensional model or a
`three-dimensional model. To the extent that one might think you convert the
`two-dimensional representation into a -- I think Dr. Mundy called it a planar
`three-dimensional image.
`So a three-dimensional representation with a plane in it. That may
`not be covered but it would be obvious to do it in two dimensions,
`particularly where there's a motivation to do so, for example, where you only
`have a color photograph, typically, which is what's happening in Wiedmann.
`It shows the 2-D photo because that's what was presumed only to be
`available.
`This brings out another interesting part of the comparison between
`Dr. Mundy and Dr. Saber. Dr. Mundy kind of goes through this, explains
`how two dimensional would be obvious based on Sachdeva, and Dr. Saber is
`really not in a position to respond and here's the difference, which is not
`contested in the briefing.
`Dr. Mundy went and he talked to experts in dental software and
`dentistry on how the software would be used and what you would have a
`desire to do and not to do. Dr. Saber did not. He has no experience in dental
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`restoration and Dr. Mundy, honestly, I don't think he did either. I am not
`positive but I don't think he did. But he went and got it.
`Dr. Saber didn't. So to the extent that he says well, it wouldn't be
`obvious to do something it's only because he's stuck his head in the sand
`about what someone who's designing software for dental restoration would
`know and do.
`So why don't we go to slide 19? This is the remain separate
`representations after being arranged. So, again, in Sachdeva, which is
`Exhibit 1005, it talks about allowing the user to position one with respect to
`the other. They have to be separate for you to move them around, and that's
`-- and it talks about superimposing them and moving them around while
`they are being superimposed.
`I mean, in column 29 that I just recited it talks about superimposition
`can be done manually or -- automatically or manually. Well, that means the
`superimposition cannot be combined representations because you're moving
`them relative to each other.
`If we could go to slide 20. This is more examples of a user moving
`them around. So in the institution decision this board said, we note that
`because you can move them around it provides automatic or interactive
`alignment. It implies that the data sets are not merged. Dr. Mundy agrees
`and I don't think that there's anything credible in response to that.
`If we go to slide 21. This is just more of the evidence in front of the
`board, including coming from Dr. Mundy's unrebutted responsive
`declaration. The first is simply that it wouldn't be merged and you wouldn't
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`infer that it would be merged. Even if they are merged later, the temporal
`limitation issue means that the limitation is still met.
`And in Exhibit 105, Figure 67, among others, the morphable model
`and the tooth model are shown as separate and Sachdeva at column nine
`lines 40 to 48 it talks about toggling back and forth between various views.
`And let's just kind of bring it back to earth a little bit.
`When somebody is using a software, you're not going to merge it.
`You're doing an interactive design. You can move it around. You can
`toggle back and forth between are you looking at it with a 2-D image of an
`x-ray, a 2-D image of the face, right.
`There is no reason why you would combine it in a way that you
`could no longer work on it. That's not common sense, frankly, and what
`would it gain you to do that? You can already look at them after you've
`aligned them.
`What do you gain by merging them? You certainly use more
`processing power I suppose to merge them. But what do you get? The
`answer is nothing. And so you -- frankly, you wouldn't do it.
`If we go to slide 22, again, there's no statement that the 2-D image
`and the 3-D model are merged. Dr. Mundy says you wouldn't, reading this,
`think that there's any reason why they would be merged. I'll talk about the
`combined composite language in a moment.
`But if we go to slide 23, there's a bunch of cases that say with a
`negative limitation, you don't -- you don't need to have a statement that their
`negative limitation is there. For example, if I have a patent on a car and I
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`can't teleport to the moon, you can't get a patent by saying a car that doesn't
`teleport to the moon. Oh, so you have cars in the prior art, but they don't say
`they can't teleport to the moon. I mean, it doesn't have to say it, and the case
`law is pretty clear on that.
`The response from the Patent Owner here is interesting. The first is
`that it's not a negative limitation because it remains separate isn't negative.
`But remains separate means not merged. It's a negative limitation. And
`again, if you're not merging them in Sachdeva, why would you say you're
`not merging them? It wouldn't make sense because you wouldn't ordinarily
`infer it.
`The second is that there is a rebuttable presumption on the negative
`limitations. Okay. There's no rebutting. It's not said, and there's no reason
`why you would -- you would actually merge it. The Patent Owner here
`points to the words composite, superimposing, and combined -- the fact that
`the prior art references used some of those words, and they say, well, see, it's
`composite -- that means they are merged. Or see, they are combined -- that
`means they are merged. So let's take them one at a time.
`If we go to slide 24. The ordinary definition of composite is made
`up of distinct components, which is to say remain separate representations.
`The response here in the sur-reply in interesting. The Patent Owner cites the
`second definition or third or a subsequent definition for composite that is for
`complex material, like you go to Home Depot and buy a composite board.
`That is plainly not how Sachdeva is using the word composite. Sachdeva is
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`using it in its ordinary sense, which is to say separate things that are put
`together.
`Superimposed also means that the morphable model and the tooth
`model remain separate. Dr. Saber said, well, registering them means they
`can still be separate. So registering them, which is how you make the
`composite or combine them, even Patent Owner's expert admits they can still
`be separate representation.
`The 336 patent, interestingly enough -- the Patent Owner's patent
`here -- also uses the word superimposed just like Sachdeva for what it says
`are separate representations. So the language in the -- rather than rebutting
`the patent itself confirms that there is no rebutting. The ordinary meaning of
`superimposed as it's used in the patent is that they are not merged, as Dr.
`Mundy again confirmed without an attempt at impeachment.
`If we go to slide 25. The word combined -- this is an interesting one
`because the 336 patent itself uses the word combined. You combine these
`things in a view. It's combined in view this way. It's used and combined the
`same way that the prior art is using the word combined. Saying combined
`does not mean irretrievably and irreparably merging two things together.
`Again, Dr. Mundy goes through and talks about what -- combined
`these in Sachdeva and, again, the reason that we are going into this is this is
`the only argument really that they are -- that Sachdeva somehow merges is
`the use of words like composite and combined.
`If we could go to slide 26. This is maybe a little bit in the weeds but
`I wanted to make sure that I offered an explanation for the board. Figure 28,
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`which I talked about before, talks about arranging a three-dimensional tooth
`model with a two-dimensional, for example, x-ray, and Figure 28 looks a lot
`like an x-ray. And the Patent Owner cites a part that talks about how Figure
`28 shows two-dimensional for the occlusal plane while it's actually three
`dimensional in Figure 43. And the answer there is Figure 28 is showing the
`two-dimensional occlusal plane, and 43, if we go to slide 27, is actually the
`tooth model, which is 3-D. So the occlusal plane is in the tooth model,
`which is 3-D, and it's also in the face model which is 2-D. It's not a 2-D is
`3-D. It's a 2-D and 3-D.
`So if we sum it up, kind of start with common sense. Why would
`somebody merge these things together? Nobody offers an explanation for it,
`and there is none. I mean, there's no reason in the prior art to merge it
`together. The figures show two dimensional. The abstract and patent refers
`to two dimensional. An earlier Sachdeva description actually claims two-
`dimensional patient image models, and kind of the ordinary course, as we
`see in Wiedmann, is to have something that's two dimensional. So we
`respectfully submit that -- and there's always the temporal limitation thing.
`So I respectfully submit that Sachdeva does disclose two-
`dimensional face image and that it remains separate.
`If we go to slide 28, we are on to the virtual cutting of teeth, and this
`kind of shows that the teeth have been cut and that you're about to move the
`tooth model into the face model to see what it looks like.
`And the response that the Patent Owner provides is, well, the eyes
`aren't there either. So that doesn't mean that the teeth were cut out. I don't
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`know why the eyes aren't there. Maybe for the same reason that the strands
`of hair aren't there. This isn't a patent about the eyes. But the lips and the
`teeth are there, and if the board looks at Figure 22, it does show the teeth in
`there when the teeth are in there.
`And I note that Figure 22 is an image of the patient. That's not what
`happens after you've registered the tooth model. This is an image of the
`patient, and it's also what somebody of ordinary skill would expect when
`one looks, for example, at Wiedmann, which is plainly a two-dimensional
`picture.
`We go to slide 29. This is just further confirmation that there is
`virtual cutting, allowing the user to hide one or more image data, hiding and
`displaying various aspects of the virtual patient model, the ability to see
`transparently.
`I mean, it's relatively full disclosure of transparency or rendering
`something transparent either completely or partially. If we look at slide 30,
`this is Figure 28, and something interesting is happening on this one
`particularly in response to the sur-reply.
`They say, well, rendering a claim construction that wasn't requested,
`frankly -- when they say rendering something partly or wholly transparent
`means taking an affirmative step beyond just showing it. So the Patent
`Owner says well, you've got an x-ray and it's already transparent so you
`don't have to render it transparent because it's already transparent and
`therefore the limitation is not met.
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`A few responses to that, that wouldn't be true for the other images, of
`course. But it also confuses a physical x-ray with a digital representation of
`an x-ray. You can have additional representation of an x-ray. If you put a
`tooth model up, if it's not rendered transparent, at least partially transparent
`by the software, you can't see through it. Sure, a physical slide, maybe. But
`digitally, no, that's not the case.
`So you have to do something to allow someone to see what's shown
`in Figure 28, which is you can see both the x-ray image and the 3-D tooth
`model.
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`Why don't we go to slide 31? These are the defendant claims six to
`eight. I just wanted to make some comments here. I was a little surprised. I
`guess we will hear argument on it today. Claims six to eight were not
`addressed in the sur-reply. So we have a response from the Petitioner in the
`reply including material from Dr. Mundy. No response in the sur-reply.
`I want to talk about something, though, that I expect will come up
`and that's in claim six where it talks about -- well, okay. So there's a -- claim
`six has a pre-restoration model and a prepared model.
`So pre-restoration means in the patient's mouth as it exists. Prepared
`means you've prepared it to receive a restoration because, you know, a lot of
`times you've shaped the tooth so that it can properly have something
`attached to it.
`And claim six says where the first and the second 3-D virtual models
`are aligned, to which the patent
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