The final case for argument this morning is 131445.card systems versus tax here in the district. I'm going to go on the other. Please the court. Paul Stewart of Canobean Martin for plaintiff and talent and grant card systems. We think with all due respect to the district court that this is that bottom a simple case. The disputed claim terms are two simple ordinary English words data and automatically. These words are not so ambiguous or vague that they deprived the claim of meaning and that card didn't use the specification to redefine. Well if they did data has no ordinary plain ordinary meaning outside of the context in which it's used, does it? Well the word data certainly does and the word related certainly does. Well that's true of every word. I mean every word you can look in a dictionary and there's some meaning but was there a conclusion that they really, even from the testimony of the experts here, that there was no really plain ordinary meaning to one's guess in the art of related data outside of the context in which it appears? No I think what the experts on both sides testified to was that related data had no specialized meaning within the field of art within the medical publishing technology's art
. But I don't believe that either expert testified that related data as a whole or broken down into its individual parts didn't have ordinary meaning. No go ahead no I'll go ahead. I'll go ahead and ask you. Well we do think that once the court should have looked at the ordinary meaning and saw that the specification didn't redefine or just the value ordinary meaning. That really should have been the end of the court's analysis. The court should have applied the ordinary meaning and at this court reiterated in the foreigner the patent is free to choose a broad term and expect to obtain the full scope of the plain ordinary meaning less the patent is explicitly redefined to the term or disavowals its full scope. Mr. Stewart are you familiar with cases like Edwards life sciences or bid for position from this court? No they talk about a theory called interchangeable use where maybe you have one buzz word in a claim and then you go back and look at the written description and it appears from reading the written description that that one buzz word is equated with the second buzz word. And they are used so consistently and interchangeably throughout the written description that one comes away with the view that the two buzz sets of buzz words mean the same thing. I don't think that's the case here what you have here is you have the phrase related medical image data used throughout the specification and in most instances and maybe all instances it was referring to an image
. And that was the phrase that was used in the parent case in the claim term and the parent case also specifically included the language stored in a standard medical imaging format to describe the related medical image data. And then you have the child case to continuation case where you now have the term related data which is used much less frequently in the specification and it omits specifically the phrase stored in the standard medical imaging format from the claim. So I think you've got a real contrast between those two terms not not interchangeability. Okay, it seems like when I saw the usage of the term related data throughout the specification when you read it in the context and you look at how it points to your flow charge in the diagrams and then talks about the PAPS storage system it all seems to be geared back towards and understanding that we're talking about images. Well, there certainly is a detailed description of searching for related images. There's no question about that. That's the embodiment discussed in the latest details and embodiment that is most difficult to implement. Can the data that for which it searches in that context is what's in the header that's part of the image, right? That's part of the data when there's a search for images. It's not just for images, but it's also for what's in the header. But our contention is that related data particularly with the phrase stored in the medical imaging format dropped from the claims related data is a broader term than under forner and eventus and Arlington industries and in Nova in other cases that it's entitled to the full scope of its ordinary meaning
. And then you do of course look for the specification for context and to see if there's going to disavow or dislamer and there simply hasn't been such a thing here. And we do think one of the district court's fundamental errors is that the district court didn't look to the ordinary meaning of the words related data at all. It simply went into the specification and gave no way to the word community. And it viewed the pants with suspicion because they are continuations. The court held page 15 of the appendix that it must give extra weight to the specification in the case of continuations. And we think that's that's simply unsupported by the sports case law. And the extra weight given by the district court we believe was extreme. We believe that the court essentially substituted the preferred embodiment in the specification for the ordinary meaning of the claim terms. And that's where the court said that it's going to grant patent protection that ends up with the patent to disclose and that the patent should get what it disclosed. Mr
. Stewart, tell me what's going on with dependent claim five, which obviously depends from claim one. And where it talks about where in the auditable trail of the selected medical image data includes a record of when the selected medical image data and the related medical image data were recorded onto the data storage medium. I mean candidly, I think that that was a drafting error where claim five from the original parent case referred to related medical image data and claim one from the parent case referred to related medical image data. And then when claim one of the continuation case was modified to specify related data claim five was just overlooked and the related medical image data language from claim five was updated. So what's the best thing to do and circumstances like this? Are you saying claim five is invalid indefinite or you saying claim five shouldn't be used as a way to claim five. So is that an attempt to understand claim one or I think claim five provides very little guidance in terms of understanding claim one because it's it's not telling you what the meaning of the phrase related data is. It's using a different phrase. And I was I was submit that it's a narrower phrase and without any antecedent basis without any antecedent basis. So it does suffer from a lack of antecedent basis. And if that means the claim five as a problem under section one, 12, then that may be the case
. Getting back to my argument now, the and the result of what the district court did when it when it substituted in our view the specification for the claims is as I mentioned it actually read into the claims of a limitation from the parent case. And we think it's very clear from our length of industries and from just basic principles of claim differentiation that that's an inappropriate approach to take to claim construction. And so under our case, well, I'm not sure. I don't think that anyone would dispute that the spat the specification written description is relevant and the claims have to be read in the context of the written description. Can you point us to anything in the written description that supports your view of what the claim me playing mind with me? Well, we do point in our briefs to the phrase the use of the phrase medical exam data and in column two related medical exam or searching medical exam data that are related. That's correct. That's what I'm referring to. And we think that is a broad disclosure of a search for related data that can be of any kind of data at all. But I also would refer the court back to cases such as Thorner where every attached piece was attached to the exterior of the device and wasn't embedded in the interior and still the court found based on a claim language. And the claims notwithstanding the individual examples given in the specification that the word attached was given its full or maybe not
. Or isn't this a little beyond just the examples of the description of the invention, the background of the invention summary of the invention, the name of the invention, everything deals with medical image data. All over that. So it's not just a matter of they talked about general stuff and then we have four examples when they all involve medical image data. This is everything that said in the written description is dealing with medical image data. Am I wrong about that? Most we were just referring to a phrase that we believe is broader than that. The rest of the specification does deal with medical image data. It was our position in the district court and we have not waved it on appeal that the phrase medical image data actually means data relating to medical images. It doesn't necessarily limited strictly to images. So is that an issue before us? I'm really supposed to do it. Is that something you briefed or? No, we have not briefed that, Dr
. Oder. Well, you're into your rebuttal. Okay. So I'll consider for a bottle. Thank you, Your Honor. Mr. Holdraugh. May I please the court? I think the court actually identified the issues here. The fill of the case sets out the standard here. It's not terribly comforting when district court opinion begins with reliance on a descent as opposed to a majority opinion, which is kind of what happened here
. What does a struggle is it not to get by what the kind of language that is included in many of our majority opinions? No, I don't think so. I think Judge Falzadir remarkable job in kind of discussing the types of analysis that's appropriate and doing. Do you think the hint for claim construction on the theme of you get what you disclose? Is that what Phillips calls for? No, I think she talked about the descent and you get what you disclose in the name of the game as a claim, but she relied on I think the belt landing case, which is the term there was a deal. The case holds that the ordinary meaning of the non technical term mode is sufficiently broad and amorphous that the scope of the claim language can be reconciled only with recourse to the written description. So is that your view here and was there testimony or whatever? I recall in your brief you described testimony to the various experts. It seems to be one of the key factors is whether enough there's agreement, there's clear and ordinary meaning to the term and your position is there's not. Correct, Your Honor. Both experts when asked about the meaning related data and the related terms confirm that there wasn't any real meaning in the art. That's where we're looking at. When skill in the art, when reading the specifications and written description how they would come up with it
. But just because it's not a technical term of art doesn't mean that it's not blindly clear what the terms mean. Data that's related to the selected medical image. It's what's not so hard about understanding that. Well, it's like a thing or stuff data. I mean, there's no information information, anything that's hard to understand. It can be, yeah, it's so amorphous and ambiguous you need to rely on the specification and that the written and that the file history in order to determine what it actually means. Well, the things that I think what you're saying is not that it's hard to understand but that it only has meaning in context. And the concern I'm having and maybe this is Judge Chen's problem as well is why can't we find that context to give it meaning in the claim language itself? Why do we necessarily have to go beyond that to the spec? Well, I don't think you need to read this fact and fill it in the context of the spec and the file history. Well, what about his one, but just as an aside, just to deter you a little bit. Your friend pointed at least to one mention in the spec
. Yeah, I think there's a reference to medical exam data which we would submit is also being used anonymously with image data. It clearly doesn't say diagnostic text reports which is what appellant is arguing is included in related data because there's nothing in specification. And it's on the spew to that there's anything in specification that mentions diagnostic text reports. But even exams, if you read the rest of the specification and you look at figure five, there's a flow chart that talks about exams and then right under it says related medical image data. So the concept that exam somehow means diagnostic text reports is clearly rebutted within the specification itself. Okay, so back to the point we were making which is even if we accept your view that the terms technical that related data is amorphous. There are amorphous, but in a context, you need to look at them in the context and why is not the appropriate context to look at them the claims themselves rather than reaching out to the spec if we can find a ordinary meaning to them in the context of the claims. We would submit the you can't find the ordinary meaning to them in the context of the claims both experts couldn't really identify an ordinary meaning to the terms and that's why you need to look at the specification. And if you look at the specification, the very first entry under the summary of invention of page 191 says the claim system allows for digital medical image data to be produced on portable portable digital recording medium such as a CD. That's the claim system. Go further. That's our own expert confirmed that there's nothing in the specification that suggests that the related data can mean anything. Is it your view that you need under our case law an explicit disclaimer or is it your view that you need an explicit disclaimer and if it is where is that explicit disclaimer. Our position is you don't need a specific disclaimer because the customary ordinary meaning of the term related data made by one skill in the art at the time of the invention in the context of the specification and the file history which what fill it will would be that related data necessarily means select the medical image data. So is that a lexocography argument or is that I don't even think you get to that I think you get to the lexocography and you get to the disavow if the definition of the definition of the data is the right. What the person who is going to the art would define it would be if you get that definition and you want to change it then you need lexocography and you need disavow. But here person who are in the skill and the art would define it as a selected medical image data. So you would need a clear disavow if you wanted to change that. So let me just make sure I understand you don't believe there was a disavow you don't believe there was a lexocography you believe there was something else here there was some contextual usage of the term related data that in your mind informs the understanding of it. It's hard for me to distinguish between lexocography and reading the claims in the context of the specification and the file history because they seem to merge
. Go further. That's our own expert confirmed that there's nothing in the specification that suggests that the related data can mean anything. Is it your view that you need under our case law an explicit disclaimer or is it your view that you need an explicit disclaimer and if it is where is that explicit disclaimer. Our position is you don't need a specific disclaimer because the customary ordinary meaning of the term related data made by one skill in the art at the time of the invention in the context of the specification and the file history which what fill it will would be that related data necessarily means select the medical image data. So is that a lexocography argument or is that I don't even think you get to that I think you get to the lexocography and you get to the disavow if the definition of the definition of the data is the right. What the person who is going to the art would define it would be if you get that definition and you want to change it then you need lexocography and you need disavow. But here person who are in the skill and the art would define it as a selected medical image data. So you would need a clear disavow if you wanted to change that. So let me just make sure I understand you don't believe there was a disavow you don't believe there was a lexocography you believe there was something else here there was some contextual usage of the term related data that in your mind informs the understanding of it. It's hard for me to distinguish between lexocography and reading the claims in the context of the specification and the file history because they seem to merge. So our position is that a person who are in the skill and the art when defining the claim related data in the context of specification and file history would conclude that it necessarily means select the medical image data. Are you based on the lexocography of the specification but it's the primary definition that would be resulting. Are you familiar with Edward's life sciences or bid for position? Are there any other real circuit cases? Yes, sure. And you brought that up with my colleague. I think that goes also if you read the specification every time you didn't cite those cases in your brief. We did not cite those specific cases and the district court didn't seem to rely on those cases. I do not believe the district court did it. But I think you're right. Every time you see related data, related medical image data, they're used anonymously throughout the specification. They're any changed without regard to the meaning
. So our position is that a person who are in the skill and the art when defining the claim related data in the context of specification and file history would conclude that it necessarily means select the medical image data. Are you based on the lexocography of the specification but it's the primary definition that would be resulting. Are you familiar with Edward's life sciences or bid for position? Are there any other real circuit cases? Yes, sure. And you brought that up with my colleague. I think that goes also if you read the specification every time you didn't cite those cases in your brief. We did not cite those specific cases and the district court didn't seem to rely on those cases. I do not believe the district court did it. But I think you're right. Every time you see related data, related medical image data, they're used anonymously throughout the specification. They're any changed without regard to the meaning. And that brings up claim five or the 174 patent. We would submit that there is an antecedent basis for related medical image data. If since related data is anonymous with related medical image data. There was nothing raised in the patent office during the exam to suggest that anyone understood those terms to be different. One thing the court's already identified throughout the specification figure one. The only importing sources of data are image importing. This is the past and our eye. Also found figure two talks about packs. It's getting getting a related image data. And this is interesting because we're trying to define the plant terms in the 2001 time theory
. And that brings up claim five or the 174 patent. We would submit that there is an antecedent basis for related medical image data. If since related data is anonymous with related medical image data. There was nothing raised in the patent office during the exam to suggest that anyone understood those terms to be different. One thing the court's already identified throughout the specification figure one. The only importing sources of data are image importing. This is the past and our eye. Also found figure two talks about packs. It's getting getting a related image data. And this is interesting because we're trying to define the plant terms in the 2001 time theory. And the packs in 2001 were incapable of storing or distributing text. That was classified to by Pell and Zone inventor that packs systems only allowed text to be delivered in the 2005 or 2006 time periods. That also brings back looking at the claims and what a person wrote in the skill in the art. And just reviewing the claims would conclude. And if you look at claim one of 174, it says that the selected medical image data and related data are all gathered from the same database. The packs database. Well in 2001 the packs database necessarily could not provide text data. So by that alone within the conscious of the claim one of the skill in the art would conclude that there was no related data necessarily meant selected medical image data. Similarly within the patent the software that was the inventor had before filing the patent application which was named E-Film could be used to search and burn medical image data. But it couldn't be used to search and burn text
. And the packs in 2001 were incapable of storing or distributing text. That was classified to by Pell and Zone inventor that packs systems only allowed text to be delivered in the 2005 or 2006 time periods. That also brings back looking at the claims and what a person wrote in the skill in the art. And just reviewing the claims would conclude. And if you look at claim one of 174, it says that the selected medical image data and related data are all gathered from the same database. The packs database. Well in 2001 the packs database necessarily could not provide text data. So by that alone within the conscious of the claim one of the skill in the art would conclude that there was no related data necessarily meant selected medical image data. Similarly within the patent the software that was the inventor had before filing the patent application which was named E-Film could be used to search and burn medical image data. But it couldn't be used to search and burn text. And that was also testified to by this to write. So again, person order in skill in the art is presumed to know how all the prior art including this E-Film software would conclude that they couldn't use this to search for text data. And then the file history, the inventor himself made a statement in declaration that the application server allows users to select medical images of interest for additional medical images that are related to the selected images. So throughout the trial history and the specification, the consistent pattern that the only meaning of related data would be selected medical image data. Before your time runs out say something about automatically. Yes, right. Firstly, if we were to agree with you on the first issue do we reach the second issue? No, you're not. We don't think this is an audit. There's no need to. I think the case would be over
. And that was also testified to by this to write. So again, person order in skill in the art is presumed to know how all the prior art including this E-Film software would conclude that they couldn't use this to search for text data. And then the file history, the inventor himself made a statement in declaration that the application server allows users to select medical images of interest for additional medical images that are related to the selected images. So throughout the trial history and the specification, the consistent pattern that the only meaning of related data would be selected medical image data. Before your time runs out say something about automatically. Yes, right. Firstly, if we were to agree with you on the first issue do we reach the second issue? No, you're not. We don't think this is an audit. There's no need to. I think the case would be over. I think there would be. I think that was referenced in both ways. Automatically, if an interesting term, it's probably got a little more meaning than related data, but you still need to look at the specification and file history to determine what it means. A poem cited to the college net case, which you reviewing another specification and another file history and the court came to a conclusion of the meaning of automatically an act case. In this case, the specification has two references to the meaning of automatically without prompting for user selection. And it says without asking for user direction. That wasn't mentioned in the college net case. I think the Helen is basically saying what was good in the college net case should apply here without really focusing on the differences. And the special terms used within the specification. There's several limitations though that begin with the word automatically, right? Yes
. I think there would be. I think that was referenced in both ways. Automatically, if an interesting term, it's probably got a little more meaning than related data, but you still need to look at the specification and file history to determine what it means. A poem cited to the college net case, which you reviewing another specification and another file history and the court came to a conclusion of the meaning of automatically an act case. In this case, the specification has two references to the meaning of automatically without prompting for user selection. And it says without asking for user direction. That wasn't mentioned in the college net case. I think the Helen is basically saying what was good in the college net case should apply here without really focusing on the differences. And the special terms used within the specification. There's several limitations though that begin with the word automatically, right? Yes. And there's some indicators that's what's talking about initiating each step. Well, we're just talking about the machine functioning. Well, not that every single step necessarily has to all flow together without any human intervention at all. Well, it's interesting not all the steps have automatically. And this is a separate first step. Well, in connection with the 174 pattern automatically just appears once. Okay, I'm talking about the other. And the other pattern it does, it is except for the first step. But that first step also occurs automatically. I mean, we're talking about a computer system here
. And there's some indicators that's what's talking about initiating each step. Well, we're just talking about the machine functioning. Well, not that every single step necessarily has to all flow together without any human intervention at all. Well, it's interesting not all the steps have automatically. And this is a separate first step. Well, in connection with the 174 pattern automatically just appears once. Okay, I'm talking about the other. And the other pattern it does, it is except for the first step. But that first step also occurs automatically. I mean, we're talking about a computer system here. So, if what the Helen is arguing is that the final thing happens automatically. Well, the final thing happens automatically in a computer system regardless of what happens up front. I mean, the computer is going to do what the computer does based on the code. In this case, for example, in the 174 pattern, the third-fourth limitation says the search module can figure to automatically search the database. It's related data based on the user selection. If you take out automatically, there's really no difference in applying the balance proposed definition. What about that last phrase based on user selection? Right. It would happen, but I guess I don't understand the question. The step would happen automatically, it would happen based on user selection. And would it prevent the machine starts to run? Right
. So, if what the Helen is arguing is that the final thing happens automatically. Well, the final thing happens automatically in a computer system regardless of what happens up front. I mean, the computer is going to do what the computer does based on the code. In this case, for example, in the 174 pattern, the third-fourth limitation says the search module can figure to automatically search the database. It's related data based on the user selection. If you take out automatically, there's really no difference in applying the balance proposed definition. What about that last phrase based on user selection? Right. It would happen, but I guess I don't understand the question. The step would happen automatically, it would happen based on user selection. And would it prevent the machine starts to run? Right. It basically, our interpretation of the whole claim is that the user selects images that it wants from a certain patient. And then, based on that selection, everything else, it has to automatically search module automatically goes and searches for related images. User initiates. Right. For that, for the, in this case, the user initiation doesn't say it happens automatically. So the user initiation does occur based on it's a truism. It does occur based on the user's input. But then the related images only happen to come on. The final step of related images, the process of grabbing them and burning them onto a CD, happens based on, I mean, it occurs because it's a computer based system. So it's automatically going to happen
. So that final step has to happen automatically because of the system itself. So the insertion of the term automatically, in this case, our position is that it needs, it has to happen without any user intervention. And in our case, the media writer, you can select the images and then you have multiple steps in between that before the diagnostic text reports are added to the CD. So it doesn't happen automatically. And the same analysis would be applicable to the other page. My time's up. Thanks very much