Testing 1, 2, 3, testing 1, 2, 3. We have five cases on our calendar this morning. Our usual diverse mix. Two pattern cases. Both involving automobiles. Contract case from the Court of Federal claims. Government employee case. And a veterans appeal from the Court of Appeals for Veterans claims. Which will not be argued if being submitted on the briefs. So our first case is auto technology versus just about everyone. The MW at 061013. Mr. Good Organized here, or all this paper, Mr. Baniak. Good morning. I want to address a warning today. Do you have a description of issues? An able-to-missue? An on-the-cars, I have a call of issues with respect to the Grand Partial Summit. And as for CKs, issue that great raises as far as the denial of its motion. I'm going to say that score
. There is a little use of discretion by the trial court with regard to that motion based on intel case, which we think is controlling, as well as on the material issues of fact that were presented with regard to that so-called cross appeal, which we don't believe is a cross appeal. Turning now to the written description. This case is not a gentry gallery. We do not have a situation in this instance where this was the only possible location for these sensors to set forth in the pattern and to set forth in the intrinsic record. It was not absolutely unambiguous on this point when you look at the specification. Let me just ask you about that point. If we were hypothetically to construe the spec as requiring a sensor on the side door, is there a way to construe the claim to save the pattern and the written description issue? With respect to construing it on the side door, yes, I suppose you could save the pattern, but in those terms, if you said it is to be so limited to just the side door. You only suppose? Well, Your Honor, I don't think that that is a proper construction. I go to the at least one of the aspects, and I believe this district court was incorrect in what it said and how it construed at least one of the cases. It is not the situation that was presented in the super-guy case. We here see in the intrinsic record very, very clearly that the applicants define what it meant, what they meant. When they said at least one of it was in the alternative, it was either four, and that is what they said in the same way. As I understand the other side, does not disagree with you. The only difference is that they are saying that therefore it feels on WD because the spec requires that it be on the side door, and it does not allow for one sensor that is not one sensor that is between the wheels but not on the side door. Am I at least under see any what you understand the play here to be between the party? Yes, Your Honor, I think the joint defendants do agree with us on that particular point, but that is where the district court went wrong. That is where the district court failed to appreciate the part of the specification, which specifically set forth that these sensors operate independently. I do not know if the court appreciated the fact that being set up in parallel and shown at a student or your four in a related text indicated and set forth in the text, any one of those sensors. But look, what would be actually, what would be set up in the back? The claim says at least one of a side door and a side, side between the centers of the front and rear wheels
. And isn't that supported at column three, line 44 at aisle, etc. at sec, which says to ensure the effectiveness of setting sensing it is reasonable that more than one sensor be used. For example, one would be located just before the A pillar and one before the B pillar, which is between the wheels. And spec also says there must be, it is essential that there be a side door structure, a sensor in the side door structure. Isn't that supportive of the claim construction that I just read off? Yes, Your Honor, I just supported that, but it's not alternative of that particular construction. If you look further at the objects of the invention, for example, and then you go into the detailed specification, what you see there is that is a one, as one preferred way to do it, putting three sensors in there. And the objects of the invention, the inventors call out that you can have two sensors, not three, but two sensors as one objective. And they don't say where those sensors are necessarily located. You could be at the A pillar, you could be on the C pillar in those cases. What's key here to us, what's key here is that even though the word essential was used in the context of the background of the invention in regard to these crash sensors, there is an embodiment. There is an embodiment set forth in here where a single sensor, a single sensor will activate this mechanism. And that's where we get to the claim language. And where is that sensor? That says there can be in any one of those three locations, which are exemplary or anywhere. And that doesn't have to be one in the side door? No, it does not have to be one side door. This specification is a mess, then. Well, your Honor, unfortunately, we are dealing here with a legal instrument and legal writing is so far as a patent is concerned. Is considered to be one of the most difficult gestures. I know I used to do it
. But it's not that difficult when you use claim language using the word essential. Why doesn't that characterize all the interpretation of the claims? Because. And my interpretation, in fact, would support your position, which somehow you're pulling away from. No, I'm pulling away from the position at all, Your Honor. I'm saying this specification does not require that a sensor must be located in the door in order to meet the limitations of these claims. That is because we set more than example of where it isn't necessarily located in the door. And because, then we come back to the issue of essential here in the moment. And because the applicants set in the final contemporaneous file history, our concept is broader, broader than just locating it in the door. Because we're dealing with physics and we're dealing with common sense. Now, the words we should ignore the sentence, which says the opposite. No, I don't think we should. However, the case law would support if there's inconsistency here, then we can't be clearly unambiguous. It is not clear disavowed. Does the claim require? Does the claim require that the sensor be mounted at all? Yes, and there is a means for. What does it say? Means for. Mountain. That's correct, Your Honor. There is a means for
. So there has to be a means for mountain. Correct. And therefore, it is a placed amount that prevents the applicants call out. These are the places where it can be mounted. And again, file history makes very clear what the applicant has intended. By the use of that language, they did not want to be unduly restricted back to the issue of the document. Where's the example of one sensor not in the door? You look at figure four, Your Honor, and it shows a number of sensors. And then you go in the rear-wheel rate and text. You look at figure four, but that shows in both locations. So it does. There's two of them around the door and one's on the side panel. That's correct. That's, is that one sensor not in the door? That sensor is shown in the door. We need to look at the related text. And the related text doesn't say that that sensor must be located in the door. This is for a related text. I'm sorry, the related text is located in the specification at Cal-Late lines beginning at run line 18. Or it says these places for these three sensors when trigger, inter crash, any one of those sensors going off
. Any one of those sensors will do the job, not the one in the door. And we go back to the use of this word essential. Which, I'm sorry, I can't hang a hard time. I'm on column 8. And I'm having a hard time finding what you just characterized. These locations include the center. All the door, plus and front of the other, and just behind, is shown in the figure. These three sensors are electrically wired in parallel. The any of these three sensors triggers an inside crash, then the protection apparatus gives an issue. Well, that tells what happens. That isn't contrary to the statement that it is essential that one of them be in the side. And that's where the district court, I think, had the flavor and the understanding of what the applicants were talking about in the background of the invention. When they asked opposing counsel, isn't this a situation where we have to look at what was being said in the context of column 4? Let me ask you about electronic sensors. There's no question there's a written description of that. But is this enabled? You just pull it off the shelf and put it in and everyone knows where an electronic sensor is. Or recognizing that there's a lot of written description here, a lot of enablement material on mechanically. So, the mechanical sensor shouldn't, they have been an equivalent or at least more disclosure regarding the electronic sensor. First, we look at the case law
. The case law, I think, here is controlling you with regard to spectral physics and the vitrochets. Spectrophysics, it's very clear. If I am in one, one, and body of this means, then I have met the scope of the invention. We enable one in body without question admittedly, and that's the mechanical sense. Is that a concession that for the enablement disclosure, for the electronic sensor disclosure to be enabling, then needed to be more? No, no, it's not. Because we submitted evidence, and this is all on summary judgment, unless you remember. So, the judgment was granted on written description, some judgment was granted on enablement. So, we are dealing here with material issues of fact that have to be addressed. Not just the question of, is it the law, I think the law prevails in this particular instance for ETI? Why is this obvious in light of marsh? It is in obvious in light of marsh, in honor of the cause. 1927, you have an explicit reference to site impacts. And what happens is 1927, you are right, nothing, nothing in the way of this kind of invention. Even the Schmidt reference, it comes up, it comes about in 1966. Nothing happens. Long felt lead is something that at least admitted evidence on it, the digstack narration is made before the court. Long felt lead and the commercial success of these inventions. It was totally unrecognized what marsh did. Marsh did not in any way represent the obvious way to do this. Marsh is located at the bottom of the car, for example, and marsh is under attack
. It drops the curtain, the chain curtain to protect against clash shattering, but other than that difference, we got something doing exactly the same thing, or something very close to the same thing. No, not at all. What's the difference? The difference is that first of all, we have a rotation in the claims of direct computing, a housing that goes around us. That housing also operates and cooperates with particular inertial accelerator that we're dealing with. Why is that? It's incredibly obvious. I mean, to put a housing around it, to make the detection system easily mounted and easily cared for. It was the record before the court showed that it wasn't because of the obvious to do that. That's why the court denied some of your judgment with respect to obviousness. Did I miss something or was obvious, not decided and not appealed? It's not even that appealed. It's a due to the risk of turning us into a due to the question. That issue, these are before us in this case, but I want to give you a response to what you said in the runner. If we affirm on an ablment, we have some claims that are still left on the written description. We have to reach the written description issue. No, I think if you affirm on an ablment, then we also have an affirmist required written description in this case. We have written description, that's what I'm saying. No, no, I'm saying affirming the district court. In other words, you lose the patent based on an ablment. No
. If we affirm the district court, in other words, claims that are alleged are not enabled. Do we have to reach the written description? I tried to line up which claims were an issue on which issue. It seems like there might be a few that are still open on WD, even if we affirm on an ablment, but I'm not entirely clear. I don't believe that that's the case yet. I think that affirmants might be around and up with these claims all going down. But again, we're still dealing with a question here that is related to what's standing on the headline. What material issues of fact are presented to the district court, what is the district court, then do with those material issues of fact. Mr. Van Jaek, my sense of it does tell me, it's not on the side, but it's in front of me. It tells me that you're into your ablment, we'll save you a full three minutes. Mr. Gallo, you are sharing time and you're going to take 12 minutes. When you're red light goes on, you're trading on your friend there. I will stop. Please report Kenny Elif for the joint defendants, Delphine, GM, State of Differently. I'm speaking on behalf of Elif, everyone other than CalSonic and Nissan. I will address the two arguments, the written description and the enabled. How can this be a written description problem when you've got figure four showing a side panel sensor when you've got column five describing a combination with one sensor on the door and column eight again describing multiple locations
. And there's description all over the place and it's obvious to one of skill in the art where you might put these things even when they're pictured. And then word time goes along and says as well, use a flexible approach to this. Why aren't you using obvious, which is obvious, which is where this thing ought to be invalidated? Let me respond. And I first will wire. Now, you've got a lot to respond to there about six things. But I think I can respond to what you're on. First, we did argue, obviously, this is in the lower court and the district court, according to my recollection, came very close to invalidating on obviousness and did not invalidate because of the question. And whether housing was obvious, obviously we disagree with that. We didn't try to appeal that ruling because we want on written description and we want on the lack of an element. Now, why isn't it that we're, that it's not described? I would make three points. You're on. We started with the proposition that the language could not be more unequivocal. The language here is stronger than the language of gentry gallery. When the claim, when the specification says, it must be in the door, must, to be effective and being in the door is essential. Figure four does not change that. The district court specifically addressed the figure four point. And the district court said, well, there's nothing said. It says nothing, nothing of a single independent censor
. The description of figure four is three censors. And it appears in the end. In the entry gallery, you didn't have a picture showing the embodiment which is loaded-cated somewhere other than in the door. But the textual language that accompanies that picture explains that there are three censors. Is that the columning line 16 to 21? Yes, but as Mr. Baniath pointed out, that paragraph that you're referring to concludes if any one of these three censors triggers. Which doesn't mean you're on. And it talks about the locations include it's talking about any of the locations. It says one located in the door plus another in the A pillar and another behind the B pillar. It talks about them conjunctively, not independently. And then your honor, Joseph Russell, when it says that if any one of them they can trigger independently. That doesn't go to the question of whether one located in the door is essential. In other words, the fact that the one in the A pillar can trigger independently, or the one in the B pillar can trigger independently, doesn't mean that the one in the door isn't still an essential device. And here's, I think, the most important point. While assuming it's an essential device, the claim permits at least one in the side door, that's essential. And also from the side between the centers of the wheels. And why isn't that supported by this specification at column three? Because your honor specifically says that the one in the door is essential, the claim constructions at ATI ask for and receive, said capable of in the door and at locations along the side. And so it still is essential that it be in the door. So the second half of that claim constructions. It doesn't say essential it says to be effective. You're talking about, but you don't have to have an effective invention. Do you? You can have an invention that may not even be effective. So even on, even if we overreade the one statement that you're placing your whole appeal on, the fact that they said must instead of should or something, even that is further amended by the effectiveness language, which is an essential for inventiveness at all. It says to think your honor, it must be in the door and it is essential that being in the door. It has both of those. Otherwise, it doesn't satisfy 101. Exactly, your honor. And if I just, there's one very important point here that I need to make about the question of how you read figure four together with the essential and the muscle language, which is that the expert opinion that was put in by the by ATI in this case, did not even attempt to reconcile a figure four with the muscle and the essential language. In other words, one skilled in the art, Dr. Dix came in and he said to the district court, look at figure four. But what the district court said was, can speculously absent from Dr. Dix opinion, his opinion, his affidavit, was any attempt to reconcile figure four with the language which says it must and it is essential. So the the ATI did not create a genuine issue of fact in the lower court. In other words, they had the opportunity to bring in someone skilled in the art and say, I can read figure four consistently with the essential and the muscle language. And they did not do that and it was proper for the district court in light of the muscle language and the essential language, which it is hard to imagine how you could use more unequivocal terms than essential and cost. And then in the absence of any affidavit of one skilled in the art that actually attempted to reconcile those decisions
. So the second half of that claim constructions. It doesn't say essential it says to be effective. You're talking about, but you don't have to have an effective invention. Do you? You can have an invention that may not even be effective. So even on, even if we overreade the one statement that you're placing your whole appeal on, the fact that they said must instead of should or something, even that is further amended by the effectiveness language, which is an essential for inventiveness at all. It says to think your honor, it must be in the door and it is essential that being in the door. It has both of those. Otherwise, it doesn't satisfy 101. Exactly, your honor. And if I just, there's one very important point here that I need to make about the question of how you read figure four together with the essential and the muscle language, which is that the expert opinion that was put in by the by ATI in this case, did not even attempt to reconcile a figure four with the muscle and the essential language. In other words, one skilled in the art, Dr. Dix came in and he said to the district court, look at figure four. But what the district court said was, can speculously absent from Dr. Dix opinion, his opinion, his affidavit, was any attempt to reconcile figure four with the language which says it must and it is essential. So the the ATI did not create a genuine issue of fact in the lower court. In other words, they had the opportunity to bring in someone skilled in the art and say, I can read figure four consistently with the essential and the muscle language. And they did not do that and it was proper for the district court in light of the muscle language and the essential language, which it is hard to imagine how you could use more unequivocal terms than essential and cost. And then in the absence of any affidavit of one skilled in the art that actually attempted to reconcile those decisions. The claim itself only requires that it be capable of being mounted. Why are we spending so much energy here on where they're actually located? Location language isn't even in the claim, is it? I don't believe that our argument written description requires the court to conclude that it must actually be mounted. I think the issue of actual mounting. Just says capable of being mounted. So there's no mounting requirement at all, is there? Well, for the written description argument, the point I want to make is that we were arrest on the claim construction, capable of being mounted and we say that it is not. There's not claiming a housing and a feature. They're not claiming where it's mounted, are they? And yet you're saying that's what embaled H the claim. It's kind of a stretch, right? Well, isn't location key here? Sure. Any sense of it is capable as long as it has a frame or a flange and a hole for a screw. Right, right. Which is why it's probably obvious, but it's not a question of location having anything to do with the claim, is it? It's just capable of being located. There's two things. The claim is construed by the court said capable of being mounted in the door or between the centers of it. The judge later said it also requires actual mounting. And I don't hear Mr. Vanneak to be disputing that fact. So you're on our, I don't think it is true to say that it is just an academic question of whether it's capable of being mounted. What about the electronic sensor? Yes, sir
. The claim itself only requires that it be capable of being mounted. Why are we spending so much energy here on where they're actually located? Location language isn't even in the claim, is it? I don't believe that our argument written description requires the court to conclude that it must actually be mounted. I think the issue of actual mounting. Just says capable of being mounted. So there's no mounting requirement at all, is there? Well, for the written description argument, the point I want to make is that we were arrest on the claim construction, capable of being mounted and we say that it is not. There's not claiming a housing and a feature. They're not claiming where it's mounted, are they? And yet you're saying that's what embaled H the claim. It's kind of a stretch, right? Well, isn't location key here? Sure. Any sense of it is capable as long as it has a frame or a flange and a hole for a screw. Right, right. Which is why it's probably obvious, but it's not a question of location having anything to do with the claim, is it? It's just capable of being located. There's two things. The claim is construed by the court said capable of being mounted in the door or between the centers of it. The judge later said it also requires actual mounting. And I don't hear Mr. Vanneak to be disputing that fact. So you're on our, I don't think it is true to say that it is just an academic question of whether it's capable of being mounted. What about the electronic sensor? Yes, sir. Thank you all. Move it. Is that off the shelf? Is that in the real enablement description? No, it absolutely needs real enablement description. And once again, I go to the record at some redudging. And the fact that there was no evidence put into the record by ATI to suggest that it was routine and then one skill in the art could use something on it. Well, you have a figure 10, don't you? What is that? Figure 10 is that response for it. Electronic art, be able to look at that response curve and say, that's easy. Let me tell you what the lower court record is on that. Dr. Hensler, who was our expert, put in an affidavit that said to try to program and to create an algorithm in a computer program in order to process that signal would require digital processing and a great deal of experimentation. That there was nothing available on the market that could do that and it would take an enormous amount of time. There was no response on figure 10 from ATI's expert. So the district court was submitted with uncontested facts on figure 10. Here on it, there's no disputed record on figure 10 and a lower court. But more generally in response to Judge Larry's question, the records that are expert Dr. Hensler put in a detailed affidavit that would refer to the court to paragraphs 10 to 19 of his declaration, which went through in considerable detail. I've got 12 minutes, so I'm not going to waste time. I'm not going to waste time
. Thank you all. Move it. Is that off the shelf? Is that in the real enablement description? No, it absolutely needs real enablement description. And once again, I go to the record at some redudging. And the fact that there was no evidence put into the record by ATI to suggest that it was routine and then one skill in the art could use something on it. Well, you have a figure 10, don't you? What is that? Figure 10 is that response for it. Electronic art, be able to look at that response curve and say, that's easy. Let me tell you what the lower court record is on that. Dr. Hensler, who was our expert, put in an affidavit that said to try to program and to create an algorithm in a computer program in order to process that signal would require digital processing and a great deal of experimentation. That there was nothing available on the market that could do that and it would take an enormous amount of time. There was no response on figure 10 from ATI's expert. So the district court was submitted with uncontested facts on figure 10. Here on it, there's no disputed record on figure 10 and a lower court. But more generally in response to Judge Larry's question, the records that are expert Dr. Hensler put in a detailed affidavit that would refer to the court to paragraphs 10 to 19 of his declaration, which went through in considerable detail. I've got 12 minutes, so I'm not going to waste time. I'm not going to waste time. But the detailed explanation of exactly the fact that digital programming that would be required would exceed the capabilities of one skilled in the art. Then would take an enormous amount of time that they'd off the shelf censors that were available would not be able to process this signal. In response, there was a very conclusive statement from Dr. Dex, the ATI expert, which did not contest the essential underlying facts. There was a conclusion by Dr. Dex. But he didn't address the very specific points made in the Hexler affidavit. So again, the district court was confronted with a situation where there was no material facts and dispute about the question of whether it would require undue experimentation in the district court to set in essence. Dr. Dex doesn't even characterize the nature of the work that would be required. And if we agree with you on enablement, are there any reason to reach the written description? I don't believe there is your honor. I will say a candor to the court, the record is less than clear on that. The record could be read to say that an enablement doesn't cover claim 29. But I heard Mr. Baniak to say that that's not his position and the record is less than clear on that. We believe if you reach a firm on either enablement or the description, the entire case goes out. But there was an open question about claim 29 in respect to enablement. The record is not terrible clear on that
. But the detailed explanation of exactly the fact that digital programming that would be required would exceed the capabilities of one skilled in the art. Then would take an enormous amount of time that they'd off the shelf censors that were available would not be able to process this signal. In response, there was a very conclusive statement from Dr. Dex, the ATI expert, which did not contest the essential underlying facts. There was a conclusion by Dr. Dex. But he didn't address the very specific points made in the Hexler affidavit. So again, the district court was confronted with a situation where there was no material facts and dispute about the question of whether it would require undue experimentation in the district court to set in essence. Dr. Dex doesn't even characterize the nature of the work that would be required. And if we agree with you on enablement, are there any reason to reach the written description? I don't believe there is your honor. I will say a candor to the court, the record is less than clear on that. The record could be read to say that an enablement doesn't cover claim 29. But I heard Mr. Baniak to say that that's not his position and the record is less than clear on that. We believe if you reach a firm on either enablement or the description, the entire case goes out. But there was an open question about claim 29 in respect to enablement. The record is not terrible clear on that. On an enablement, you're on a point, I will direct the court's attention to. Of course, as the case is coincided, the Kairan case, the AK steel case, the recently decided a lot of flourishing on the case. And what about in Betrogen, which is the case that Mr. Baniak needs to be launched? I just don't think it's to the contrary. I think we are arguing for a very simple proposition of law, which is an optics claim why Betrogen is not to the contrary, which is cited in all the cases I just identified, which is you have to enable a full-spoken acclaims. In this case, ATI saw a construction that included an electronic sensor. They got that construction. In Betrogen, it isn't contrary to that. In Betrogen, it just says you don't have to enable every method of practicing the full-spoken acclaims. In Betrogen, the full-spoken acclaim is limited to genetic engineering, genetically engineered ROT, and genetically engineered ROT was, in fact, enabled. We didn't have this sort of multiple scopes of the claim that we have here, both in Canada and all of our trunks. Thank you. Thank you, Mr. Galon, Mr. Philhoes. Morning, Your Honours, John Philhoes for the Cross of Palomac, Nissan North America and Calcina, can't sign. First of all, I'd like to say that we certainly agree that Mr. Galon that the claims are invalid for lack of written description and for lack of information
. On an enablement, you're on a point, I will direct the court's attention to. Of course, as the case is coincided, the Kairan case, the AK steel case, the recently decided a lot of flourishing on the case. And what about in Betrogen, which is the case that Mr. Baniak needs to be launched? I just don't think it's to the contrary. I think we are arguing for a very simple proposition of law, which is an optics claim why Betrogen is not to the contrary, which is cited in all the cases I just identified, which is you have to enable a full-spoken acclaims. In this case, ATI saw a construction that included an electronic sensor. They got that construction. In Betrogen, it isn't contrary to that. In Betrogen, it just says you don't have to enable every method of practicing the full-spoken acclaims. In Betrogen, the full-spoken acclaim is limited to genetic engineering, genetically engineered ROT, and genetically engineered ROT was, in fact, enabled. We didn't have this sort of multiple scopes of the claim that we have here, both in Canada and all of our trunks. Thank you. Thank you, Mr. Galon, Mr. Philhoes. Morning, Your Honours, John Philhoes for the Cross of Palomac, Nissan North America and Calcina, can't sign. First of all, I'd like to say that we certainly agree that Mr. Galon that the claims are invalid for lack of written description and for lack of information. And they enable that our issue relates to non-infringement. The claims were construed by the District Court, consistently, the Super-Body case. Well, you had a motion for some re-judgment that was denied. Yes, Your Honour. Now, normally, the case goes on, but he has patents for invalidated. Is this the final judgment? I just want to find a judgment, Your Honour. Your motion was left, was it held to be moot? Our motion was denied, Your Honour. It was denied. Yes, Your Honour. Which means, in case theoretically, could have gone on. But is that nullified by the holding of invalidated invillinity? Which, in effect, moot? If a firm, we render our motion across the field moot, you all right? We understand from the typewriter case, Your Honour, that our position should either be taken as a alternative grounds to affirm the judgment below or possibly as a cross appeal. But as Judge Laurie mentioned, your case is still alive. I mean, assuming we were to reverse on the validity grounds, you're all you've been denied as some re-judgment of non-infringement. Are you going to go on to a trial? That's correct, Your Honour. I'm going to bring the typewriter case, that same position was taken as an alternative grounds to support the judgment below. The reason that we cast our appeals across appeal is because our non-infringement case does not relate to all of the defendants. And therefore, if you reverse the district court as to non-infringement for an East Side North American and Calcina campsite, the judgment below would then be modified. So we understand that our position should be accepted either as I say, an alternative grounds to support the judgment or as they cross appeal
. And they enable that our issue relates to non-infringement. The claims were construed by the District Court, consistently, the Super-Body case. Well, you had a motion for some re-judgment that was denied. Yes, Your Honour. Now, normally, the case goes on, but he has patents for invalidated. Is this the final judgment? I just want to find a judgment, Your Honour. Your motion was left, was it held to be moot? Our motion was denied, Your Honour. It was denied. Yes, Your Honour. Which means, in case theoretically, could have gone on. But is that nullified by the holding of invalidated invillinity? Which, in effect, moot? If a firm, we render our motion across the field moot, you all right? We understand from the typewriter case, Your Honour, that our position should either be taken as a alternative grounds to affirm the judgment below or possibly as a cross appeal. But as Judge Laurie mentioned, your case is still alive. I mean, assuming we were to reverse on the validity grounds, you're all you've been denied as some re-judgment of non-infringement. Are you going to go on to a trial? That's correct, Your Honour. I'm going to bring the typewriter case, that same position was taken as an alternative grounds to support the judgment below. The reason that we cast our appeals across appeal is because our non-infringement case does not relate to all of the defendants. And therefore, if you reverse the district court as to non-infringement for an East Side North American and Calcina campsite, the judgment below would then be modified. So we understand that our position should be accepted either as I say, an alternative grounds to support the judgment or as they cross appeal. And that's what we're here. But the typewriter case, I think, supports our position. And as I was saying, the basis of our position is that the district court required that the censor housing became able to be mounted both in the side of the vehicle and in the door. Calcina campsite sells censors exclusively to Nissan. Nissan uses some of those censors inside impact sensing systems. Nissan vehicles never have a censor in the door. Nissan vehicles have no position to mount such a censor in the door. The Nissan system doesn't work with the censor in the door. Therefore, our position is that work consistent with patent, that is to say, we are in consistent with a patent that requires a censor in the door. The district court misapplied the case law of this court, including the high-tech medical case and the striker V-dab all case. The district court denied our motion because ATI had an expert, modifier your drill holes in the doors. How a censor could be positioned and that is incorrect, according to the case law. Thank you, Mr. Hillhouse. Mr. Bannyak has three minutes of rebuttal. Briefly with respect to Mr. Bannyak's just said, as I said, the outset, until we control the striker, the case that he cites from the district court of that, and the view carefully does not indicate the contrary result to the denial of the motion in this particular instance
. And that's what we're here. But the typewriter case, I think, supports our position. And as I was saying, the basis of our position is that the district court required that the censor housing became able to be mounted both in the side of the vehicle and in the door. Calcina campsite sells censors exclusively to Nissan. Nissan uses some of those censors inside impact sensing systems. Nissan vehicles never have a censor in the door. Nissan vehicles have no position to mount such a censor in the door. The Nissan system doesn't work with the censor in the door. Therefore, our position is that work consistent with patent, that is to say, we are in consistent with a patent that requires a censor in the door. The district court misapplied the case law of this court, including the high-tech medical case and the striker V-dab all case. The district court denied our motion because ATI had an expert, modifier your drill holes in the doors. How a censor could be positioned and that is incorrect, according to the case law. Thank you, Mr. Hillhouse. Mr. Bannyak has three minutes of rebuttal. Briefly with respect to Mr. Bannyak's just said, as I said, the outset, until we control the striker, the case that he cites from the district court of that, and the view carefully does not indicate the contrary result to the denial of the motion in this particular instance. There was no modification in whatsoever to what is claimed and that he is the censor in the model. Looking at the enablement issue, is there any response to their expert's testimony that this would require undue experimentation? Absolutely, Your Honor, and I think the district court did not read Dixie's declaration fairly. That goes to my point, where some rejection of the decision has been weighing these two declarations, as you've been looking for issues of material fact. What do we see in the start of Hensers Declaration? He says that he begins by saying that an electronic censor may not have been available at the time. Dixie starts out saying they were available at the time, and here's how someone would easily, easily be named to adapt it. That is his declaration from start to finish. Hensler never tested any of these devices. He didn't even know whether they existed at the time. He looked at this from the standpoint of the commercial environment, which CFMT says that's not the situation here. I think the district court went into that. What we're also looking at is on that law itself, you cannot distinguish spectrophysics on the law itself. We described more means, right? That is sufficient for purposes of fulfilling the enablement required. You have to enable the entire scope of the claim if there is an electronic scope. Have you enabled it? There is an electronic scope, which we're dealing with only two dependent claims in this particular instance. Two depend. It doesn't matter how many claims there are, you have to enable the entire scope of the claim. One means you're out of here, we have enabled the scope of all of those claims. I'm thinking of saying it's argumentative
. There was no modification in whatsoever to what is claimed and that he is the censor in the model. Looking at the enablement issue, is there any response to their expert's testimony that this would require undue experimentation? Absolutely, Your Honor, and I think the district court did not read Dixie's declaration fairly. That goes to my point, where some rejection of the decision has been weighing these two declarations, as you've been looking for issues of material fact. What do we see in the start of Hensers Declaration? He says that he begins by saying that an electronic censor may not have been available at the time. Dixie starts out saying they were available at the time, and here's how someone would easily, easily be named to adapt it. That is his declaration from start to finish. Hensler never tested any of these devices. He didn't even know whether they existed at the time. He looked at this from the standpoint of the commercial environment, which CFMT says that's not the situation here. I think the district court went into that. What we're also looking at is on that law itself, you cannot distinguish spectrophysics on the law itself. We described more means, right? That is sufficient for purposes of fulfilling the enablement required. You have to enable the entire scope of the claim if there is an electronic scope. Have you enabled it? There is an electronic scope, which we're dealing with only two dependent claims in this particular instance. Two depend. It doesn't matter how many claims there are, you have to enable the entire scope of the claim. One means you're out of here, we have enabled the scope of all of those claims. I'm thinking of saying it's argumentative. You're enabling a species. You're enabling a species and claiming a genius. I'm claiming a broad claim and claim one, which encompasses many means. Electronics included. How have you enabled that? As you had Lurie's correct, you've enabled something broader than a single mechanical species covers. I don't think you can distinguish spectrophysics. We have enabled the full scope of claim one by disclosing one means. We just explained all that in libel-fushed fleshmen, didn't we? You did discuss that in that case, your honor. And I think libel-fushed fleshmen does support our position. For the very reasons that I'm saying it here, I will flesh and adult in the situation where you had this unclad version. An unclad version was in any way shaped before, disclosed in it. The means plus function is a very significant aspect of this case. We disclosed that. Going if I can continue what we did doubling. One sentence. One sentence. One key fully loaded sentence. I averaged the court
. To read carefully what's in the background of the invention and the context in which these sensors are being discussed. Because they're being discussed with regard to crushed sensors. They're being discussed with regard to sensors which are considered to be essential. Because that's one of the problems that was being faced by the applicants at the time. And it's clear I think when you get through that, that putting it in context, the word essential is not essential in the time to get it. Thank you Mr. Bernier. Case should be taken under advisement