When you're ready, Mr. McCormick? May I please the court for the record on Steve McCormick on behalf of the appellant and cross-epily Honeywell, unless the court has other ideas, I intend to focus in the few minutes that I have on my initial presentation to you on two of the claim construction issues of the five that we presented to your owners. Those two having led to the summary judgment opinion of not infringement. How are the other three before us if they didn't leave the summary judgment? There before you, Your Honor, because there was an opinion, an order granted, which we've been ordered, which we believe was erroneous, we've appealed that order. So, jurisdictionally, it's unappealable or it can only appeal a judgment. The judgment rests on two claim construction, it's not five, right? Well, it rests on two claim construction not five, but I believe Your Honor that the order, once there was a final judgment, the order that court is appealable, and let me suggest to you that we don't want to go back down to the district court within incorrect claim instructions. But let me come back to the two because where the rubber hits the road really on our appeal is look ahead distance and train floor boundary. They led to the summary judgment that was granted of not infringement. Let me start with look ahead distance. I don't believe you could read this claim and this patent as a person skilled in the art or not skilled in the art and not understand that look ahead distance simply met exactly what the word said. It's the distance ahead that the system looks. The only limitation in the claim that's an issue in this case on the look ahead distance is not a limitation on its definition, but how it's computed, how it's determined. The only limitation is that that look ahead distance is a function of speed. That is the speed of the aircraft. That is it's not a fixed distance it varies with speed
. But how do you determine distance without calculating time also with speed? You can't. So the calculation of both has to be a function of both. Time is inherent in the calculation, but of course you do not have to recite every element in your claim that's necessary to practice the invention and your honor let me focus on this. Time is inherent, but not some particular length of time. What the court did was to go back to the descriptive part of the specifications say I'm going to impose the added limitation that it must be function of speed of the aircraft and time to complete a invasive maneuver. We believe that that was incorrect. Time is inherent, but not some particular portion of time. But let's in the interest of time accept that for the moment. That doesn't get to summary judgment because neither of these defendants has in any court and will not today stand up and say our system doesn't provide time to complete an invasive maneuver. And there's an abundant record that that's exactly what their look ahead distance is designed to do. So how did we get to summary judgment? We got to summary judgment because after the court can strew look ahead distance to include time to complete an invasive maneuver. When the court got to summary judgment the court did not compare those devices to that term. The court compared those devices to figure five of the patent. This is the record at A255
. Figure five shows an example of how using a three step process example of how the look at distance could be computed. It's not even an embodyment. It's just an example of how the calculation could be done. And the court decided that and this is at the summary judgment opinion at Appendix 118 that they didn't have this particular method of computing that the look ahead distance. And we don't believe with due respect the district court that anyone could read this patent skilled or unskilled in the art and think that's what was invented. There's no time element at all in the point. First the court adds time to complete an invasive maneuver and then incorporates all of the specifics from figure five. And this court has spoken too many times to count that that is not a proper way to approach claim construction in this case. If I could let's there's others on look ahead distance. Let me speak briefly about terrain floor boundary. There your problem is that in the specification there and to be sure it's in the description of the preferred embodiment it does seem to be language that could be viewed as a definition of terrain floor boundary and relating that to the distance to the closest airport. Correct. In fact in column can it uses the term proportional keyword to the closest keyword runway. Let me suggest to your honor that I can demonstrate that is not an expressed definition of terrain floor boundary
. When you when you're landing is the closest runway going to be something other than the landing runway. Destination runway which is how universal sounds a little strange that there's going to be a closer runway when you're 10 feet off the ground but. Universal says we don't do it because we don't use the closest runway well obviously the destination runway becomes the closest runway. But let me come back to the to the language column tan indeed uses the language that you suggest your honor proportional to the closest but if you look at column 10 of the of the pattern column tan and this is the record of appendix 285 column 10 in that language says the terrain floor relates to a distance delta h now again delta h is a dimension in figure six of the pattern if you look at figure six there is the dimension delta h that's the vertical dimension of the terrain floor boundary it that makes it I believe clear that what's here is not an express definition it's a description of this embodiment and the pattern makes that even more clear if you look over on page 11 it says referring to the same delta h it says as mentioned above the delta h this is a column 11 line 17 or 18 the delta h terrain floor boundary is a function of the distance from the runway a function not proportional now is proportional and function the same perhaps it is but proportional a function of a distance to the runway now your honors let me suggest once again we think that claim construction was wrong I think I've just shown you that this description is much broader but even if you accepted it the fact is both of these devices have a terrain floor boundary that is proportional to the nearest runway your honors already identified why in the case of universal it is in addition to that we as we laid out an artery in the universal device it's destination runway that counts while it's on the flight plan but you can't have a c-fid accident on your flight plan you have a c-fid accident when the plane gets off its flight plan and as our brief pointed out and the evidence of trial pointed out at that point it immediately reverts to closest runway with sand l sand l doesn't dispute closest runway sand l says we are not proportional because proportional they're going to read of course as the district court eventually did proportional to mean something different from function to mean direct proportionality or linear proportionality sand l says we don't just take into account distance we take into account altitude should just another form of distance of course and therefore and this is at their brief at red brief at 51 we don't have ours doesn't vary based on quote a simple distance calculation well the patent doesn't call for a simple distance calculation if you look at figure six which is an example the preferred embodiment it shows a step down it's generally a function of distance you're generally as you're getting closer that terrain floor boundary is coming up from under you and that plane's getting less protection it's not linear and if you look at the district court summary judgment opinion this is the core of the mistake the district court made with due respect summary judgment opinion this is that the at the appendix of a one twenty one the court when it gets to summary judgment says well that's not quote directly proportionate and with due respect that is not how this claim was construed by the district court however wrongly and certainly is not how it ought to be construed by this court here in the rebuttal time mr. McCormick you let me ask you one more question but it's actually tell me how I learned from figure six that your construction is correct I had a war but I'm not going to take the time to go get it wrong the figure six shows an example of the terrain floor boundary can you return to the microphone yeah apologize thank you figure six shows an example of the terrain floor boundary stepping down as the plane is getting closer from the right side of the page to the left side of the page to the airport it shows if it that it's a function of distance but it's not a direct proportion in other words every single segment that it's traveling that terrain floor boundary is not changing you see it's something your six doesn't tell you which runway but in your view it this just goes to the proportion now thank you thank you mr. McCormick mr. Pollock may please the court welcome back to the court thank you here honor for the record my name is Howard Pollock a fishing Richardson representing sandal avionics just a couple brief points on the claim construction issues and then I'd like to turn to the cross appeal with regard to terrain floor boundary it seems that what council is arguing at this point is is a new factual argument with regard to what the proportional means in the court's claim construction what difference does this make the landing runway is going to be the closest runway in every imaginable instance particularly if you're on the flight path if you're off the flight path then the game's a different game well actually so in other words even given your claim construction don't you in French know your honor uh... the issue of proportionality closest runway in some instances is not in fact the landing runway at certain airports but when you're until you're practically touched down but the the key point here is whether or not it was proportional the the function in the actual system is proportional to that distance to the closest runway their substantial evidence in the record from both sandals technical expert and the designer of the system that in fact the function is not proportional to the closest runway because of the way it's calculated in fact in certain situations you can have two different values for the same distance if that's the case it cannot be proportional the district court credited that testimony and found as a matter of fact that the system did not have a calculation that was proportional and we believe there's substantial evidence to support that and i believe in fact that the argument being raised here is again although it's stated to be well we're accepting the limitation in fact it's trying to erase that limitation given the fact as they were found on the look ahead but it's a relevant boundary though the function of the distance the runway the relevant boundary is in fact as defined by honeywell in its specification proportional to the distance to the closest runway that's the way the specification recites it and in fact during prosecution honeywell changed the language to to use this term of art that they coined train floor boundary to avoid the prior art and also in the foreign prosecution they specifically stated and admitted that the specification defines both drain floor boundary as the distance proportion. But all we're doing with this and as it explains here is that we're just trying to prevent nuisance warnings we just don't want the thing to go off or on terrain warnings when you're landing. That's going to work in both of these systems. I mean the goal of the system of course is to prevent seafate accidents and to do so in a way that this particular claim element is to prevent nuisance warnings that's in fact part of the proportional sentence to the closest airport to prevent nuisance warnings. That's correct
. If we include that part of the definition don't use have a different outcome. No if you do it differently you can still prevent nuisance warnings using a different mechanism and that's what it's called. No aren't you within the claim term? The claim term just says terrain boundary. Terrain floor boundary is what the claim term says and as a matter of being within the terrain floor boundary when you're doing the same thing to prevent nuisance warnings. Sounds like you're actually arguing doctrine of equivalence. No we're talking claim construction. The claim construction is what the specification defines and what was defined. We believe the district court follow the rules of claim construction to the letter. You look at the claim language, you look at the specification, you look at the file history. This is a tool. But you don't read any limitations out of that specification. If the patentee acts as their own lexicographer the court has got to apply the definition of the patentee applied. There was no dispute that this is not a true word. And their definition is to prevent nuisance warnings closest boundary which is going to be the landing runway in every instance when you're going down
. I'm going to be more struggling to understand your very. Now you're reading some part of the definition and not the entire definition. With all the respect we believe that the language proportional is still there in that same language. And they chose to use a proportional train for boundary, not something else. Your system uses the destination one way right? Actually our system uses a blended distance based on several different runways at the airport averaging the distance between those different runways. The destination at the destination airport. At the destination airport. It's a blended distance plus a calculation involving altitude and vertical speed. All of which the district court found in the evidence supported was not a proportional boundary that was proportional to the distance to the closest runway. Since I'd like to press on to the cross appeal because I actually believe that it's a much more interesting and problematic issue before this court. On the cross appeal did the district court in treating the on sale bar and public use issues in any respect apply the wrong law? I believe that the district court misapprehended the law and improperly applied it. The cases that the court reviewed are definitely the cases that relate to the issue of. Well in what respect did the district court apply the wrong law? I believe that the district court expanded what has been said by this court a very narrow exception to the experimental use and negation. In a couple of cases the easy dot case and the manville case and I would commend this court to the more recent case that came out after our briefs were filed which is the electromotive division of general motors versus general electric at 417 fed third 1203
. Where this court explained that the experimental use negation is limited and it can be applied sufficient to negate a pre-critical date public use or commercial sale to cases where the testing was performed to perfect the claim features. One of the features is device for alerting a pilot. Now how are you going to know if you're alerting a pilot unless you test it with lots of pilots and make sure you are communicating with them and alerting them? I understand that's in the preamble but I think that's a pretty critical part of the adventure. If you allow me the the electromotive case goes on to say that in cases like the case there and easy dot in manville where a field test was needed to verify durability that's the only limited cases where a court has been allowed to inherently find limitations that are not express. All that this is an express part of the claim this is it's in the preamble but I think it gives life to the whole claim you've got to alert the pilot. Now how do you know if you're adequately alerting pilots without running a lot of tests to make sure they're getting the message? And that's why this case is very instructive because it distinguishes between the necessity for field testing i.e. that it is necessary for the patent to have the invention used in the public or to sell it in order to meaningfully test those limitations that are inherent in the patent claims and in fact in that case it found that the field testing was not necessary because of GM could test adequately in house and it's in house testing it had tested adequately in house to prove the durability of that patented invention. But they didn't do that here? Yes in fact they did you're on alright. The in house testing? Wait wait wait wait wait we have a conflict in testimony right? We had a bench trial we had findings and the question was whether this testing served the purpose of making sure that the invention would perform its intended use. Right? With all the respect? And there was testimony and documentary evidence both ways and the district court made a finding. So you have a problem strikes me that you're really attacking his factual findings rather than the legal standard that he applied? No in fact I disagree because the evidence relied upon was all based on the subjective belief, the subjective belief of the inventors that they did not believe that their system was yet ready. Quote unquote their system was ready for commercialization or for FAA certification. That is not what the law says
. The test has got to be objectively applied. There was an objective evidence based on the fact that we have another line of cases that says it has to work in its intended environment. Yes. We've got the intended environment of pilots who speak different languages, pilots with different comprehension speeds and levels. Why wouldn't all of that factor into your actual testing to make sure it works with alerting pilots? Where is that intended environment recited in the patent? Where is it discussed anywhere? Where? We're talking about aviation. Isn't this pretty clear to one of skill in the art? No, in fact that's not true. The one of skill in the art wouldn't know that you've got pilots of different reaction times and language capabilities? What one of ordinary skill would know is that the system as described was something that was intended to improve over the prior art. That was clearly shown in the evidence before this court. There's a videotape demonstration showing actual flight on an actual plane. The district court found that there's no limitation in the claim. It's not even discussed in the patent what kind of aircraft to apply. The problem with this case is that- Was there any testimony by anybody that as of the critical date you could take this invention and install it in a aircraft and use it for its intended purpose? That evidence has shown objectively there was testimony from Sandel's expert that the evidence of the videotape and the software that the court had in front of it showed that the invention worked for its intended purpose in an airplane flying against actual terrain. In fact, solved the seafate problems that prompted the institution of the research and development- There was testimony to that contract, right? There was testimony to that effect. There was testimony to the contrary
. No, the testimony to the contrary was that the inventors did not believe that their system was yet ready. Why isn't that sufficient testimony for the district court to reach a conclusion that the testing was to make sure that it would work for its intended purpose? Because this court has said repeatedly that it's an objective test and that the subjective belief of the inventors that they needed to experiment is entitled to minimal and in fact almost no way because all inventors will come up with reasons that they need to continue to experiment. The fundamental problem that this court faces with this result is that it provides no guidance to district courts or to patentees as to what is going to be considered an inherent limitation, not objectively, nobody says that any of these limitations were recited expressly in the claims. And in what circumstances should this court expand the experimental use negation? Is it a safety system? Well, if so, how do you apply that? Is it something beyond important inventions? Mr. Pollock, do you want to give some time to Mr. Bornsstein? Yes, I do, you're on it. I believe that it's an attractive problem. I think Mr. Cheshire, you guys have a question. What's respect to the proposed sale to Gulfstream? What does that stand with regard to the sale? That's possibly one of the issues that you haven't raised yet. Yes, well we believe that there's an actual contract for sale. It's got a deliverable. It's got commercial terms for delivery during in fact before the critical day. And in fact the point that the judge below relied on was she believed that it was for an experimental purpose? In fact the contract said if it works, leaving open the point that they have still some experimenting to do to make sure it works
. And another clause says if it doesn't, we'll sell you the look down technology. But if you look at the discuss in the briefs, the objective facts are there was never any experimentation pursuing to that contract. In fact, the inventor said that they believed it was ready before they installed the first unit on a Gulfstream. How could it possibly have been for experimental purposes? If in fact there was no experimentation, I believe you can't even apply the standard set forth in the experimental use cases. There was no testing on Gulfstream. How could it have been for experimental purposes? It was clearly a commercial sale. Thank you Mr. Pollock. Mr. Bornstein, your time's a bit low. Good morning Your Honours. I understand my time is brief and so I'm going to get to the point quickly. I'd like to just briefly address a point that Judge Gaggarsson mentioned a moment ago with respect to whether or not the Gulfstream sale was in fact a commercial offer for sale. What the evidence demonstrated was that 108 ship sets of EGPWS was offered to Gulfstream for $3
.23 million in February of 1994, approximately five months before the critical date. Your Honours asked a question with respect to whether or not the product was deliverable and whether or not the product was actually in their possession at the time. According to February 4, 1994 management volume that was offered by Honeywell, a very extensive document that was descriptive of the EGPWS that existed at the time. It was offered to Gulfstream. Honeywell indicated quote, this product offers the latest and best GPWS solution available today. That's at A5927. Subsequent correspondence after the critical date but referencing back those Gulfstream sales indicated that the first sale of this system EGPWS was made in 1994 for installation in a newly developed business jet. You'll see that at the appendix at A7106-7107. I'd like to briefly address comments that were made by Mr. McCormick with respect to the claim construction analysis. Your time's expired. We'll give you another two minutes and give him additional time to Mr. McCormick to compensate as well. Thank you, Robert. Another two minutes. Thank you. Very briefly, Mr. McCormick indicated that a person of skill in the art that looked at the look ahead distance would not understand what it means. Excuse me, any person of skill in the art that looked at look ahead distance would in fact understand what it meant. The district court had the exact opposite conclusion and noted at page A40 that Honeywell presented no evidence of a common understanding of look ahead distance at the operative time. With respect to train floor boundary, Mr. Pollock mentioned it. As a matter of look ahead distance, both of these have evasion time built in, right? That's not correct, Your Honor. The fact that matter is the way universal system is. It's not correct. What's incorrect about that? Let me explain your question. The way the universal's tall system works is fundamentally different than the way that the claim invention is just right. Well, you put a 60 second automatic time in and they figure the evasion time as a function of speed, which also includes a time factor as Judge Gaiars appointed out
. Another two minutes. Thank you. Very briefly, Mr. McCormick indicated that a person of skill in the art that looked at the look ahead distance would not understand what it means. Excuse me, any person of skill in the art that looked at look ahead distance would in fact understand what it meant. The district court had the exact opposite conclusion and noted at page A40 that Honeywell presented no evidence of a common understanding of look ahead distance at the operative time. With respect to train floor boundary, Mr. Pollock mentioned it. As a matter of look ahead distance, both of these have evasion time built in, right? That's not correct, Your Honor. The fact that matter is the way universal system is. It's not correct. What's incorrect about that? Let me explain your question. The way the universal's tall system works is fundamentally different than the way that the claim invention is just right. Well, you put a 60 second automatic time in and they figure the evasion time as a function of speed, which also includes a time factor as Judge Gaiars appointed out. What's the difference? Your Honor, the end result may and in fact should be the same. In other words, you should have looked at the evasion time. Yeah, they're both evasion times and they're both computed as a function of time. So tell me what? Judge Raider, the reason why I respectfully disagree with your analysis is because we do it in a substantially different way. The way tall's works is it's based on a prefixed set value, 60 seconds for a caution, 30 seconds for a warning. The actual values, the forward extent of universal's envelope, does not vary whatsoever based on on any criteria of the aircraft, any ability to turn any pilot reaction time, which is specifically how the look ahead distance was defined in the specification of the O8O pad. Your Honor, I understand my time is limited if not completely over. Let me just very briefly. You get 10 seconds. Okay, Your Honor. With respect to the public use, which Mr. Apollock did not have a chance to address, there are striking similarities between the Harrington case that this court addressed and the Fred George demonstration. Both involved public use to reporters that were knowledgeable in that particular industry, commercial indications of the actual commercial price that were published in the actual publications. And I respectfully submit the public use facts on support for finding a public use
. What's the difference? Your Honor, the end result may and in fact should be the same. In other words, you should have looked at the evasion time. Yeah, they're both evasion times and they're both computed as a function of time. So tell me what? Judge Raider, the reason why I respectfully disagree with your analysis is because we do it in a substantially different way. The way tall's works is it's based on a prefixed set value, 60 seconds for a caution, 30 seconds for a warning. The actual values, the forward extent of universal's envelope, does not vary whatsoever based on on any criteria of the aircraft, any ability to turn any pilot reaction time, which is specifically how the look ahead distance was defined in the specification of the O8O pad. Your Honor, I understand my time is limited if not completely over. Let me just very briefly. You get 10 seconds. Okay, Your Honor. With respect to the public use, which Mr. Apollock did not have a chance to address, there are striking similarities between the Harrington case that this court addressed and the Fred George demonstration. Both involved public use to reporters that were knowledgeable in that particular industry, commercial indications of the actual commercial price that were published in the actual publications. And I respectfully submit the public use facts on support for finding a public use. Thank you, Mr. Bornstein. Thank you for the extra time. Sure. Would you give Mr. McCormick an extra two minutes so we can balance this out? So McCormick, you have a little over six minutes. Thank you, Your Honor. Let me just say very briefly on claim construction summary judgment, unless the court has any other questions on that. I just want to make one point. You heard Mr. Apollock say on the proportionality issue. They do take into account the distance. As they get closer to the airport, they generally do lower that distance. What Mr
. Thank you, Mr. Bornstein. Thank you for the extra time. Sure. Would you give Mr. McCormick an extra two minutes so we can balance this out? So McCormick, you have a little over six minutes. Thank you, Your Honor. Let me just say very briefly on claim construction summary judgment, unless the court has any other questions on that. I just want to make one point. You heard Mr. Apollock say on the proportionality issue. They do take into account the distance. As they get closer to the airport, they generally do lower that distance. What Mr. Apollock said, and this will be reflected in the record, that the court quote, found as a matter of fact that that was not a directly proportional relationship. And I suggest to you with all due respect to district court, that is not what the district court was supposed to be doing on summary judgment. There was a dispute, clear dispute in the record as to whether, even if you accept proportional, whether that's proportional, that should not have been reviewed as a matter of fact. Let me turn to the claim to the on sale bar issues, unless there's any other questions on the first part of the argument. And let me begin with the sale to Gulf Stream, because everywhere you heard in the argument this morning, and virtually every word in the briefing, by the defendants, goes to the question across the balance, goes to the question of the second prong of FAF, whether it was ready for patenting. The fact is that the first prong of FAF presents a absolutely fundamental proposition, as to whether the sale or offer for sale was of the invention. And it was a central feature of the trial in this case, seven days of massive documents submission, substantial post-dial briefing. I'll just read you if I can. One sentence from the district court's finding, this is that the appendix of 161, the court found that the offers to Gulf Stream Collins and predecessor, Honeywell, reflected an early conception of EGWS, which did not embody the claim to inventions. The offer to the public use. I mean, that come back to the public. That would seem to be harder for you. That's right. Public use
. Apollock said, and this will be reflected in the record, that the court quote, found as a matter of fact that that was not a directly proportional relationship. And I suggest to you with all due respect to district court, that is not what the district court was supposed to be doing on summary judgment. There was a dispute, clear dispute in the record as to whether, even if you accept proportional, whether that's proportional, that should not have been reviewed as a matter of fact. Let me turn to the claim to the on sale bar issues, unless there's any other questions on the first part of the argument. And let me begin with the sale to Gulf Stream, because everywhere you heard in the argument this morning, and virtually every word in the briefing, by the defendants, goes to the question across the balance, goes to the question of the second prong of FAF, whether it was ready for patenting. The fact is that the first prong of FAF presents a absolutely fundamental proposition, as to whether the sale or offer for sale was of the invention. And it was a central feature of the trial in this case, seven days of massive documents submission, substantial post-dial briefing. I'll just read you if I can. One sentence from the district court's finding, this is that the appendix of 161, the court found that the offers to Gulf Stream Collins and predecessor, Honeywell, reflected an early conception of EGWS, which did not embody the claim to inventions. The offer to the public use. I mean, that come back to the public. That would seem to be harder for you. That's right. Public use. The court found that the demonstration flights, and these were the demonstration flights that took place both before and after the critical date. And again, this is from the appendix at 181. We're primarily experimental, quote, as evidence by the use of feedback. So it's all a question there is experimental use. Absolutely. Okay. And if you said to me, and there's a very substantial record, Your Honor, I'm not going to belabor it, it's it's the district court's opinion at appendix 189. But if you said to me, okay, you know, you've got a short time. Give me your best shot. Let me just suggest this. You kept hearing in their briefs about how there were dozens of people who made these demonstration flights, dozens before the critical date. In round numbers, how many of those people came to this trial? How many did they find to come to this trial in person or by deposition to say, we thought they were trying to sell us the system zero, not a human being ever testified that these flights were commercial in nature. Indeed, the district court found in the appendix at 188.89 in her opinion on the merits
. The court found that the demonstration flights, and these were the demonstration flights that took place both before and after the critical date. And again, this is from the appendix at 181. We're primarily experimental, quote, as evidence by the use of feedback. So it's all a question there is experimental use. Absolutely. Okay. And if you said to me, and there's a very substantial record, Your Honor, I'm not going to belabor it, it's it's the district court's opinion at appendix 189. But if you said to me, okay, you know, you've got a short time. Give me your best shot. Let me just suggest this. You kept hearing in their briefs about how there were dozens of people who made these demonstration flights, dozens before the critical date. In round numbers, how many of those people came to this trial? How many did they find to come to this trial in person or by deposition to say, we thought they were trying to sell us the system zero, not a human being ever testified that these flights were commercial in nature. Indeed, the district court found in the appendix at 188.89 in her opinion on the merits. No Honeywell, well, that's not commercial. Doesn't make them experimental. That's correct. She found that they were, again, primarily experimental, quote, as evidence by the use of feedback to determine whether the inventions were accomplished their intended purpose. There's a substantial record on this year, honor, weekly engineering, R&D meetings reflecting feedback from those flights. The basic point is you're working on the algorithms, right? Absolutely. And claimed features of this invention. The related to the claim features, even though the algorithms of cells weren't claimed. Absolutely right. Now, if I could just just mention the second prong of briefly, the second prong, because this is a mantra that you will hear again and again and again, we look at these briefs. That the changes that were made after the critical day, based on this testing, were not claims, were not, were unclaimed features. This is just simply wrong. Not only be based on the pre-amble language you're on or pointed out to, it is a fundamental claimed feature that calls for an alert envelope, first alert envelope, that is a function of a first severity of threat. And the district record found after a lengthy review of the facts and extensive testimony
. No Honeywell, well, that's not commercial. Doesn't make them experimental. That's correct. She found that they were, again, primarily experimental, quote, as evidence by the use of feedback to determine whether the inventions were accomplished their intended purpose. There's a substantial record on this year, honor, weekly engineering, R&D meetings reflecting feedback from those flights. The basic point is you're working on the algorithms, right? Absolutely. And claimed features of this invention. The related to the claim features, even though the algorithms of cells weren't claimed. Absolutely right. Now, if I could just just mention the second prong of briefly, the second prong, because this is a mantra that you will hear again and again and again, we look at these briefs. That the changes that were made after the critical day, based on this testing, were not claims, were not, were unclaimed features. This is just simply wrong. Not only be based on the pre-amble language you're on or pointed out to, it is a fundamental claimed feature that calls for an alert envelope, first alert envelope, that is a function of a first severity of threat. And the district record found after a lengthy review of the facts and extensive testimony. And again, this is, if you have any doubt, this is in the appendix at 177 to 79, particularly 179. The court had the benefit below. There were four sets of R&D design notes by happy for this system. One through four by happy coincidence. Number three came two days before the critical date. The court reviewed that. All of the documents surrounding it, all the testimony found that it reflected serious problems with the court claimed features of this case. And I'd be happy to elaborate, but this is all laid out in the court's opinion at 179. And at that page, the court ties those problems that had not been solved as of the date, directly to the claims. Not subjective testimony. You'll see that again. The term subjective testimony used in the sand, I'll brief eight times in seven pages. It was not the engineers, the inventor saying, this is how I felt. It was the engineers saying, this is what I did
. And again, this is, if you have any doubt, this is in the appendix at 177 to 79, particularly 179. The court had the benefit below. There were four sets of R&D design notes by happy for this system. One through four by happy coincidence. Number three came two days before the critical date. The court reviewed that. All of the documents surrounding it, all the testimony found that it reflected serious problems with the court claimed features of this case. And I'd be happy to elaborate, but this is all laid out in the court's opinion at 179. And at that page, the court ties those problems that had not been solved as of the date, directly to the claims. Not subjective testimony. You'll see that again. The term subjective testimony used in the sand, I'll brief eight times in seven pages. It was not the engineers, the inventor saying, this is how I felt. It was the engineers saying, this is what I did. This is what concrete changes we made and how they related to the direct claims in this case. Mr. McCormick, after the George flight and March, were there any changes made to the system after a year of actual flight? Extensive changes, Your Honor. And just because you've got the date right, let me say that March is the George flight. July 29 is design notes three. That's two days before the critical date. Okay. Okay. The court finds, again, if you look at 177-179, that as of the critical date, months after George, months after the George flight was giving inverted warnings, caution comes before the warning. They had a problem with what they call rapid dissent. It had a problem with claims that approach and the approach falls below the altitude of the aircraft. Sirius problems, all of which changes had to be made not just after the George flight. They had to be made after the critical date several months later. The court found, and I'd be happy to review the evidence, that the George flight was not evidence that this was reduced to practice
. This is what concrete changes we made and how they related to the direct claims in this case. Mr. McCormick, after the George flight and March, were there any changes made to the system after a year of actual flight? Extensive changes, Your Honor. And just because you've got the date right, let me say that March is the George flight. July 29 is design notes three. That's two days before the critical date. Okay. Okay. The court finds, again, if you look at 177-179, that as of the critical date, months after George, months after the George flight was giving inverted warnings, caution comes before the warning. They had a problem with what they call rapid dissent. It had a problem with claims that approach and the approach falls below the altitude of the aircraft. Sirius problems, all of which changes had to be made not just after the George flight. They had to be made after the critical date several months later. The court found, and I'd be happy to review the evidence, that the George flight was not evidence that this was reduced to practice. It was evidence of the opposite. They said to George, we want to show you our old technology, which we've improved, downward-working. And by the way, we will show you some of the work we are doing on the new system. The district court made a factual finding that that represented not evidence that it had been reduced to practice, represented the exact opposite that the system was still in its infancy, and had not been developed. Thank you, Mr. Recormick. Thank you, Your Honor. Our next case will be American Capital Corporation versus the United States.
When you're ready, Mr. McCormick? May I please the court for the record on Steve McCormick on behalf of the appellant and cross-epily Honeywell, unless the court has other ideas, I intend to focus in the few minutes that I have on my initial presentation to you on two of the claim construction issues of the five that we presented to your owners. Those two having led to the summary judgment opinion of not infringement. How are the other three before us if they didn't leave the summary judgment? There before you, Your Honor, because there was an opinion, an order granted, which we've been ordered, which we believe was erroneous, we've appealed that order. So, jurisdictionally, it's unappealable or it can only appeal a judgment. The judgment rests on two claim construction, it's not five, right? Well, it rests on two claim construction not five, but I believe Your Honor that the order, once there was a final judgment, the order that court is appealable, and let me suggest to you that we don't want to go back down to the district court within incorrect claim instructions. But let me come back to the two because where the rubber hits the road really on our appeal is look ahead distance and train floor boundary. They led to the summary judgment that was granted of not infringement. Let me start with look ahead distance. I don't believe you could read this claim and this patent as a person skilled in the art or not skilled in the art and not understand that look ahead distance simply met exactly what the word said. It's the distance ahead that the system looks. The only limitation in the claim that's an issue in this case on the look ahead distance is not a limitation on its definition, but how it's computed, how it's determined. The only limitation is that that look ahead distance is a function of speed. That is the speed of the aircraft. That is it's not a fixed distance it varies with speed. But how do you determine distance without calculating time also with speed? You can't. So the calculation of both has to be a function of both. Time is inherent in the calculation, but of course you do not have to recite every element in your claim that's necessary to practice the invention and your honor let me focus on this. Time is inherent, but not some particular length of time. What the court did was to go back to the descriptive part of the specifications say I'm going to impose the added limitation that it must be function of speed of the aircraft and time to complete a invasive maneuver. We believe that that was incorrect. Time is inherent, but not some particular portion of time. But let's in the interest of time accept that for the moment. That doesn't get to summary judgment because neither of these defendants has in any court and will not today stand up and say our system doesn't provide time to complete an invasive maneuver. And there's an abundant record that that's exactly what their look ahead distance is designed to do. So how did we get to summary judgment? We got to summary judgment because after the court can strew look ahead distance to include time to complete an invasive maneuver. When the court got to summary judgment the court did not compare those devices to that term. The court compared those devices to figure five of the patent. This is the record at A255. Figure five shows an example of how using a three step process example of how the look at distance could be computed. It's not even an embodyment. It's just an example of how the calculation could be done. And the court decided that and this is at the summary judgment opinion at Appendix 118 that they didn't have this particular method of computing that the look ahead distance. And we don't believe with due respect the district court that anyone could read this patent skilled or unskilled in the art and think that's what was invented. There's no time element at all in the point. First the court adds time to complete an invasive maneuver and then incorporates all of the specifics from figure five. And this court has spoken too many times to count that that is not a proper way to approach claim construction in this case. If I could let's there's others on look ahead distance. Let me speak briefly about terrain floor boundary. There your problem is that in the specification there and to be sure it's in the description of the preferred embodiment it does seem to be language that could be viewed as a definition of terrain floor boundary and relating that to the distance to the closest airport. Correct. In fact in column can it uses the term proportional keyword to the closest keyword runway. Let me suggest to your honor that I can demonstrate that is not an expressed definition of terrain floor boundary. When you when you're landing is the closest runway going to be something other than the landing runway. Destination runway which is how universal sounds a little strange that there's going to be a closer runway when you're 10 feet off the ground but. Universal says we don't do it because we don't use the closest runway well obviously the destination runway becomes the closest runway. But let me come back to the to the language column tan indeed uses the language that you suggest your honor proportional to the closest but if you look at column 10 of the of the pattern column tan and this is the record of appendix 285 column 10 in that language says the terrain floor relates to a distance delta h now again delta h is a dimension in figure six of the pattern if you look at figure six there is the dimension delta h that's the vertical dimension of the terrain floor boundary it that makes it I believe clear that what's here is not an express definition it's a description of this embodiment and the pattern makes that even more clear if you look over on page 11 it says referring to the same delta h it says as mentioned above the delta h this is a column 11 line 17 or 18 the delta h terrain floor boundary is a function of the distance from the runway a function not proportional now is proportional and function the same perhaps it is but proportional a function of a distance to the runway now your honors let me suggest once again we think that claim construction was wrong I think I've just shown you that this description is much broader but even if you accepted it the fact is both of these devices have a terrain floor boundary that is proportional to the nearest runway your honors already identified why in the case of universal it is in addition to that we as we laid out an artery in the universal device it's destination runway that counts while it's on the flight plan but you can't have a c-fid accident on your flight plan you have a c-fid accident when the plane gets off its flight plan and as our brief pointed out and the evidence of trial pointed out at that point it immediately reverts to closest runway with sand l sand l doesn't dispute closest runway sand l says we are not proportional because proportional they're going to read of course as the district court eventually did proportional to mean something different from function to mean direct proportionality or linear proportionality sand l says we don't just take into account distance we take into account altitude should just another form of distance of course and therefore and this is at their brief at red brief at 51 we don't have ours doesn't vary based on quote a simple distance calculation well the patent doesn't call for a simple distance calculation if you look at figure six which is an example the preferred embodiment it shows a step down it's generally a function of distance you're generally as you're getting closer that terrain floor boundary is coming up from under you and that plane's getting less protection it's not linear and if you look at the district court summary judgment opinion this is the core of the mistake the district court made with due respect summary judgment opinion this is that the at the appendix of a one twenty one the court when it gets to summary judgment says well that's not quote directly proportionate and with due respect that is not how this claim was construed by the district court however wrongly and certainly is not how it ought to be construed by this court here in the rebuttal time mr. McCormick you let me ask you one more question but it's actually tell me how I learned from figure six that your construction is correct I had a war but I'm not going to take the time to go get it wrong the figure six shows an example of the terrain floor boundary can you return to the microphone yeah apologize thank you figure six shows an example of the terrain floor boundary stepping down as the plane is getting closer from the right side of the page to the left side of the page to the airport it shows if it that it's a function of distance but it's not a direct proportion in other words every single segment that it's traveling that terrain floor boundary is not changing you see it's something your six doesn't tell you which runway but in your view it this just goes to the proportion now thank you thank you mr. McCormick mr. Pollock may please the court welcome back to the court thank you here honor for the record my name is Howard Pollock a fishing Richardson representing sandal avionics just a couple brief points on the claim construction issues and then I'd like to turn to the cross appeal with regard to terrain floor boundary it seems that what council is arguing at this point is is a new factual argument with regard to what the proportional means in the court's claim construction what difference does this make the landing runway is going to be the closest runway in every imaginable instance particularly if you're on the flight path if you're off the flight path then the game's a different game well actually so in other words even given your claim construction don't you in French know your honor uh... the issue of proportionality closest runway in some instances is not in fact the landing runway at certain airports but when you're until you're practically touched down but the the key point here is whether or not it was proportional the the function in the actual system is proportional to that distance to the closest runway their substantial evidence in the record from both sandals technical expert and the designer of the system that in fact the function is not proportional to the closest runway because of the way it's calculated in fact in certain situations you can have two different values for the same distance if that's the case it cannot be proportional the district court credited that testimony and found as a matter of fact that the system did not have a calculation that was proportional and we believe there's substantial evidence to support that and i believe in fact that the argument being raised here is again although it's stated to be well we're accepting the limitation in fact it's trying to erase that limitation given the fact as they were found on the look ahead but it's a relevant boundary though the function of the distance the runway the relevant boundary is in fact as defined by honeywell in its specification proportional to the distance to the closest runway that's the way the specification recites it and in fact during prosecution honeywell changed the language to to use this term of art that they coined train floor boundary to avoid the prior art and also in the foreign prosecution they specifically stated and admitted that the specification defines both drain floor boundary as the distance proportion. But all we're doing with this and as it explains here is that we're just trying to prevent nuisance warnings we just don't want the thing to go off or on terrain warnings when you're landing. That's going to work in both of these systems. I mean the goal of the system of course is to prevent seafate accidents and to do so in a way that this particular claim element is to prevent nuisance warnings that's in fact part of the proportional sentence to the closest airport to prevent nuisance warnings. That's correct. If we include that part of the definition don't use have a different outcome. No if you do it differently you can still prevent nuisance warnings using a different mechanism and that's what it's called. No aren't you within the claim term? The claim term just says terrain boundary. Terrain floor boundary is what the claim term says and as a matter of being within the terrain floor boundary when you're doing the same thing to prevent nuisance warnings. Sounds like you're actually arguing doctrine of equivalence. No we're talking claim construction. The claim construction is what the specification defines and what was defined. We believe the district court follow the rules of claim construction to the letter. You look at the claim language, you look at the specification, you look at the file history. This is a tool. But you don't read any limitations out of that specification. If the patentee acts as their own lexicographer the court has got to apply the definition of the patentee applied. There was no dispute that this is not a true word. And their definition is to prevent nuisance warnings closest boundary which is going to be the landing runway in every instance when you're going down. I'm going to be more struggling to understand your very. Now you're reading some part of the definition and not the entire definition. With all the respect we believe that the language proportional is still there in that same language. And they chose to use a proportional train for boundary, not something else. Your system uses the destination one way right? Actually our system uses a blended distance based on several different runways at the airport averaging the distance between those different runways. The destination at the destination airport. At the destination airport. It's a blended distance plus a calculation involving altitude and vertical speed. All of which the district court found in the evidence supported was not a proportional boundary that was proportional to the distance to the closest runway. Since I'd like to press on to the cross appeal because I actually believe that it's a much more interesting and problematic issue before this court. On the cross appeal did the district court in treating the on sale bar and public use issues in any respect apply the wrong law? I believe that the district court misapprehended the law and improperly applied it. The cases that the court reviewed are definitely the cases that relate to the issue of. Well in what respect did the district court apply the wrong law? I believe that the district court expanded what has been said by this court a very narrow exception to the experimental use and negation. In a couple of cases the easy dot case and the manville case and I would commend this court to the more recent case that came out after our briefs were filed which is the electromotive division of general motors versus general electric at 417 fed third 1203. Where this court explained that the experimental use negation is limited and it can be applied sufficient to negate a pre-critical date public use or commercial sale to cases where the testing was performed to perfect the claim features. One of the features is device for alerting a pilot. Now how are you going to know if you're alerting a pilot unless you test it with lots of pilots and make sure you are communicating with them and alerting them? I understand that's in the preamble but I think that's a pretty critical part of the adventure. If you allow me the the electromotive case goes on to say that in cases like the case there and easy dot in manville where a field test was needed to verify durability that's the only limited cases where a court has been allowed to inherently find limitations that are not express. All that this is an express part of the claim this is it's in the preamble but I think it gives life to the whole claim you've got to alert the pilot. Now how do you know if you're adequately alerting pilots without running a lot of tests to make sure they're getting the message? And that's why this case is very instructive because it distinguishes between the necessity for field testing i.e. that it is necessary for the patent to have the invention used in the public or to sell it in order to meaningfully test those limitations that are inherent in the patent claims and in fact in that case it found that the field testing was not necessary because of GM could test adequately in house and it's in house testing it had tested adequately in house to prove the durability of that patented invention. But they didn't do that here? Yes in fact they did you're on alright. The in house testing? Wait wait wait wait wait we have a conflict in testimony right? We had a bench trial we had findings and the question was whether this testing served the purpose of making sure that the invention would perform its intended use. Right? With all the respect? And there was testimony and documentary evidence both ways and the district court made a finding. So you have a problem strikes me that you're really attacking his factual findings rather than the legal standard that he applied? No in fact I disagree because the evidence relied upon was all based on the subjective belief, the subjective belief of the inventors that they did not believe that their system was yet ready. Quote unquote their system was ready for commercialization or for FAA certification. That is not what the law says. The test has got to be objectively applied. There was an objective evidence based on the fact that we have another line of cases that says it has to work in its intended environment. Yes. We've got the intended environment of pilots who speak different languages, pilots with different comprehension speeds and levels. Why wouldn't all of that factor into your actual testing to make sure it works with alerting pilots? Where is that intended environment recited in the patent? Where is it discussed anywhere? Where? We're talking about aviation. Isn't this pretty clear to one of skill in the art? No, in fact that's not true. The one of skill in the art wouldn't know that you've got pilots of different reaction times and language capabilities? What one of ordinary skill would know is that the system as described was something that was intended to improve over the prior art. That was clearly shown in the evidence before this court. There's a videotape demonstration showing actual flight on an actual plane. The district court found that there's no limitation in the claim. It's not even discussed in the patent what kind of aircraft to apply. The problem with this case is that- Was there any testimony by anybody that as of the critical date you could take this invention and install it in a aircraft and use it for its intended purpose? That evidence has shown objectively there was testimony from Sandel's expert that the evidence of the videotape and the software that the court had in front of it showed that the invention worked for its intended purpose in an airplane flying against actual terrain. In fact, solved the seafate problems that prompted the institution of the research and development- There was testimony to that contract, right? There was testimony to that effect. There was testimony to the contrary. No, the testimony to the contrary was that the inventors did not believe that their system was yet ready. Why isn't that sufficient testimony for the district court to reach a conclusion that the testing was to make sure that it would work for its intended purpose? Because this court has said repeatedly that it's an objective test and that the subjective belief of the inventors that they needed to experiment is entitled to minimal and in fact almost no way because all inventors will come up with reasons that they need to continue to experiment. The fundamental problem that this court faces with this result is that it provides no guidance to district courts or to patentees as to what is going to be considered an inherent limitation, not objectively, nobody says that any of these limitations were recited expressly in the claims. And in what circumstances should this court expand the experimental use negation? Is it a safety system? Well, if so, how do you apply that? Is it something beyond important inventions? Mr. Pollock, do you want to give some time to Mr. Bornsstein? Yes, I do, you're on it. I believe that it's an attractive problem. I think Mr. Cheshire, you guys have a question. What's respect to the proposed sale to Gulfstream? What does that stand with regard to the sale? That's possibly one of the issues that you haven't raised yet. Yes, well we believe that there's an actual contract for sale. It's got a deliverable. It's got commercial terms for delivery during in fact before the critical day. And in fact the point that the judge below relied on was she believed that it was for an experimental purpose? In fact the contract said if it works, leaving open the point that they have still some experimenting to do to make sure it works. And another clause says if it doesn't, we'll sell you the look down technology. But if you look at the discuss in the briefs, the objective facts are there was never any experimentation pursuing to that contract. In fact, the inventor said that they believed it was ready before they installed the first unit on a Gulfstream. How could it possibly have been for experimental purposes? If in fact there was no experimentation, I believe you can't even apply the standard set forth in the experimental use cases. There was no testing on Gulfstream. How could it have been for experimental purposes? It was clearly a commercial sale. Thank you Mr. Pollock. Mr. Bornstein, your time's a bit low. Good morning Your Honours. I understand my time is brief and so I'm going to get to the point quickly. I'd like to just briefly address a point that Judge Gaggarsson mentioned a moment ago with respect to whether or not the Gulfstream sale was in fact a commercial offer for sale. What the evidence demonstrated was that 108 ship sets of EGPWS was offered to Gulfstream for $3.23 million in February of 1994, approximately five months before the critical date. Your Honours asked a question with respect to whether or not the product was deliverable and whether or not the product was actually in their possession at the time. According to February 4, 1994 management volume that was offered by Honeywell, a very extensive document that was descriptive of the EGPWS that existed at the time. It was offered to Gulfstream. Honeywell indicated quote, this product offers the latest and best GPWS solution available today. That's at A5927. Subsequent correspondence after the critical date but referencing back those Gulfstream sales indicated that the first sale of this system EGPWS was made in 1994 for installation in a newly developed business jet. You'll see that at the appendix at A7106-7107. I'd like to briefly address comments that were made by Mr. McCormick with respect to the claim construction analysis. Your time's expired. We'll give you another two minutes and give him additional time to Mr. McCormick to compensate as well. Thank you, Robert. Another two minutes. Thank you. Very briefly, Mr. McCormick indicated that a person of skill in the art that looked at the look ahead distance would not understand what it means. Excuse me, any person of skill in the art that looked at look ahead distance would in fact understand what it meant. The district court had the exact opposite conclusion and noted at page A40 that Honeywell presented no evidence of a common understanding of look ahead distance at the operative time. With respect to train floor boundary, Mr. Pollock mentioned it. As a matter of look ahead distance, both of these have evasion time built in, right? That's not correct, Your Honor. The fact that matter is the way universal system is. It's not correct. What's incorrect about that? Let me explain your question. The way the universal's tall system works is fundamentally different than the way that the claim invention is just right. Well, you put a 60 second automatic time in and they figure the evasion time as a function of speed, which also includes a time factor as Judge Gaiars appointed out. What's the difference? Your Honor, the end result may and in fact should be the same. In other words, you should have looked at the evasion time. Yeah, they're both evasion times and they're both computed as a function of time. So tell me what? Judge Raider, the reason why I respectfully disagree with your analysis is because we do it in a substantially different way. The way tall's works is it's based on a prefixed set value, 60 seconds for a caution, 30 seconds for a warning. The actual values, the forward extent of universal's envelope, does not vary whatsoever based on on any criteria of the aircraft, any ability to turn any pilot reaction time, which is specifically how the look ahead distance was defined in the specification of the O8O pad. Your Honor, I understand my time is limited if not completely over. Let me just very briefly. You get 10 seconds. Okay, Your Honor. With respect to the public use, which Mr. Apollock did not have a chance to address, there are striking similarities between the Harrington case that this court addressed and the Fred George demonstration. Both involved public use to reporters that were knowledgeable in that particular industry, commercial indications of the actual commercial price that were published in the actual publications. And I respectfully submit the public use facts on support for finding a public use. Thank you, Mr. Bornstein. Thank you for the extra time. Sure. Would you give Mr. McCormick an extra two minutes so we can balance this out? So McCormick, you have a little over six minutes. Thank you, Your Honor. Let me just say very briefly on claim construction summary judgment, unless the court has any other questions on that. I just want to make one point. You heard Mr. Apollock say on the proportionality issue. They do take into account the distance. As they get closer to the airport, they generally do lower that distance. What Mr. Apollock said, and this will be reflected in the record, that the court quote, found as a matter of fact that that was not a directly proportional relationship. And I suggest to you with all due respect to district court, that is not what the district court was supposed to be doing on summary judgment. There was a dispute, clear dispute in the record as to whether, even if you accept proportional, whether that's proportional, that should not have been reviewed as a matter of fact. Let me turn to the claim to the on sale bar issues, unless there's any other questions on the first part of the argument. And let me begin with the sale to Gulf Stream, because everywhere you heard in the argument this morning, and virtually every word in the briefing, by the defendants, goes to the question across the balance, goes to the question of the second prong of FAF, whether it was ready for patenting. The fact is that the first prong of FAF presents a absolutely fundamental proposition, as to whether the sale or offer for sale was of the invention. And it was a central feature of the trial in this case, seven days of massive documents submission, substantial post-dial briefing. I'll just read you if I can. One sentence from the district court's finding, this is that the appendix of 161, the court found that the offers to Gulf Stream Collins and predecessor, Honeywell, reflected an early conception of EGWS, which did not embody the claim to inventions. The offer to the public use. I mean, that come back to the public. That would seem to be harder for you. That's right. Public use. The court found that the demonstration flights, and these were the demonstration flights that took place both before and after the critical date. And again, this is from the appendix at 181. We're primarily experimental, quote, as evidence by the use of feedback. So it's all a question there is experimental use. Absolutely. Okay. And if you said to me, and there's a very substantial record, Your Honor, I'm not going to belabor it, it's it's the district court's opinion at appendix 189. But if you said to me, okay, you know, you've got a short time. Give me your best shot. Let me just suggest this. You kept hearing in their briefs about how there were dozens of people who made these demonstration flights, dozens before the critical date. In round numbers, how many of those people came to this trial? How many did they find to come to this trial in person or by deposition to say, we thought they were trying to sell us the system zero, not a human being ever testified that these flights were commercial in nature. Indeed, the district court found in the appendix at 188.89 in her opinion on the merits. No Honeywell, well, that's not commercial. Doesn't make them experimental. That's correct. She found that they were, again, primarily experimental, quote, as evidence by the use of feedback to determine whether the inventions were accomplished their intended purpose. There's a substantial record on this year, honor, weekly engineering, R&D meetings reflecting feedback from those flights. The basic point is you're working on the algorithms, right? Absolutely. And claimed features of this invention. The related to the claim features, even though the algorithms of cells weren't claimed. Absolutely right. Now, if I could just just mention the second prong of briefly, the second prong, because this is a mantra that you will hear again and again and again, we look at these briefs. That the changes that were made after the critical day, based on this testing, were not claims, were not, were unclaimed features. This is just simply wrong. Not only be based on the pre-amble language you're on or pointed out to, it is a fundamental claimed feature that calls for an alert envelope, first alert envelope, that is a function of a first severity of threat. And the district record found after a lengthy review of the facts and extensive testimony. And again, this is, if you have any doubt, this is in the appendix at 177 to 79, particularly 179. The court had the benefit below. There were four sets of R&D design notes by happy for this system. One through four by happy coincidence. Number three came two days before the critical date. The court reviewed that. All of the documents surrounding it, all the testimony found that it reflected serious problems with the court claimed features of this case. And I'd be happy to elaborate, but this is all laid out in the court's opinion at 179. And at that page, the court ties those problems that had not been solved as of the date, directly to the claims. Not subjective testimony. You'll see that again. The term subjective testimony used in the sand, I'll brief eight times in seven pages. It was not the engineers, the inventor saying, this is how I felt. It was the engineers saying, this is what I did. This is what concrete changes we made and how they related to the direct claims in this case. Mr. McCormick, after the George flight and March, were there any changes made to the system after a year of actual flight? Extensive changes, Your Honor. And just because you've got the date right, let me say that March is the George flight. July 29 is design notes three. That's two days before the critical date. Okay. Okay. The court finds, again, if you look at 177-179, that as of the critical date, months after George, months after the George flight was giving inverted warnings, caution comes before the warning. They had a problem with what they call rapid dissent. It had a problem with claims that approach and the approach falls below the altitude of the aircraft. Sirius problems, all of which changes had to be made not just after the George flight. They had to be made after the critical date several months later. The court found, and I'd be happy to review the evidence, that the George flight was not evidence that this was reduced to practice. It was evidence of the opposite. They said to George, we want to show you our old technology, which we've improved, downward-working. And by the way, we will show you some of the work we are doing on the new system. The district court made a factual finding that that represented not evidence that it had been reduced to practice, represented the exact opposite that the system was still in its infancy, and had not been developed. Thank you, Mr. Recormick. Thank you, Your Honor. Our next case will be American Capital Corporation versus the United States