Legal Case Summary

Afternoon. This afternoon we have three cases on for argument. These be assured that we have read your briefs and we are familiar with your arguments that you should go directly to the points that you want to impress upon us. But those who may not be familiar with our lighting system, when your yellow light goes on you are beginning to consume your rebuttal time. When the red light goes on you are out of time. We will hear argument first in number 06, 1406, Honeywell International Against Universal Aveonics. Mr. Pollock. Please the court. My name is Howard Pollock. I'm the official Richardson. I'm representing Universal Aveonics. This is court. We believe, Universal believes, that this appeal presents what Universal thinks are three errors of claim construction related to the Asserted 436 patent. And in one of which, if corrected by this court, would compel the conclusion that there's no infringement of the Honeywell patent. I'd like to briefly touch on them all if I can. I'm a lot of them, but I'm going to start with the head and construction issue, because I think it's the most clear cut. This court's authority has established, based on the no dysfunction of patent claims, presumption that words in a patent claim are given their ordinary meaning to what a ordinary stillness are at the time of the invention. In this case, Mr. Pollock, I don't want to preempt your argument. But let me, you could help me on something. I think I know what our precedents say. All these various things, thank you very much

. What I don't know is the way in which the Honeywell terrain thing operates. The red brief, which is your brief, I believe, gives a very nice explanation of the Taws technology. So I think I understand what Taws does. But nowhere in either of these briefs or anywhere else do I get any clear sense of exactly what it is that Honeywell thought it was inventing that in effect did what I suppose Taws does, which is tell the pilot that he's about to hear, she's about to hit a tree in front of the runway instead of past the runway. How do they work? Actually, Your Honor, I would like to address that because it presents what I think is a misconception in what the invention is. The invention is not about warning the pilot as to when they might, as you say, run into the terrain. The invention is about providing a mechanism to enable to turn on an alerting system based on a characteristic that was never used as part of the alerting system as of that time. The systems that were at the state of the hour at the time rely on things like altitude and change of rate of altitude, etc. To tell the pilot, hey, you might be getting close to the terrain. They rely on also a flap and gear indication, which was a flip that switched the pilot flip to say, I am going to be approaching the airport now, so change the characteristics of the warning system. When it goes to 40 degrees flaps, the airplane knows, hey, I'm going to land. They don't do that so much. They don't do that anymore. So he needs a different way to tell the airplane you're getting ready to land. Exactly. To enable certain aspects of the warning systems. And the proxy that this invention came up with is we are going to look to see whether we're close to the airport based on our distance. If we're within a certain distance we're going to presume, hey, we might be landing at the airport. And it also looks at an alignment estimation to determine whether I'm aligned sufficiently with the runway to also presume that the airplane is going to intend to land. Why does it need that? How about if it's overflying the airport at 5,000 feet? The distance between the aircraft and the airport is now a mile. Well, that's well within the envelope of, what is it, 12 miles, whatever the envelope is. How does the aircraft understand that it is not landing when it's within a mile of the airport, but it's at 5,000 feet? And it right angles to the runway

. That is an additional aspect of these systems that's not dealt with by this invention. In fact, in the, an additional limitation as it were that you would add on is you have an altitude cutoff that would also be factored in to determine if I'm above the airport, but, you know, as you said, 5,000 feet above the airport, it's not likely that I'm going to land. It's actually very complicated algorithm because in certain cases you might be circling to land. And so there are different kinds of approaches. So this invention doesn't deal with every situation. It dealt with a stack, a soft gap measure as it were to deal with the existing ground proximity warning systems and add a mechanism to deal with this flash ambiguity problem, which was the flash no longer reliably indicate whether I'm going to land. Well, why is it bearing as good an indicator as heading? It might be an alternative, but that's the question is what is the claim recite? The claim recites the use of heading? Well, we know what the claim recites, but we don't know, or I don't know, is what the claim means. I think that's the issue before us. And the issue is, as we believe, it's one of ordinary skill understands what heading means. But why is heading important to their, why is heading important to them, and why don't you use heading? Heading is important because heading is one measure of alignment. Heading means that the plane is pointing in a certain direction. And by looking at that angle I'm pointing and comparing it to the angle to runway, I can determine whether I'm lined up with the runway. Well, not quite. But eventually, you know, you've been... Eventually aren't you going to have a heading and a bearing at the same time? Well, you always have to. One in the same, right? One you're landing? Technically, when you're landing, you're bearing to the airport. And they don't have any real relationship to the heading of the runway, because you'll be at the airport. But just before you..

. So, at that point, the heading and the bearing would be the same? Could be. Could be. The issue here is the choice that the plane makes. If the case, of course, in which the heading doesn't give you the information you need is a case in which you have, for example, a north-south runway, and a plane which is 30 miles to the west flying to north. Same head. Using the term in the ordinary sensor. Exactly. Without prejudicing the argument that that's not the way it's used in the pattern. But here's my question. It really goes to the paragraph you're very familiar with on column 6, starting at line 6. And it talks about essentially the math of how we work through a line 6. At the end of that, I come out with a pretty high degree of confidence that alignment is not talking about the conventional notion of heading. IE, which direction a plane which is in a particular place may be pointing, but rather what is the physical location of the plane? Now, if that's true, then it seems to me the only way you win this case is to say that the claim is about an embodiment that isn't discussed and that embodiment is not in the plane. Is that fair? That's my problem. I believe that the claim is about an embodiment that may not be expressly discussed in the specification. Certainly consistent with what's in the specification. The claim is not preclude using bearing as a measure of alignment. It doesn't require it. And I submit to you, you've all picked up on this very important thing, which is to actually solve the problem 100%. You would probably want to take into account the goal. Because of bearing and I apologize when it turns to the side, I know at the same bearing to the bench as I was a moment ago, but I'm finding another direction as it were. So my bearing might not be an accurate indicator of whether I approach an invention to land

. Because it doesn't tell you what direction you're flying and when it tells you where you are physically at that moment. So let me ask you this question. I skipped over the middle step. I want to make sure I understand where you are in this. Do you think that paragraph of the specification describes alignment? It doesn't use the word heading nor the word bearing. But do you think it is describing alignment in terms of bearing? Yes. Again. So your interpretation of the claim would say that claim language does not refer back to that embodiment and to the extent that the claim refers to what we conventionally call headed. That is not present in the specification. I think it's clear from the discussion in the prosecution history that that's exactly what the claim means. Because the patent team brought up that proportion when the examiner said, hey, your claim isn't sufficient because it doesn't address what you say you're using for alignment, which is heading. The patent team came back and said, oh no, look in the spec. The examiner repeated his rejection and said, no, in fact, the spec doesn't answer the question. If you want to do alignment in terms of heading, you need to recite heading in the claim. Honeywell, a man that declaimed recite heading and the examiner allowed the class. But this was in the context of a discussion by Honeywell. Again, I know you're familiar with this page, but I think it's 8.270. In which Honeywell kind of bridges the last portion of the gap, which wasn't bridged in the spec, in which specifically identifies heading as being part of this arithmetic of, actually, I guess, trigonometric calculation that's done, which we've just determined really means bearing. So I read that and I say, okay, if columns 6 meet and don't worry about your time, we'll give you extra time because we're pestering you with questions and we'll do the same for Mr. Toronto. But if that paragraph is all about bearing, and the prosecution history is all about the trigonometry of that, in terms of that passage, in the same trigonometry, Arctan and the same devices, and calls the determined heading, haven't we established the meaning of heading for purposes of this pattern? No, okay

. And I believe that you can't look at that passage in isolation. You have to look at it in the context of what went before and what kind comes after, as I just explained. And let me submit to the part this, because I didn't appreciate it early on. This issue of heading, it's a person of ordinary skill, this is a black and white issue. And really, as I said, a black widget, and everything in the spec described white widgets. Personal warrior skill would read the claim and say, I know what the black means. And the fact that the spec doesn't say, by using the term black, meaning white, unless it's that clear, personal warrior skill would read black to mean black. And I was told by someone who have ordinary skill in avionics, in navigation, heading means heading, and unless you tell me expressly you're using it to mean something else, I wouldn't interpret it to mean heading. Yeah, but the calculation though, let's describe not only in column six, but also in the response to the rejection. I'm talking about page a 272 71. It really speaks to a particular bearing, doesn't it? It does. Even though at the end of the, the heading of the aircraft is determined by the circuitry, which is block 46, 47, 48, a figure five. Yes. And I believe the examiner's response by saying, I still reject the claimants. You need to recite heading if you want heading to be what is the way it wanted to determine by claiming the claim and reciting heading as the examiner understood it. Honeywell adopted the claim normer. But the examiner then on June 5, which is a 8276 states, but it appears that in order to be operational, the aircraft heading inputs would have the necessary and so much inputs and, and no such inputs acclaimed. So that's when they put the heading requirement in the claim. Exactly. So from that perspective, isn't it still a bearing at that point? Is it they describing a bearing instead of a heading? No, no, they're using the term heading. No, because I mean, if the examiner understood that, what after their response, he would have said, okay, then your recitation and bearing is taken to mean heading. And therefore, he already recited that

. But he didn't take that. He said, look, I am saying that when you have not recited the claim, the claim says we wanted to determine alignment. At that time, it said we wanted to determine alignment based on the heading of the aircraft. He said, you need to recite something that says you have that information, a man that claimed the way you wrote the first one. And if you do that to expressly recite heading inputs, then I will allow the claim, because it now is operational. I know what heading means. But figure five, though, if you put all of the mathematical inputs into it, you'll come up with a bearing. Figure five implementation shows a bearing capital. What do we do, as in my hypothetical case, the examiner and the applicant, or at least the lawyers for the applicant, which is probably the problem? The lawyers and the examiner were just not on the same page. So there's no evidence, at least to my eye at this point, that the lawyers acquiesced in an understanding of what heading meant that was contrary to the understanding that was events done in page A270 shortly before that. What do we do if the examiner was assuming heading that one thing, and the prosecuting attorneys were assuming that heading was both understood to mean and was being consistently used to mean something else? What does that tell us about how we ought to try to make a contribution? The definition and the advocate says that when the intrinsic evidence sets up an ambiguity, that you don't have the necessary clear and deliberate indication that a conventional term is being redefined, and you have to default, because the public has to rely on plain or narrating it into a personal or a new skill at the same time. But ambiguity is a little bit different from the problem from the one I'm trying to describe. But I'm trying to describe a situation in which, as far as the patent is concerned, and let's say hypothetically, I know you don't subscribe to this fully, but suppose that if a person were to walk in without any knowledge of the back and forth with the examiner and so forth, but just were to read the specification. And were to read the statements made, for example, in 270, that person would be completely convinced that the word heading was being used to mean bearing. So as far as the extrinsic evidence up to that point was concerned, unlike the examiner, that person would be certain that this patent described a bearing and called it a heading. That's by hypothesis. In that situation, where the examiner then comes back and says, no, you must add something with respect to heading. And let's assume we know somehow that the examiner was operating under the assumption that heading was being used in its conventional sense. Does that now change the meaning of the word in the patent? I believe it does. When the applicant then amends the claim, consistent with what you say. Does change the meaning of the word in the claim that is.

.. From what I am misled, my question was on the paper. From the meaning that I'm hypothetically giving it to the chance of the right time, not the natural meaning of the term. Yes. I think we're on the same wavelength. I think that you have to conclude that the applicant's adding in terminology that the examiner asked for at that point in time to the claim that we're under the understanding of the examiner is the one that controls. I know I'm well over my time. There's just one short point I'd like to make on the roundabout assembly warning system. Which is that I believe you can't interpret that terminology as four separate words with plain English meanings mashed together. I think you have to look at it as a term of art. I think that as we discussed the evidence, the record shows that there was an established meaning to those four words used together. When you said for Alaproximate Warning System at the time, it's, oh yeah, that's TSOC92. We know what that means. The FAF is mandated. It's not four plain English words as any well as a term. Answer one more question while you're standing before us at the moment. And that is assuming we conclude that heading and claim one means heading in the conventional sense. How does that help you? Because there's no dispute that the system that's being accused of infringement does not use heading in any form. Okay, that's what I needed to understand. Thank you. Very well. When are we, were you done with that second point? I was done with that second point

. If there are questions when I come back on the enable disabled issue, which I'll be happy to answer them. Okay, why don't we do this? We'll give you your full rebuttal time. And then if you could add in this time, you could add eight minutes to Mr. Toronto's time. Because I think you're well, eight and a half minutes. Thank you. Mr. Toronto, I think I may have started out accusing Mr. Pollock of having written the red brief and I apologize to both of you today. Actually, I found your red brief helpful in a couple of issues. One of them is, as I say, the explanation of the pause system, which was interesting and understandable. Curious that you never explained, you never really explained your own system. But maybe that's because it's inexplicable. But putting that aside for the moment. The debate thus far, the discussion thus far, suggests, and I want to see if you agree with it, that there is an inherent incompatibility between the written description that appears in this particular patent and the actual plain meaning, normal understanding of claim one. You agree that that's true. I agree except that I certainly would be normal or narrow meaning how plain and black and white it is. I think it is maybe a separate question. Sure. But there's no dispute that the starting point of those skill in the art reading the heading is what we ordinarily refer to as bearing. And that the written description seems to clearly be thinking in terms of bearing. I think on the stake of the list

. I think on the stake of the list. All right. Now, if I may, let me focus on what is causing me the biggest problem with your side of the case. And that is if you look at the office action of February 25th, this is page A180 of the prosecutor of the appendix. The examiner, and this comes back to our presiding judge, Bryson's insightful question at the very end. What do we do when the examiner has one thought in his head and the prosecuting attorney has entirely different one. We'll come back to that in a minute. But here's why it seems to me clear that the examiner was thinking of something else because the examiner says on page A180. In Claim 14, it is unclear how a runway is compared to a datum or how alignment with a runway is sent. In response to that, if you look on page A242, you'll see the response by the attorney who's trying to get this patent approved. The attorney says, Claim 14 is been, this is the bottom of page A242. Claim 14 has been rejected because the examiner believes it is unclear how a runway is compared to a datum or how alignment with a runway is sent. Claim 14 has been amended to delete datum and recite a source of signals representative of the relative angular position of a particular runway with respect underlined to the heading of the aircraft. Now, if you do one further thing, which I've done because you so nicely sub-paragraph Claim 14 in your brief, if you pay sub-paragraph 5 of Claim 14, and you substitute the trial judge's definition verbatim definition of heading for the word heading in paragraph sub-5. This is what you get. Means responsive to said first and second sources of signals for providing a signal representative of the alignment of the aircraft with the runway and the angle formed by the line connecting the aircraft position and the airport and a reference datum. Now, in using her definition of heading, she's put datum back in, which is exactly what the examiner said, you have to take out. And secondly, she's put in a definition that makes no sense because it says the alignment of the aircraft with the runway and one, the angle formed by the line connecting the aircraft position and two, the airport and three, a reference datum. Well, you can't have a line that's described in that way that makes any sense at all because there's nothing that explains how you do that line. And I think that's what the examiner was troubled by. So it seems to me when the examiner said put in heading the examiner had a totally different concept, but that's what the examiner got. Let me see if I can work with that

. The reference datum that you were talking about is north. So you don't have three points to make a line. You have two points to make a line compared to the reference datum and that's what makes the angle. Too bending and putting in north, this case probably never probably would have to make a demand. It's a private reference. There's let me remind you that the examiner said, I don't know what reference datum mean. Yeah, that's unfortunate. And you took it out. You said, okay, we'll take out reference datum and guess what we put in? We put in heading. The examiner unquestionably started with remarks that are reasonably understood to reflect his understanding at the outset of heading in the ordinary sense. But that's only where it started. What happened after that was, that's the 180 series that you're talking about. And then we get our response in the 240 series. And if you turn a couple of pages later after 242, which you mentioned, all is part of the same set of remarks on 244. We're now talking about playing 21, same kind of alignment language. And we say, here's what heading is, look at column six. I'm using column six here as the substitute for the page numbers in the application. So look at column six. That's the first place where we say to the examiner, here's what we mean by heading. Okay, I think 2.5 is what we call. That's the page underneath. Right, 2.4.5. We call it in our room. Okay, so that's what we do. A back point, the examiner, never repeats his initial assumption, which which are grant, what are you calling? Well, that we were using initial initial, his initial assumption, we were using heading to mean the pointing meaning, not the positional meaning. After that, he says, you need to put some stuff about heading in the claims. And then, and the next round then is what appears at 272.7. We're not where I think it couldn't be clear, where we're saying heading is the positional meaning, not the pointing. So, I don't dispute that if you ask the question, what is the most likely assumption the examiner had at the very beginning of the process that the answer would be the pointing meaning. But that was only the beginning of the process. And what happened thereafter, it seems to me, it just made it unmistakable that the usage we were engaged in was the positional. Let me invite you to look at a 256, which now takes place in December of 88. This is the office action back in December, I believe. In which the examiner says, in claim 21, determining means are said to find aircraft alignment with respect to a runway based on runway heading and latitude and longitude data. However, it appears that in order to operate the means would also have to receive inputs from an aircraft heading sensing device. In claim 24, I think it's an it rather than is in claim 24, it appears that aircraft alignment could not be found without aircraft heading inputs. Language is used in amended claims 14 and 19, it suggested to rectify this problem. So, almost a year later, the examiner is still saying, hey guys, I meant what I said back in February, please put in heading. I probably overstated the matter when I said that, because the first reference at 244, 245 or heading was built into a discussion of alignment. It is in response to the one that you just mentioned 256 that we didn't set forth, what's it 278, 278, 278

. Right, 2.4.5. We call it in our room. Okay, so that's what we do. A back point, the examiner, never repeats his initial assumption, which which are grant, what are you calling? Well, that we were using initial initial, his initial assumption, we were using heading to mean the pointing meaning, not the positional meaning. After that, he says, you need to put some stuff about heading in the claims. And then, and the next round then is what appears at 272.7. We're not where I think it couldn't be clear, where we're saying heading is the positional meaning, not the pointing. So, I don't dispute that if you ask the question, what is the most likely assumption the examiner had at the very beginning of the process that the answer would be the pointing meaning. But that was only the beginning of the process. And what happened thereafter, it seems to me, it just made it unmistakable that the usage we were engaged in was the positional. Let me invite you to look at a 256, which now takes place in December of 88. This is the office action back in December, I believe. In which the examiner says, in claim 21, determining means are said to find aircraft alignment with respect to a runway based on runway heading and latitude and longitude data. However, it appears that in order to operate the means would also have to receive inputs from an aircraft heading sensing device. In claim 24, I think it's an it rather than is in claim 24, it appears that aircraft alignment could not be found without aircraft heading inputs. Language is used in amended claims 14 and 19, it suggested to rectify this problem. So, almost a year later, the examiner is still saying, hey guys, I meant what I said back in February, please put in heading. I probably overstated the matter when I said that, because the first reference at 244, 245 or heading was built into a discussion of alignment. It is in response to the one that you just mentioned 256 that we didn't set forth, what's it 278, 278, 278. What's troubling me is, I was troubling me is exactly the point that Judge Bryson focuses on and that is it's clearly examiner had a different picture than his head. Initially, because he didn't register. I'm not convinced he ever let go of it. If he had thought that what we were claiming was a point in meaning, the first thing he would have said is, where is this in anywhere in the written description and I think it's all agreed here now. There is no reference anywhere in the written description to use of appointing me anywhere. The entire written description of what we invented is about the positional need. The word heading never appears. That's right, the word heading doesn't appear in the specific case. Which is why I'm amazed that you're prosecuting attorney accepted this. Accepted. Accepted. Accepted. Examiners existence that heading be put in since it never appeared anywhere in his written description. I think it is plain from the prosecution history that the examining the prosecuting attorney and at least one of the inventors who was taking the lead here on this, in fact thought that heading meant the positional need. They said it first at the 244 place and then again in explicit detail, the 272 71 place. So that by the time the amendments were put in place in the exam, they said, okay now I see how you can have a claim to ahead in without a sensing device to sense the point in direction. He accepted the amendment. That's why it seems to me short of a legal requirement that says by his word we mean X when the normal meaning is Y, this has got to be a case where any skilled reader would read the packet in light of the specification and the prosecution history and say it's perfectly clear what this invention was claimed. Am I correct? Am I correct in concluding that the first time the word heading at least as pertains to this patent directly shows up is on 242, which is the point at which the datum language has been objected to and the substitution is heading. That was not I take it that that language was not an examiner's suggestion was at that point. I know he made the later suggested but I thought at this point, I had the impression that when that first change was made to go from datum to heading in claim 14, which became one, that that was the first time it popped up. Is that right? Is that your I think that's the that's the first time it popped up in thing 14 that the word is used in some of the original claims

. What's troubling me is, I was troubling me is exactly the point that Judge Bryson focuses on and that is it's clearly examiner had a different picture than his head. Initially, because he didn't register. I'm not convinced he ever let go of it. If he had thought that what we were claiming was a point in meaning, the first thing he would have said is, where is this in anywhere in the written description and I think it's all agreed here now. There is no reference anywhere in the written description to use of appointing me anywhere. The entire written description of what we invented is about the positional need. The word heading never appears. That's right, the word heading doesn't appear in the specific case. Which is why I'm amazed that you're prosecuting attorney accepted this. Accepted. Accepted. Accepted. Examiners existence that heading be put in since it never appeared anywhere in his written description. I think it is plain from the prosecution history that the examining the prosecuting attorney and at least one of the inventors who was taking the lead here on this, in fact thought that heading meant the positional need. They said it first at the 244 place and then again in explicit detail, the 272 71 place. So that by the time the amendments were put in place in the exam, they said, okay now I see how you can have a claim to ahead in without a sensing device to sense the point in direction. He accepted the amendment. That's why it seems to me short of a legal requirement that says by his word we mean X when the normal meaning is Y, this has got to be a case where any skilled reader would read the packet in light of the specification and the prosecution history and say it's perfectly clear what this invention was claimed. Am I correct? Am I correct in concluding that the first time the word heading at least as pertains to this patent directly shows up is on 242, which is the point at which the datum language has been objected to and the substitution is heading. That was not I take it that that language was not an examiner's suggestion was at that point. I know he made the later suggested but I thought at this point, I had the impression that when that first change was made to go from datum to heading in claim 14, which became one, that that was the first time it popped up. Is that right? Is that your I think that's the that's the first time it popped up in thing 14 that the word is used in some of the original claims. So it's not. It didn't pop up for the very first time. But one indication that there was a little bit more looseness about this bearing heading usage and we might be assuming here is that universal and its reply group here says well you talked a little bit about the heading of the runway and it says well that can mean only one thing because as it says a runway doesn't have a bearing. Well, it doesn't have a heading either. It has been aligned. But of course in its own software it uses the term bearing of the runway. These are not terms that like black and white have meanings that are obviously universally and sort of fixively opposite to one another. And that's what I think accounts for the unmistakable reality of this prosecution history together with this specification in which they're talking about appointing meaning and using the term heading. But as it was an understandable mistake of usage if one takes the normal the most normal usage as as the only usage then you would call it a mistake. But it was a perfectly clear mistake about what was intended. What I was suggesting is it may not be as clear a mistake as all of that. What the misuse of the term heading meaning bearing we all know what bearing means a reference or fixed point. Now what happens in the claim itself is it indefinite or is it the question of not being able to determine by public notice what it means so it's not enabled. No, I think you can. The indefinite standard for us is whether after applying the normal tools or instructions you can figure out what it means. The normal tools of instruction omitted you get away from the word by itself and the most common dictionary definition just points overwhelmingly to what we're, you know, the bearing. But your argument is premise totally on the column six type of analysis of figure five. Well, it's two things. The column six and figure five in this specification and then confirmed by the prosecution history where we say heading is the point in meaning and use the term. I don't know what is it five times in that paragraph. The court, as you know, is said on a number of occasions sometimes the prosecution history can be pointedly clear about what the baddies meant. I think if there's ever such a case this is such a case

. So it's not. It didn't pop up for the very first time. But one indication that there was a little bit more looseness about this bearing heading usage and we might be assuming here is that universal and its reply group here says well you talked a little bit about the heading of the runway and it says well that can mean only one thing because as it says a runway doesn't have a bearing. Well, it doesn't have a heading either. It has been aligned. But of course in its own software it uses the term bearing of the runway. These are not terms that like black and white have meanings that are obviously universally and sort of fixively opposite to one another. And that's what I think accounts for the unmistakable reality of this prosecution history together with this specification in which they're talking about appointing meaning and using the term heading. But as it was an understandable mistake of usage if one takes the normal the most normal usage as as the only usage then you would call it a mistake. But it was a perfectly clear mistake about what was intended. What I was suggesting is it may not be as clear a mistake as all of that. What the misuse of the term heading meaning bearing we all know what bearing means a reference or fixed point. Now what happens in the claim itself is it indefinite or is it the question of not being able to determine by public notice what it means so it's not enabled. No, I think you can. The indefinite standard for us is whether after applying the normal tools or instructions you can figure out what it means. The normal tools of instruction omitted you get away from the word by itself and the most common dictionary definition just points overwhelmingly to what we're, you know, the bearing. But your argument is premise totally on the column six type of analysis of figure five. Well, it's two things. The column six and figure five in this specification and then confirmed by the prosecution history where we say heading is the point in meaning and use the term. I don't know what is it five times in that paragraph. The court, as you know, is said on a number of occasions sometimes the prosecution history can be pointedly clear about what the baddies meant. I think if there's ever such a case this is such a case. Well, this is not blinding on clear even from the prosecution history. I think as Judge Plager points out you have to really tease it out completely from the prosecution history. You have to go back and forth in order to make a determination to what it means. I don't really don't think so. I think if you just read it in sequence the only thing that the other side really has gone for it is the examiner's initial assumption. And that initial assumption got corrected by the applicants who said when we're putting this word heading in this is what we mean by it. We believe the position meaning and you don't have to worry about adding something to the sensing devices because it's right there. It's the sensing device namely the longitudinal attitude sensing devices that say now I know where I am. I know where the airport is. There's a line between those two things connect that line to a reference statement true north and you have an angle. That's the angle we're looking for. So I think after that initial examiner assumption I don't think there's anything clear about that at all. I don't want to see Carlson but they do have one other thing going for him besides the examiner's initial assumption and that is the language of the claim. One case in which one has to go beyond the first blotch dictionary definition to say something quite different is made clear by the spec in prosecution history. That's the first one. Let me if I may pick up just something that I think Judge Bryson was reaching for and I'm not sure we quite focused it. Who was it first initiated the use of the term heading that is does the prosecution history indicate that the examiner said I don't know what you mean by the what you've got here. And then was it the prosecuting attorney whatever you want to call that person who came back and said oh what we mean is heading. Was that the sequences you understand it or was it the examiner who came up with the word heading. I don't know Judge Bryson if that's where you were reaching with your earlier question but I thought that was point. Do you happen to have a clear sense of that. Not as clear as I should

. Well, this is not blinding on clear even from the prosecution history. I think as Judge Plager points out you have to really tease it out completely from the prosecution history. You have to go back and forth in order to make a determination to what it means. I don't really don't think so. I think if you just read it in sequence the only thing that the other side really has gone for it is the examiner's initial assumption. And that initial assumption got corrected by the applicants who said when we're putting this word heading in this is what we mean by it. We believe the position meaning and you don't have to worry about adding something to the sensing devices because it's right there. It's the sensing device namely the longitudinal attitude sensing devices that say now I know where I am. I know where the airport is. There's a line between those two things connect that line to a reference statement true north and you have an angle. That's the angle we're looking for. So I think after that initial examiner assumption I don't think there's anything clear about that at all. I don't want to see Carlson but they do have one other thing going for him besides the examiner's initial assumption and that is the language of the claim. One case in which one has to go beyond the first blotch dictionary definition to say something quite different is made clear by the spec in prosecution history. That's the first one. Let me if I may pick up just something that I think Judge Bryson was reaching for and I'm not sure we quite focused it. Who was it first initiated the use of the term heading that is does the prosecution history indicate that the examiner said I don't know what you mean by the what you've got here. And then was it the prosecuting attorney whatever you want to call that person who came back and said oh what we mean is heading. Was that the sequences you understand it or was it the examiner who came up with the word heading. I don't know Judge Bryson if that's where you were reaching with your earlier question but I thought that was point. Do you happen to have a clear sense of that. Not as clear as I should. The term heading is in some of the original claims. So the examiner didn't introduce it into the cabinet as a whole. It's not an original claim for team and his original marks about claim 14 at 180 don't use the term and say here's what I think he ought to be doing. There is a brief reference although I'm not sure this is really what count as the examiner suggesting in any way that term hasn't been used but there is a reference at 183. Debatement which the examiner characterizes as referencing runway course direction heading and locate localizer deviation. That I think is the basis on which the second thing universal has going forward on this argument that is the basis for it. Mainly the reference debatement which if you go and look at the payment which put into this thing this direction record you will see. The statement there used heading in the point in the sense that's the basis on which I think it is reasonable say the examiner initially had in mind the ordinary pointing meaning of heading. It's everything that happened there after that that says no no no we don't have that in our written description of what this invention is doing. Do you think the examiner then came around and is thinking is that what you're saying. Or are you saying it doesn't really matter what the examiner thought. I think I would say actually both that it doesn't really matter once unless for some reason the examiner actually said no no no I disagree with you I'm going to accept your claim giving you a different interpretation from the one that you met me clearly but he didn't know what I'm going to think like that. What he did was he said how about if he said I won't approve this claim unless it says heading in the ordinary sense. Then we would have had an interesting question about whether to accept that amendment and whether that would have risked a written description or lack of enablement objection. That's all the kind of stuff that of course never heard because when he did accept the amendment he understood perfectly well and what was being put into the claim was intended to reflect what was in the written description from the beginning which is the positional meaning and not the point. Did you have any other points. Let me very briefly if you could. Yeah two very quick things. We don't of course agree that if for some reason heading got interpreted heading comes claim construction got reversed that judgment as a matter of law would be entered for us we at least have a doctor who would want to claim which never got to be presented or had to be ruled on because the district judges some regent said why adopt this meeting with headings my never been needed. What we have a problem though with doctor of equivalence if we read heading in the traditional sense the normal sense we would be happy to litigate that that has not been located and it's conceivable that we would lose on that but that has not been I hear you cannot. And I guess the only other thing I would say on the ground proximity warning system it seems to me that the specification never says doing this by reference to the FAA said that approved systems in existence at the time of course the FAA would approve on a constant lonely basis any number of new systems it never capitalizes the firm ground proximity warning system in fact breaks it up into its component pieces and it says that it is not a good thing to do. So that is in terms and I think we quote all of this around page 31 of our brief over and over again this applies to any warning system and when we amended in the prosecution to claim the warning system to a claim to ground proximity warning system back didn't have been it downing and it to say here's the kind of danger that the warning system is going to warrant and then you're too close to the ground not to a fixed set of the body was at the time

. The term heading is in some of the original claims. So the examiner didn't introduce it into the cabinet as a whole. It's not an original claim for team and his original marks about claim 14 at 180 don't use the term and say here's what I think he ought to be doing. There is a brief reference although I'm not sure this is really what count as the examiner suggesting in any way that term hasn't been used but there is a reference at 183. Debatement which the examiner characterizes as referencing runway course direction heading and locate localizer deviation. That I think is the basis on which the second thing universal has going forward on this argument that is the basis for it. Mainly the reference debatement which if you go and look at the payment which put into this thing this direction record you will see. The statement there used heading in the point in the sense that's the basis on which I think it is reasonable say the examiner initially had in mind the ordinary pointing meaning of heading. It's everything that happened there after that that says no no no we don't have that in our written description of what this invention is doing. Do you think the examiner then came around and is thinking is that what you're saying. Or are you saying it doesn't really matter what the examiner thought. I think I would say actually both that it doesn't really matter once unless for some reason the examiner actually said no no no I disagree with you I'm going to accept your claim giving you a different interpretation from the one that you met me clearly but he didn't know what I'm going to think like that. What he did was he said how about if he said I won't approve this claim unless it says heading in the ordinary sense. Then we would have had an interesting question about whether to accept that amendment and whether that would have risked a written description or lack of enablement objection. That's all the kind of stuff that of course never heard because when he did accept the amendment he understood perfectly well and what was being put into the claim was intended to reflect what was in the written description from the beginning which is the positional meaning and not the point. Did you have any other points. Let me very briefly if you could. Yeah two very quick things. We don't of course agree that if for some reason heading got interpreted heading comes claim construction got reversed that judgment as a matter of law would be entered for us we at least have a doctor who would want to claim which never got to be presented or had to be ruled on because the district judges some regent said why adopt this meeting with headings my never been needed. What we have a problem though with doctor of equivalence if we read heading in the traditional sense the normal sense we would be happy to litigate that that has not been located and it's conceivable that we would lose on that but that has not been I hear you cannot. And I guess the only other thing I would say on the ground proximity warning system it seems to me that the specification never says doing this by reference to the FAA said that approved systems in existence at the time of course the FAA would approve on a constant lonely basis any number of new systems it never capitalizes the firm ground proximity warning system in fact breaks it up into its component pieces and it says that it is not a good thing to do. So that is in terms and I think we quote all of this around page 31 of our brief over and over again this applies to any warning system and when we amended in the prosecution to claim the warning system to a claim to ground proximity warning system back didn't have been it downing and it to say here's the kind of danger that the warning system is going to warrant and then you're too close to the ground not to a fixed set of the body was at the time. Thank you Mr Toronto. Mr. Fulick we've gone over a bit we will give you your five minutes and if you need a little more time than that in fairness we'll extend your time. Thank you very much Your Honor I don't think I will a couple points I just want to make on this prosecution history issue because I think it's important to understand the sequence and some things happen as the court points out it early in the process. There is a question history when the exam or originally rejected claim for to this and they amended to add heading of the aircraft the exam are document allowed claim for to be accepted the allowance of claim for to be accepted. But the word heading at least in the context of claim for to was came from the applicants not from the examiner. Yes, not at that point at least. Exactly, but he already said, which way does that cut by? Well, where it cuts is, you can't then say, oh, well, then afterwards, if you claim 21, the other claims, all of a sudden the examiner had a different understanding of what heading meant. Because now you're interpreting the claim that he allowed earlier, differently, from the claim that he allowed later. And that was the whole point. He said, I'm not going to give you claim 21 because it doesn't say heading yet. I gave you claim 14 because you've amended to recite heading and I know what that means. I'm not going to give you 21 until you amended to light claim, and add heading. They said, oh, we don't have to do that because here's the specification. So I'm going to say, uh-uh, amend the claim to say heading and you can get that claim like the earlier one. And that's what they did. So to say, oh, well, we had a different understanding of earlier when they allowed to claim 14, and they accepted it, then when they allowed to claim 21, they accepted it, says, OK, when you turned to two claims that use the same words differently. I don't think you can do that. The other issue about holding claim or would have recognized that we didn't disclose. Mr. Pollock, was it claim 14 allowed after the datum language was dropped? Yes. And heading was in

. Thank you Mr Toronto. Mr. Fulick we've gone over a bit we will give you your five minutes and if you need a little more time than that in fairness we'll extend your time. Thank you very much Your Honor I don't think I will a couple points I just want to make on this prosecution history issue because I think it's important to understand the sequence and some things happen as the court points out it early in the process. There is a question history when the exam or originally rejected claim for to this and they amended to add heading of the aircraft the exam are document allowed claim for to be accepted the allowance of claim for to be accepted. But the word heading at least in the context of claim for to was came from the applicants not from the examiner. Yes, not at that point at least. Exactly, but he already said, which way does that cut by? Well, where it cuts is, you can't then say, oh, well, then afterwards, if you claim 21, the other claims, all of a sudden the examiner had a different understanding of what heading meant. Because now you're interpreting the claim that he allowed earlier, differently, from the claim that he allowed later. And that was the whole point. He said, I'm not going to give you claim 21 because it doesn't say heading yet. I gave you claim 14 because you've amended to recite heading and I know what that means. I'm not going to give you 21 until you amended to light claim, and add heading. They said, oh, we don't have to do that because here's the specification. So I'm going to say, uh-uh, amend the claim to say heading and you can get that claim like the earlier one. And that's what they did. So to say, oh, well, we had a different understanding of earlier when they allowed to claim 14, and they accepted it, then when they allowed to claim 21, they accepted it, says, OK, when you turned to two claims that use the same words differently. I don't think you can do that. The other issue about holding claim or would have recognized that we didn't disclose. Mr. Pollock, was it claim 14 allowed after the datum language was dropped? Yes. And heading was in. And heading to have before this discussion about the specification curve. Inspired of that, what if the examiner misunderstood the meaning of the term heading as judge, price and money, that's some problems with? What happens if, in fact, he misunderstood it? Well, I think that the examiner's misunderstanding creates that says he's a person of ordinary skills who's there to be. His understanding is a reasonable interpretation of that claim language. That means that that's a reasonable interpretation on the part of the person of ordinary skills leading the claim subsequently. He says, I agree with the examiner, but that's what it means. And therefore, that's why the claim-wormary means you control here, because you can't expect a competitor to read this file and say, oh, well, the examiner was wrong. Plenty well means this, especially. You just can't expect the person of ordinary skill to come up with that answer if the examiner himself was mistaken. Except that to the extent that you're relying on remarks made by and requirements imposed by the examiner prior to the later statements, such as the one on 270, and that would include both 14 and 21, then the examiner at the time he advanced a particular view, didn't have the benefit of what he was told later. Well, again, I mean, it seems to be that the applicant then benefited when he had one understanding, and changed his understanding, benefited again, created a, they're by themselves, created this problem in the file. Let me ask the question this way. And we're sort of buzzing around the issue and asking in different ways, but it's a difficult question. Suppose that on 8 270, instead of going through a paragraph in which the math is discussed, and one comes to the conclusion at the end that they're really talking about varying, even though they're using the term, suppose that in place of that, there had been one simple sentence which said, so far there's been some confusion about our use of the term. We are using the term heading to mean what is conventionally known as varying period. Would you be satisfied that that would solve the problem of this case and that put harshly you would lose? Well, yeah, but put a paragraph. Okay, but you say that's not what happened. Even if the examiner later said, put heading in there. But that's not what happened. All right, and if that had happened, then competitors could have seen that and could have designed their systems, not use varying to avoid the interest of the term. Even if they haven't been clever enough to go pick up the prosecution history and so forth, one is charged with notice of the prosecution. That's right. So what this case comes down to is, is 8 270

. And heading to have before this discussion about the specification curve. Inspired of that, what if the examiner misunderstood the meaning of the term heading as judge, price and money, that's some problems with? What happens if, in fact, he misunderstood it? Well, I think that the examiner's misunderstanding creates that says he's a person of ordinary skills who's there to be. His understanding is a reasonable interpretation of that claim language. That means that that's a reasonable interpretation on the part of the person of ordinary skills leading the claim subsequently. He says, I agree with the examiner, but that's what it means. And therefore, that's why the claim-wormary means you control here, because you can't expect a competitor to read this file and say, oh, well, the examiner was wrong. Plenty well means this, especially. You just can't expect the person of ordinary skill to come up with that answer if the examiner himself was mistaken. Except that to the extent that you're relying on remarks made by and requirements imposed by the examiner prior to the later statements, such as the one on 270, and that would include both 14 and 21, then the examiner at the time he advanced a particular view, didn't have the benefit of what he was told later. Well, again, I mean, it seems to be that the applicant then benefited when he had one understanding, and changed his understanding, benefited again, created a, they're by themselves, created this problem in the file. Let me ask the question this way. And we're sort of buzzing around the issue and asking in different ways, but it's a difficult question. Suppose that on 8 270, instead of going through a paragraph in which the math is discussed, and one comes to the conclusion at the end that they're really talking about varying, even though they're using the term, suppose that in place of that, there had been one simple sentence which said, so far there's been some confusion about our use of the term. We are using the term heading to mean what is conventionally known as varying period. Would you be satisfied that that would solve the problem of this case and that put harshly you would lose? Well, yeah, but put a paragraph. Okay, but you say that's not what happened. Even if the examiner later said, put heading in there. But that's not what happened. All right, and if that had happened, then competitors could have seen that and could have designed their systems, not use varying to avoid the interest of the term. Even if they haven't been clever enough to go pick up the prosecution history and so forth, one is charged with notice of the prosecution. That's right. So what this case comes down to is, is 8 270. The functional equivalent of saying heading equals bearing. And if we conclude that it is, if read in the entire, not by itself, but read in the entire, yes. Okay, I don't disagree with that. One last point, and I know this point that the examiner would have recognized immediately that you didn't disclose bearing and therefore you were claiming lack of description, et cetera. I pointed that earlier in the prosecution, the examiner rejected the claim. And didn't disclose heading. Didn't disclose heading in this fact. The examiner rejected the claim in view of Baylor and said that heading was known and that determining alignment based on heading would have been obvious to a person who were nearer scale. That says that the examiner believed that reciting heading by heading in its pointing sense in the claim was sufficient for a person who were nearer still to understand the claim and to actually practice the invention regardless of the lack of disclosure in this fact. But that's a different kind of alignment, right? I mean, you can't have the bearing type alignment that's described in column six, just by knowing, cutting, and the pointing direction of being in the air. But you can have alignment. But it's a different kind of alignment. It's a different kind of alignment. It's the alignment in which the plane is here and the airport is there. So they're not lined up like this. It's the alignment of the directional travel with runway versus the location. But to the extent that we conclude from the patent itself that the term alignment is being used to mean this, not this or even this. Well, that would, that term would not, and that the basement wouldn't satisfy that, right? Well, again, it comes circular because it comes back to alignment in terms of heading. Well, but even if we never get to heading, just the patent, the specification doesn't use the term heading. So there's some question as to how alignment. But alignment by itself is, as we're already pointed out, is indeterminate. If you all you say is alignment, you need to determine the alignment of the aircraft with the runway

. The functional equivalent of saying heading equals bearing. And if we conclude that it is, if read in the entire, not by itself, but read in the entire, yes. Okay, I don't disagree with that. One last point, and I know this point that the examiner would have recognized immediately that you didn't disclose bearing and therefore you were claiming lack of description, et cetera. I pointed that earlier in the prosecution, the examiner rejected the claim. And didn't disclose heading. Didn't disclose heading in this fact. The examiner rejected the claim in view of Baylor and said that heading was known and that determining alignment based on heading would have been obvious to a person who were nearer scale. That says that the examiner believed that reciting heading by heading in its pointing sense in the claim was sufficient for a person who were nearer still to understand the claim and to actually practice the invention regardless of the lack of disclosure in this fact. But that's a different kind of alignment, right? I mean, you can't have the bearing type alignment that's described in column six, just by knowing, cutting, and the pointing direction of being in the air. But you can have alignment. But it's a different kind of alignment. It's a different kind of alignment. It's the alignment in which the plane is here and the airport is there. So they're not lined up like this. It's the alignment of the directional travel with runway versus the location. But to the extent that we conclude from the patent itself that the term alignment is being used to mean this, not this or even this. Well, that would, that term would not, and that the basement wouldn't satisfy that, right? Well, again, it comes circular because it comes back to alignment in terms of heading. Well, but even if we never get to heading, just the patent, the specification doesn't use the term heading. So there's some question as to how alignment. But alignment by itself is, as we're already pointed out, is indeterminate. If you all you say is alignment, you need to determine the alignment of the aircraft with the runway. You don't have enough specificity, which is why the examiner at the beginning said, if you tell me what kind of alignment you're talking about. But the spec does seem, does it not, to give us more guidance as to what alignment means than it does what heading means. Because we do have alignment used and we have it at the end of the end. There's a kind of alignment. In the math, there's a kind of alignment that's close to the spec. And it's not both of them are moving north-south. That's correct. Okay. Very well. Well, I think, thanks very much for the talk. I appreciate both counsel for a very helpful answer.

Afternoon. This afternoon we have three cases on for argument. These be assured that we have read your briefs and we are familiar with your arguments that you should go directly to the points that you want to impress upon us. But those who may not be familiar with our lighting system, when your yellow light goes on you are beginning to consume your rebuttal time. When the red light goes on you are out of time. We will hear argument first in number 06, 1406, Honeywell International Against Universal Aveonics. Mr. Pollock. Please the court. My name is Howard Pollock. I'm the official Richardson. I'm representing Universal Aveonics. This is court. We believe, Universal believes, that this appeal presents what Universal thinks are three errors of claim construction related to the Asserted 436 patent. And in one of which, if corrected by this court, would compel the conclusion that there's no infringement of the Honeywell patent. I'd like to briefly touch on them all if I can. I'm a lot of them, but I'm going to start with the head and construction issue, because I think it's the most clear cut. This court's authority has established, based on the no dysfunction of patent claims, presumption that words in a patent claim are given their ordinary meaning to what a ordinary stillness are at the time of the invention. In this case, Mr. Pollock, I don't want to preempt your argument. But let me, you could help me on something. I think I know what our precedents say. All these various things, thank you very much. What I don't know is the way in which the Honeywell terrain thing operates. The red brief, which is your brief, I believe, gives a very nice explanation of the Taws technology. So I think I understand what Taws does. But nowhere in either of these briefs or anywhere else do I get any clear sense of exactly what it is that Honeywell thought it was inventing that in effect did what I suppose Taws does, which is tell the pilot that he's about to hear, she's about to hit a tree in front of the runway instead of past the runway. How do they work? Actually, Your Honor, I would like to address that because it presents what I think is a misconception in what the invention is. The invention is not about warning the pilot as to when they might, as you say, run into the terrain. The invention is about providing a mechanism to enable to turn on an alerting system based on a characteristic that was never used as part of the alerting system as of that time. The systems that were at the state of the hour at the time rely on things like altitude and change of rate of altitude, etc. To tell the pilot, hey, you might be getting close to the terrain. They rely on also a flap and gear indication, which was a flip that switched the pilot flip to say, I am going to be approaching the airport now, so change the characteristics of the warning system. When it goes to 40 degrees flaps, the airplane knows, hey, I'm going to land. They don't do that so much. They don't do that anymore. So he needs a different way to tell the airplane you're getting ready to land. Exactly. To enable certain aspects of the warning systems. And the proxy that this invention came up with is we are going to look to see whether we're close to the airport based on our distance. If we're within a certain distance we're going to presume, hey, we might be landing at the airport. And it also looks at an alignment estimation to determine whether I'm aligned sufficiently with the runway to also presume that the airplane is going to intend to land. Why does it need that? How about if it's overflying the airport at 5,000 feet? The distance between the aircraft and the airport is now a mile. Well, that's well within the envelope of, what is it, 12 miles, whatever the envelope is. How does the aircraft understand that it is not landing when it's within a mile of the airport, but it's at 5,000 feet? And it right angles to the runway. That is an additional aspect of these systems that's not dealt with by this invention. In fact, in the, an additional limitation as it were that you would add on is you have an altitude cutoff that would also be factored in to determine if I'm above the airport, but, you know, as you said, 5,000 feet above the airport, it's not likely that I'm going to land. It's actually very complicated algorithm because in certain cases you might be circling to land. And so there are different kinds of approaches. So this invention doesn't deal with every situation. It dealt with a stack, a soft gap measure as it were to deal with the existing ground proximity warning systems and add a mechanism to deal with this flash ambiguity problem, which was the flash no longer reliably indicate whether I'm going to land. Well, why is it bearing as good an indicator as heading? It might be an alternative, but that's the question is what is the claim recite? The claim recites the use of heading? Well, we know what the claim recites, but we don't know, or I don't know, is what the claim means. I think that's the issue before us. And the issue is, as we believe, it's one of ordinary skill understands what heading means. But why is heading important to their, why is heading important to them, and why don't you use heading? Heading is important because heading is one measure of alignment. Heading means that the plane is pointing in a certain direction. And by looking at that angle I'm pointing and comparing it to the angle to runway, I can determine whether I'm lined up with the runway. Well, not quite. But eventually, you know, you've been... Eventually aren't you going to have a heading and a bearing at the same time? Well, you always have to. One in the same, right? One you're landing? Technically, when you're landing, you're bearing to the airport. And they don't have any real relationship to the heading of the runway, because you'll be at the airport. But just before you... So, at that point, the heading and the bearing would be the same? Could be. Could be. The issue here is the choice that the plane makes. If the case, of course, in which the heading doesn't give you the information you need is a case in which you have, for example, a north-south runway, and a plane which is 30 miles to the west flying to north. Same head. Using the term in the ordinary sensor. Exactly. Without prejudicing the argument that that's not the way it's used in the pattern. But here's my question. It really goes to the paragraph you're very familiar with on column 6, starting at line 6. And it talks about essentially the math of how we work through a line 6. At the end of that, I come out with a pretty high degree of confidence that alignment is not talking about the conventional notion of heading. IE, which direction a plane which is in a particular place may be pointing, but rather what is the physical location of the plane? Now, if that's true, then it seems to me the only way you win this case is to say that the claim is about an embodiment that isn't discussed and that embodiment is not in the plane. Is that fair? That's my problem. I believe that the claim is about an embodiment that may not be expressly discussed in the specification. Certainly consistent with what's in the specification. The claim is not preclude using bearing as a measure of alignment. It doesn't require it. And I submit to you, you've all picked up on this very important thing, which is to actually solve the problem 100%. You would probably want to take into account the goal. Because of bearing and I apologize when it turns to the side, I know at the same bearing to the bench as I was a moment ago, but I'm finding another direction as it were. So my bearing might not be an accurate indicator of whether I approach an invention to land. Because it doesn't tell you what direction you're flying and when it tells you where you are physically at that moment. So let me ask you this question. I skipped over the middle step. I want to make sure I understand where you are in this. Do you think that paragraph of the specification describes alignment? It doesn't use the word heading nor the word bearing. But do you think it is describing alignment in terms of bearing? Yes. Again. So your interpretation of the claim would say that claim language does not refer back to that embodiment and to the extent that the claim refers to what we conventionally call headed. That is not present in the specification. I think it's clear from the discussion in the prosecution history that that's exactly what the claim means. Because the patent team brought up that proportion when the examiner said, hey, your claim isn't sufficient because it doesn't address what you say you're using for alignment, which is heading. The patent team came back and said, oh no, look in the spec. The examiner repeated his rejection and said, no, in fact, the spec doesn't answer the question. If you want to do alignment in terms of heading, you need to recite heading in the claim. Honeywell, a man that declaimed recite heading and the examiner allowed the class. But this was in the context of a discussion by Honeywell. Again, I know you're familiar with this page, but I think it's 8.270. In which Honeywell kind of bridges the last portion of the gap, which wasn't bridged in the spec, in which specifically identifies heading as being part of this arithmetic of, actually, I guess, trigonometric calculation that's done, which we've just determined really means bearing. So I read that and I say, okay, if columns 6 meet and don't worry about your time, we'll give you extra time because we're pestering you with questions and we'll do the same for Mr. Toronto. But if that paragraph is all about bearing, and the prosecution history is all about the trigonometry of that, in terms of that passage, in the same trigonometry, Arctan and the same devices, and calls the determined heading, haven't we established the meaning of heading for purposes of this pattern? No, okay. And I believe that you can't look at that passage in isolation. You have to look at it in the context of what went before and what kind comes after, as I just explained. And let me submit to the part this, because I didn't appreciate it early on. This issue of heading, it's a person of ordinary skill, this is a black and white issue. And really, as I said, a black widget, and everything in the spec described white widgets. Personal warrior skill would read the claim and say, I know what the black means. And the fact that the spec doesn't say, by using the term black, meaning white, unless it's that clear, personal warrior skill would read black to mean black. And I was told by someone who have ordinary skill in avionics, in navigation, heading means heading, and unless you tell me expressly you're using it to mean something else, I wouldn't interpret it to mean heading. Yeah, but the calculation though, let's describe not only in column six, but also in the response to the rejection. I'm talking about page a 272 71. It really speaks to a particular bearing, doesn't it? It does. Even though at the end of the, the heading of the aircraft is determined by the circuitry, which is block 46, 47, 48, a figure five. Yes. And I believe the examiner's response by saying, I still reject the claimants. You need to recite heading if you want heading to be what is the way it wanted to determine by claiming the claim and reciting heading as the examiner understood it. Honeywell adopted the claim normer. But the examiner then on June 5, which is a 8276 states, but it appears that in order to be operational, the aircraft heading inputs would have the necessary and so much inputs and, and no such inputs acclaimed. So that's when they put the heading requirement in the claim. Exactly. So from that perspective, isn't it still a bearing at that point? Is it they describing a bearing instead of a heading? No, no, they're using the term heading. No, because I mean, if the examiner understood that, what after their response, he would have said, okay, then your recitation and bearing is taken to mean heading. And therefore, he already recited that. But he didn't take that. He said, look, I am saying that when you have not recited the claim, the claim says we wanted to determine alignment. At that time, it said we wanted to determine alignment based on the heading of the aircraft. He said, you need to recite something that says you have that information, a man that claimed the way you wrote the first one. And if you do that to expressly recite heading inputs, then I will allow the claim, because it now is operational. I know what heading means. But figure five, though, if you put all of the mathematical inputs into it, you'll come up with a bearing. Figure five implementation shows a bearing capital. What do we do, as in my hypothetical case, the examiner and the applicant, or at least the lawyers for the applicant, which is probably the problem? The lawyers and the examiner were just not on the same page. So there's no evidence, at least to my eye at this point, that the lawyers acquiesced in an understanding of what heading meant that was contrary to the understanding that was events done in page A270 shortly before that. What do we do if the examiner was assuming heading that one thing, and the prosecuting attorneys were assuming that heading was both understood to mean and was being consistently used to mean something else? What does that tell us about how we ought to try to make a contribution? The definition and the advocate says that when the intrinsic evidence sets up an ambiguity, that you don't have the necessary clear and deliberate indication that a conventional term is being redefined, and you have to default, because the public has to rely on plain or narrating it into a personal or a new skill at the same time. But ambiguity is a little bit different from the problem from the one I'm trying to describe. But I'm trying to describe a situation in which, as far as the patent is concerned, and let's say hypothetically, I know you don't subscribe to this fully, but suppose that if a person were to walk in without any knowledge of the back and forth with the examiner and so forth, but just were to read the specification. And were to read the statements made, for example, in 270, that person would be completely convinced that the word heading was being used to mean bearing. So as far as the extrinsic evidence up to that point was concerned, unlike the examiner, that person would be certain that this patent described a bearing and called it a heading. That's by hypothesis. In that situation, where the examiner then comes back and says, no, you must add something with respect to heading. And let's assume we know somehow that the examiner was operating under the assumption that heading was being used in its conventional sense. Does that now change the meaning of the word in the patent? I believe it does. When the applicant then amends the claim, consistent with what you say. Does change the meaning of the word in the claim that is... From what I am misled, my question was on the paper. From the meaning that I'm hypothetically giving it to the chance of the right time, not the natural meaning of the term. Yes. I think we're on the same wavelength. I think that you have to conclude that the applicant's adding in terminology that the examiner asked for at that point in time to the claim that we're under the understanding of the examiner is the one that controls. I know I'm well over my time. There's just one short point I'd like to make on the roundabout assembly warning system. Which is that I believe you can't interpret that terminology as four separate words with plain English meanings mashed together. I think you have to look at it as a term of art. I think that as we discussed the evidence, the record shows that there was an established meaning to those four words used together. When you said for Alaproximate Warning System at the time, it's, oh yeah, that's TSOC92. We know what that means. The FAF is mandated. It's not four plain English words as any well as a term. Answer one more question while you're standing before us at the moment. And that is assuming we conclude that heading and claim one means heading in the conventional sense. How does that help you? Because there's no dispute that the system that's being accused of infringement does not use heading in any form. Okay, that's what I needed to understand. Thank you. Very well. When are we, were you done with that second point? I was done with that second point. If there are questions when I come back on the enable disabled issue, which I'll be happy to answer them. Okay, why don't we do this? We'll give you your full rebuttal time. And then if you could add in this time, you could add eight minutes to Mr. Toronto's time. Because I think you're well, eight and a half minutes. Thank you. Mr. Toronto, I think I may have started out accusing Mr. Pollock of having written the red brief and I apologize to both of you today. Actually, I found your red brief helpful in a couple of issues. One of them is, as I say, the explanation of the pause system, which was interesting and understandable. Curious that you never explained, you never really explained your own system. But maybe that's because it's inexplicable. But putting that aside for the moment. The debate thus far, the discussion thus far, suggests, and I want to see if you agree with it, that there is an inherent incompatibility between the written description that appears in this particular patent and the actual plain meaning, normal understanding of claim one. You agree that that's true. I agree except that I certainly would be normal or narrow meaning how plain and black and white it is. I think it is maybe a separate question. Sure. But there's no dispute that the starting point of those skill in the art reading the heading is what we ordinarily refer to as bearing. And that the written description seems to clearly be thinking in terms of bearing. I think on the stake of the list. I think on the stake of the list. All right. Now, if I may, let me focus on what is causing me the biggest problem with your side of the case. And that is if you look at the office action of February 25th, this is page A180 of the prosecutor of the appendix. The examiner, and this comes back to our presiding judge, Bryson's insightful question at the very end. What do we do when the examiner has one thought in his head and the prosecuting attorney has entirely different one. We'll come back to that in a minute. But here's why it seems to me clear that the examiner was thinking of something else because the examiner says on page A180. In Claim 14, it is unclear how a runway is compared to a datum or how alignment with a runway is sent. In response to that, if you look on page A242, you'll see the response by the attorney who's trying to get this patent approved. The attorney says, Claim 14 is been, this is the bottom of page A242. Claim 14 has been rejected because the examiner believes it is unclear how a runway is compared to a datum or how alignment with a runway is sent. Claim 14 has been amended to delete datum and recite a source of signals representative of the relative angular position of a particular runway with respect underlined to the heading of the aircraft. Now, if you do one further thing, which I've done because you so nicely sub-paragraph Claim 14 in your brief, if you pay sub-paragraph 5 of Claim 14, and you substitute the trial judge's definition verbatim definition of heading for the word heading in paragraph sub-5. This is what you get. Means responsive to said first and second sources of signals for providing a signal representative of the alignment of the aircraft with the runway and the angle formed by the line connecting the aircraft position and the airport and a reference datum. Now, in using her definition of heading, she's put datum back in, which is exactly what the examiner said, you have to take out. And secondly, she's put in a definition that makes no sense because it says the alignment of the aircraft with the runway and one, the angle formed by the line connecting the aircraft position and two, the airport and three, a reference datum. Well, you can't have a line that's described in that way that makes any sense at all because there's nothing that explains how you do that line. And I think that's what the examiner was troubled by. So it seems to me when the examiner said put in heading the examiner had a totally different concept, but that's what the examiner got. Let me see if I can work with that. The reference datum that you were talking about is north. So you don't have three points to make a line. You have two points to make a line compared to the reference datum and that's what makes the angle. Too bending and putting in north, this case probably never probably would have to make a demand. It's a private reference. There's let me remind you that the examiner said, I don't know what reference datum mean. Yeah, that's unfortunate. And you took it out. You said, okay, we'll take out reference datum and guess what we put in? We put in heading. The examiner unquestionably started with remarks that are reasonably understood to reflect his understanding at the outset of heading in the ordinary sense. But that's only where it started. What happened after that was, that's the 180 series that you're talking about. And then we get our response in the 240 series. And if you turn a couple of pages later after 242, which you mentioned, all is part of the same set of remarks on 244. We're now talking about playing 21, same kind of alignment language. And we say, here's what heading is, look at column six. I'm using column six here as the substitute for the page numbers in the application. So look at column six. That's the first place where we say to the examiner, here's what we mean by heading. Okay, I think 2.5 is what we call. That's the page underneath. Right, 2.4.5. We call it in our room. Okay, so that's what we do. A back point, the examiner, never repeats his initial assumption, which which are grant, what are you calling? Well, that we were using initial initial, his initial assumption, we were using heading to mean the pointing meaning, not the positional meaning. After that, he says, you need to put some stuff about heading in the claims. And then, and the next round then is what appears at 272.7. We're not where I think it couldn't be clear, where we're saying heading is the positional meaning, not the pointing. So, I don't dispute that if you ask the question, what is the most likely assumption the examiner had at the very beginning of the process that the answer would be the pointing meaning. But that was only the beginning of the process. And what happened thereafter, it seems to me, it just made it unmistakable that the usage we were engaged in was the positional. Let me invite you to look at a 256, which now takes place in December of 88. This is the office action back in December, I believe. In which the examiner says, in claim 21, determining means are said to find aircraft alignment with respect to a runway based on runway heading and latitude and longitude data. However, it appears that in order to operate the means would also have to receive inputs from an aircraft heading sensing device. In claim 24, I think it's an it rather than is in claim 24, it appears that aircraft alignment could not be found without aircraft heading inputs. Language is used in amended claims 14 and 19, it suggested to rectify this problem. So, almost a year later, the examiner is still saying, hey guys, I meant what I said back in February, please put in heading. I probably overstated the matter when I said that, because the first reference at 244, 245 or heading was built into a discussion of alignment. It is in response to the one that you just mentioned 256 that we didn't set forth, what's it 278, 278, 278. What's troubling me is, I was troubling me is exactly the point that Judge Bryson focuses on and that is it's clearly examiner had a different picture than his head. Initially, because he didn't register. I'm not convinced he ever let go of it. If he had thought that what we were claiming was a point in meaning, the first thing he would have said is, where is this in anywhere in the written description and I think it's all agreed here now. There is no reference anywhere in the written description to use of appointing me anywhere. The entire written description of what we invented is about the positional need. The word heading never appears. That's right, the word heading doesn't appear in the specific case. Which is why I'm amazed that you're prosecuting attorney accepted this. Accepted. Accepted. Accepted. Examiners existence that heading be put in since it never appeared anywhere in his written description. I think it is plain from the prosecution history that the examining the prosecuting attorney and at least one of the inventors who was taking the lead here on this, in fact thought that heading meant the positional need. They said it first at the 244 place and then again in explicit detail, the 272 71 place. So that by the time the amendments were put in place in the exam, they said, okay now I see how you can have a claim to ahead in without a sensing device to sense the point in direction. He accepted the amendment. That's why it seems to me short of a legal requirement that says by his word we mean X when the normal meaning is Y, this has got to be a case where any skilled reader would read the packet in light of the specification and the prosecution history and say it's perfectly clear what this invention was claimed. Am I correct? Am I correct in concluding that the first time the word heading at least as pertains to this patent directly shows up is on 242, which is the point at which the datum language has been objected to and the substitution is heading. That was not I take it that that language was not an examiner's suggestion was at that point. I know he made the later suggested but I thought at this point, I had the impression that when that first change was made to go from datum to heading in claim 14, which became one, that that was the first time it popped up. Is that right? Is that your I think that's the that's the first time it popped up in thing 14 that the word is used in some of the original claims. So it's not. It didn't pop up for the very first time. But one indication that there was a little bit more looseness about this bearing heading usage and we might be assuming here is that universal and its reply group here says well you talked a little bit about the heading of the runway and it says well that can mean only one thing because as it says a runway doesn't have a bearing. Well, it doesn't have a heading either. It has been aligned. But of course in its own software it uses the term bearing of the runway. These are not terms that like black and white have meanings that are obviously universally and sort of fixively opposite to one another. And that's what I think accounts for the unmistakable reality of this prosecution history together with this specification in which they're talking about appointing meaning and using the term heading. But as it was an understandable mistake of usage if one takes the normal the most normal usage as as the only usage then you would call it a mistake. But it was a perfectly clear mistake about what was intended. What I was suggesting is it may not be as clear a mistake as all of that. What the misuse of the term heading meaning bearing we all know what bearing means a reference or fixed point. Now what happens in the claim itself is it indefinite or is it the question of not being able to determine by public notice what it means so it's not enabled. No, I think you can. The indefinite standard for us is whether after applying the normal tools or instructions you can figure out what it means. The normal tools of instruction omitted you get away from the word by itself and the most common dictionary definition just points overwhelmingly to what we're, you know, the bearing. But your argument is premise totally on the column six type of analysis of figure five. Well, it's two things. The column six and figure five in this specification and then confirmed by the prosecution history where we say heading is the point in meaning and use the term. I don't know what is it five times in that paragraph. The court, as you know, is said on a number of occasions sometimes the prosecution history can be pointedly clear about what the baddies meant. I think if there's ever such a case this is such a case. Well, this is not blinding on clear even from the prosecution history. I think as Judge Plager points out you have to really tease it out completely from the prosecution history. You have to go back and forth in order to make a determination to what it means. I don't really don't think so. I think if you just read it in sequence the only thing that the other side really has gone for it is the examiner's initial assumption. And that initial assumption got corrected by the applicants who said when we're putting this word heading in this is what we mean by it. We believe the position meaning and you don't have to worry about adding something to the sensing devices because it's right there. It's the sensing device namely the longitudinal attitude sensing devices that say now I know where I am. I know where the airport is. There's a line between those two things connect that line to a reference statement true north and you have an angle. That's the angle we're looking for. So I think after that initial examiner assumption I don't think there's anything clear about that at all. I don't want to see Carlson but they do have one other thing going for him besides the examiner's initial assumption and that is the language of the claim. One case in which one has to go beyond the first blotch dictionary definition to say something quite different is made clear by the spec in prosecution history. That's the first one. Let me if I may pick up just something that I think Judge Bryson was reaching for and I'm not sure we quite focused it. Who was it first initiated the use of the term heading that is does the prosecution history indicate that the examiner said I don't know what you mean by the what you've got here. And then was it the prosecuting attorney whatever you want to call that person who came back and said oh what we mean is heading. Was that the sequences you understand it or was it the examiner who came up with the word heading. I don't know Judge Bryson if that's where you were reaching with your earlier question but I thought that was point. Do you happen to have a clear sense of that. Not as clear as I should. The term heading is in some of the original claims. So the examiner didn't introduce it into the cabinet as a whole. It's not an original claim for team and his original marks about claim 14 at 180 don't use the term and say here's what I think he ought to be doing. There is a brief reference although I'm not sure this is really what count as the examiner suggesting in any way that term hasn't been used but there is a reference at 183. Debatement which the examiner characterizes as referencing runway course direction heading and locate localizer deviation. That I think is the basis on which the second thing universal has going forward on this argument that is the basis for it. Mainly the reference debatement which if you go and look at the payment which put into this thing this direction record you will see. The statement there used heading in the point in the sense that's the basis on which I think it is reasonable say the examiner initially had in mind the ordinary pointing meaning of heading. It's everything that happened there after that that says no no no we don't have that in our written description of what this invention is doing. Do you think the examiner then came around and is thinking is that what you're saying. Or are you saying it doesn't really matter what the examiner thought. I think I would say actually both that it doesn't really matter once unless for some reason the examiner actually said no no no I disagree with you I'm going to accept your claim giving you a different interpretation from the one that you met me clearly but he didn't know what I'm going to think like that. What he did was he said how about if he said I won't approve this claim unless it says heading in the ordinary sense. Then we would have had an interesting question about whether to accept that amendment and whether that would have risked a written description or lack of enablement objection. That's all the kind of stuff that of course never heard because when he did accept the amendment he understood perfectly well and what was being put into the claim was intended to reflect what was in the written description from the beginning which is the positional meaning and not the point. Did you have any other points. Let me very briefly if you could. Yeah two very quick things. We don't of course agree that if for some reason heading got interpreted heading comes claim construction got reversed that judgment as a matter of law would be entered for us we at least have a doctor who would want to claim which never got to be presented or had to be ruled on because the district judges some regent said why adopt this meeting with headings my never been needed. What we have a problem though with doctor of equivalence if we read heading in the traditional sense the normal sense we would be happy to litigate that that has not been located and it's conceivable that we would lose on that but that has not been I hear you cannot. And I guess the only other thing I would say on the ground proximity warning system it seems to me that the specification never says doing this by reference to the FAA said that approved systems in existence at the time of course the FAA would approve on a constant lonely basis any number of new systems it never capitalizes the firm ground proximity warning system in fact breaks it up into its component pieces and it says that it is not a good thing to do. So that is in terms and I think we quote all of this around page 31 of our brief over and over again this applies to any warning system and when we amended in the prosecution to claim the warning system to a claim to ground proximity warning system back didn't have been it downing and it to say here's the kind of danger that the warning system is going to warrant and then you're too close to the ground not to a fixed set of the body was at the time. Thank you Mr Toronto. Mr. Fulick we've gone over a bit we will give you your five minutes and if you need a little more time than that in fairness we'll extend your time. Thank you very much Your Honor I don't think I will a couple points I just want to make on this prosecution history issue because I think it's important to understand the sequence and some things happen as the court points out it early in the process. There is a question history when the exam or originally rejected claim for to this and they amended to add heading of the aircraft the exam are document allowed claim for to be accepted the allowance of claim for to be accepted. But the word heading at least in the context of claim for to was came from the applicants not from the examiner. Yes, not at that point at least. Exactly, but he already said, which way does that cut by? Well, where it cuts is, you can't then say, oh, well, then afterwards, if you claim 21, the other claims, all of a sudden the examiner had a different understanding of what heading meant. Because now you're interpreting the claim that he allowed earlier, differently, from the claim that he allowed later. And that was the whole point. He said, I'm not going to give you claim 21 because it doesn't say heading yet. I gave you claim 14 because you've amended to recite heading and I know what that means. I'm not going to give you 21 until you amended to light claim, and add heading. They said, oh, we don't have to do that because here's the specification. So I'm going to say, uh-uh, amend the claim to say heading and you can get that claim like the earlier one. And that's what they did. So to say, oh, well, we had a different understanding of earlier when they allowed to claim 14, and they accepted it, then when they allowed to claim 21, they accepted it, says, OK, when you turned to two claims that use the same words differently. I don't think you can do that. The other issue about holding claim or would have recognized that we didn't disclose. Mr. Pollock, was it claim 14 allowed after the datum language was dropped? Yes. And heading was in. And heading to have before this discussion about the specification curve. Inspired of that, what if the examiner misunderstood the meaning of the term heading as judge, price and money, that's some problems with? What happens if, in fact, he misunderstood it? Well, I think that the examiner's misunderstanding creates that says he's a person of ordinary skills who's there to be. His understanding is a reasonable interpretation of that claim language. That means that that's a reasonable interpretation on the part of the person of ordinary skills leading the claim subsequently. He says, I agree with the examiner, but that's what it means. And therefore, that's why the claim-wormary means you control here, because you can't expect a competitor to read this file and say, oh, well, the examiner was wrong. Plenty well means this, especially. You just can't expect the person of ordinary skill to come up with that answer if the examiner himself was mistaken. Except that to the extent that you're relying on remarks made by and requirements imposed by the examiner prior to the later statements, such as the one on 270, and that would include both 14 and 21, then the examiner at the time he advanced a particular view, didn't have the benefit of what he was told later. Well, again, I mean, it seems to be that the applicant then benefited when he had one understanding, and changed his understanding, benefited again, created a, they're by themselves, created this problem in the file. Let me ask the question this way. And we're sort of buzzing around the issue and asking in different ways, but it's a difficult question. Suppose that on 8 270, instead of going through a paragraph in which the math is discussed, and one comes to the conclusion at the end that they're really talking about varying, even though they're using the term, suppose that in place of that, there had been one simple sentence which said, so far there's been some confusion about our use of the term. We are using the term heading to mean what is conventionally known as varying period. Would you be satisfied that that would solve the problem of this case and that put harshly you would lose? Well, yeah, but put a paragraph. Okay, but you say that's not what happened. Even if the examiner later said, put heading in there. But that's not what happened. All right, and if that had happened, then competitors could have seen that and could have designed their systems, not use varying to avoid the interest of the term. Even if they haven't been clever enough to go pick up the prosecution history and so forth, one is charged with notice of the prosecution. That's right. So what this case comes down to is, is 8 270. The functional equivalent of saying heading equals bearing. And if we conclude that it is, if read in the entire, not by itself, but read in the entire, yes. Okay, I don't disagree with that. One last point, and I know this point that the examiner would have recognized immediately that you didn't disclose bearing and therefore you were claiming lack of description, et cetera. I pointed that earlier in the prosecution, the examiner rejected the claim. And didn't disclose heading. Didn't disclose heading in this fact. The examiner rejected the claim in view of Baylor and said that heading was known and that determining alignment based on heading would have been obvious to a person who were nearer scale. That says that the examiner believed that reciting heading by heading in its pointing sense in the claim was sufficient for a person who were nearer still to understand the claim and to actually practice the invention regardless of the lack of disclosure in this fact. But that's a different kind of alignment, right? I mean, you can't have the bearing type alignment that's described in column six, just by knowing, cutting, and the pointing direction of being in the air. But you can have alignment. But it's a different kind of alignment. It's a different kind of alignment. It's the alignment in which the plane is here and the airport is there. So they're not lined up like this. It's the alignment of the directional travel with runway versus the location. But to the extent that we conclude from the patent itself that the term alignment is being used to mean this, not this or even this. Well, that would, that term would not, and that the basement wouldn't satisfy that, right? Well, again, it comes circular because it comes back to alignment in terms of heading. Well, but even if we never get to heading, just the patent, the specification doesn't use the term heading. So there's some question as to how alignment. But alignment by itself is, as we're already pointed out, is indeterminate. If you all you say is alignment, you need to determine the alignment of the aircraft with the runway. You don't have enough specificity, which is why the examiner at the beginning said, if you tell me what kind of alignment you're talking about. But the spec does seem, does it not, to give us more guidance as to what alignment means than it does what heading means. Because we do have alignment used and we have it at the end of the end. There's a kind of alignment. In the math, there's a kind of alignment that's close to the spec. And it's not both of them are moving north-south. That's correct. Okay. Very well. Well, I think, thanks very much for the talk. I appreciate both counsel for a very helpful answer