[00:00:00] Speaker 04: This is 141829, event steel recovery versus X-body equipment. [00:00:32] Speaker 00: Thank you, Judge Prost. [00:00:34] Speaker 00: Your honors may please the court. [00:00:36] Speaker 00: The district judge in this case adopted a claim construction that excludes every embodiment disclosed in the two patents in suit. [00:00:47] Speaker 00: Far from denying that anomaly, the defendants embrace that wholeheartedly by arguing that the district court's, excuse me, by arguing that the specification discloses one embodiment [00:01:02] Speaker 00: and the claims cover a different embodiment. [00:01:05] Speaker 00: That's at the red brief at page 26, and it's also discussed in the Rule 28j letter. [00:01:12] Speaker 00: Now, this court has made it clear that such constructions are rarely correct and that they must be supported by highly persuasive evidence. [00:01:22] Speaker 00: There is no such evidence in this case, and the red brief is silent on this issue. [00:01:28] Speaker 00: There's no evidence here of disavowal, of disclaimer, or lexicography by the patent applicant. [00:01:37] Speaker 00: Here, the district court correctly concluded that the claim term proximate end should be construed in accordance with its plain and ordinary meaning. [00:01:49] Speaker 00: But instead of turning to the intrinsic evidence in accordance with this court's clear jurisprudence, the district court [00:01:58] Speaker 00: looked solely to one dictionary definition in one dictionary. [00:02:03] Speaker 00: It was a secondary definition that was narrower than other, broader. [00:02:09] Speaker 04: And what did you propose as your construction? [00:02:12] Speaker 00: We proposed in the district court, Your Honor, that the proximate end was the general area at the end of the container packer on the side opposite the transport container. [00:02:27] Speaker 00: And that's completely consistent with a slightly different but more general formulation that we discussed in the blueprints, which was the region that is opposite the distal end. [00:02:46] Speaker 00: of the container packer or in the case of the transfer base. [00:02:52] Speaker 04: Can you just as a practical matter tell me what that means? [00:02:54] Speaker 04: How far does it go? [00:02:56] Speaker 04: Is it anywhere along the container packer or is it halfway through? [00:03:02] Speaker 04: What is what you have just articulated? [00:03:05] Speaker 00: Well, Your Honor, our view is that this claim phrase is not a specific point but is rather a region. [00:03:14] Speaker 00: that it's there in order to... Okay, what's the region then? [00:03:17] Speaker 04: I mean, just look at figure one. [00:03:18] Speaker 04: I mean, you've got a container packer. [00:03:22] Speaker 04: Is it the entire length of the packer that's the region that's covered at the top? [00:03:28] Speaker 00: It's certainly not the entire length of the packer, Judge Crost. [00:03:33] Speaker 04: So what, you just, you articulated to me what your claim construction was. [00:03:37] Speaker 04: I don't know if you can give it to me again, but how does that translate [00:03:40] Speaker 04: to this diagram, to this figure? [00:03:42] Speaker 00: Sure. [00:03:42] Speaker 00: So the claim construction we proposed below, I'll state it again, is that the proximate end, and this is at A1683, but that the proximate end is the general area at the end of the container packer on the side opposite the transport container. [00:04:06] Speaker 00: So the transport container is figure one. [00:04:09] Speaker 00: is element number eight, the shipping container, if you will. [00:04:14] Speaker 00: And so with respect to the transfer base, which is a subject of much discussion in the briefs, that approximate end would be over [00:04:29] Speaker 04: uh... if we look to the extreme right at it to the container to the proximate and the container what how far does your definition of and proximate and extend along uh... your honor [00:04:48] Speaker 00: I think it would be hard to say it's anything less than half or to define it with more mathematical precision than the right side half of that container packer. [00:05:01] Speaker 00: It's clearly more than just the edge, which was the district court's incorrect construction. [00:05:10] Speaker 03: Council, what you just mentioned, you said the district court just limited the construction to the extreme end. [00:05:16] Speaker 03: Yes. [00:05:16] Speaker 03: But didn't the district court hold that it meant the extreme or last part, lengthwise? [00:05:22] Speaker 03: I mean, why wasn't last part something more than just the extreme end? [00:05:27] Speaker 00: I don't think that's what the district judge meant, Judge Stoll. [00:05:32] Speaker 00: And that's evident in the decision of the district court, where there's a discussion of the doctrine of equivalence. [00:05:40] Speaker 00: And the court makes clear, and I believe that this is at A11. [00:05:45] Speaker 00: I'm not going to confirm that. [00:05:47] Speaker 00: But the district court makes clear that he was talking about or construing the approximate end to mean a particular [00:05:57] Speaker 00: location. [00:05:59] Speaker 00: And so that is an indication to me, I'm sorry it's at A, the photo is at A11 and maybe it's at A9, but the district court specifically said it was a particular location and when doing the doctrine of equivalence analysis, the district court certainly didn't wrestle [00:06:22] Speaker 00: with the issue of whether if it's a region that is associated with the what's called the right side or the edge of the container pack or the transfer base. [00:06:33] Speaker 00: The district court never wrestled with whether that region would encompass up to say 35 percent of the distance to the far end. [00:06:43] Speaker 00: The district court found only that there was a point that was [00:06:50] Speaker 00: indicated by the use of the term proximate and, and at that point, that word was not used, but that I'm considering as edge, did not include a location that was 35% offset. [00:07:07] Speaker 00: Even though in figure one, it is quite plain that in the preferred embodiment, indeed in all disclosed embodiments, the point of connection [00:07:18] Speaker 00: is offset from that extreme end by as much as 10%. [00:07:22] Speaker 03: So it's your position that even though that language that the judge initially used in the construction could have been broader, when he actually did his infringement analysis, he seemed to take a narrower view and just look at the extreme edge. [00:07:37] Speaker 00: Yes, and that's consistent with his analysis under the doctrine of equivalence where he never wrestled with [00:07:44] Speaker 00: with the question of how big the region was, and could it include 10%, but not 35%? [00:07:49] Speaker 00: And it's also consistent with what the court said about a particular location. [00:07:55] Speaker 00: And so the district court here, instead of looking at the intrinsic evidence, leap directly to a dictionary definition that is quite [00:08:07] Speaker 01: Looking at the intrinsic evidence, even if I agree with you, it can't be edge. [00:08:13] Speaker 01: I'm less uncertain as to what you mean by proximate edge. [00:08:19] Speaker 01: So if the plain, well I know there's a plain meaning. [00:08:23] Speaker 01: If the ordinary meaning of proximate edge may be a dictionary, otherwise it would imply back edge. [00:08:28] Speaker 01: And if your only embodiment makes it clear because of the piston and cylinder not reaching the transfer base and being separated by the hydraulic power source, [00:08:36] Speaker 01: yes they can't be back but what can it be and that i think that process that question and i don't feel like your definition which is way too amorphous cleanly might be that the district court definition is wrong but i'm not loving yours because i can't what i can't do in terms of a public notice function based on your definition is understand how far down [00:09:07] Speaker 01: how far down the transfer base you can go and still have literal approaches. [00:09:11] Speaker 01: Forget DOE. [00:09:13] Speaker 01: I need to know what [00:09:20] Speaker 01: What does proximate end mean in terms of a literal infringement analysis? [00:09:25] Speaker 01: Are you telling me that the transfer base should be divided in half? [00:09:28] Speaker 01: There's a proximate end and a distal end, and anything up to the 50% mark is considered part of the proximate end. [00:09:34] Speaker 01: I'll tell you, that doesn't seem to me to fit the patent. [00:09:37] Speaker 01: It's not the embodiment, and it doesn't seem to me to fit within the language respect. [00:09:42] Speaker 01: So help me. [00:09:44] Speaker 00: Yes. [00:09:45] Speaker 00: Well, Your Honor, I can refer to the court to the ACUMED decision, where the court was clear that claim constructions need not purge every line drawing problem from a claim construction. [00:10:03] Speaker 01: You've got to get public notice, and I'm not getting it. [00:10:06] Speaker 01: I agree with that. [00:10:06] Speaker 01: What is the proximate end? [00:10:08] Speaker 01: How should I construe it? [00:10:10] Speaker 01: You know, you're right. [00:10:11] Speaker 01: I think that it ought to probably include the only embodiment that stays in the patent, but what construction then does it mean for proximate end? [00:10:17] Speaker 01: I'm not saying you have to say 10% versus 12%, but do you mean the very back-end region, which, you know, generally, I mean, how do I divide this transfer base up? [00:10:27] Speaker 01: It just can't be cut in the middle. [00:10:28] Speaker 01: Everything is either distal or proximal, right? [00:10:30] Speaker 01: That can't be right. [00:10:31] Speaker 01: That just doesn't feel [00:10:33] Speaker 01: I understand, Your Honor. [00:10:40] Speaker 00: I would say this, that this is not, the use of these phrases, distal end and proximate end, are not so much used in their absolute sense as they are in their relative sense. [00:10:53] Speaker 00: And a person of skill in the art, reading that claim term, in the context of this specification, [00:11:00] Speaker 00: would conclude that the reference to the proximate end advises the person of skill seeking to build this invention or to understand its meets and bounds. [00:11:11] Speaker 00: It advises that person in terms of the orientation of this very large mechanical apparatus. [00:11:18] Speaker 00: And it advises that person of skill in the art that the power subsystem and the connection between the container packer and the transfer base should be at [00:11:29] Speaker 00: and at one end, and that the extension of the container packer into this large shipping container should be at the other end. [00:11:38] Speaker 00: I agree that is less than completely precise. [00:11:45] Speaker 00: But time and again, this court has approved some constructions which leave reasonable line drawing problems to the trier of fact. [00:11:55] Speaker 00: It made that clear. [00:11:58] Speaker 01: i believe in the in the act in that case uh... and uh... uh... uh... uh... uh... uh... [00:12:15] Speaker 01: So how is it, are you kind of giving up on the literal infringement idea and just putting your eyes in the DOE basket at this point or are you still of a belief that 35% is reasonable when talking about the back end? [00:12:29] Speaker 00: I think it could be because I think that a reasonable interpretation at a minimum is that the proximate end is a region and it's a region associated with that far right extreme edge. [00:12:43] Speaker 00: and that it would be appropriate to let the jury decide whether or not that region that is associated with that end can include a third of the way down. [00:12:53] Speaker 00: Yes, I believe that. [00:12:54] Speaker 04: No, you're not saying a third, you're saying 50%. [00:12:56] Speaker 04: In your view, there's no rational distinction. [00:13:01] Speaker 04: It's either 50% or it's nothing. [00:13:03] Speaker 04: Your view is, we're not talking about 35%, we're talking about 50%. [00:13:07] Speaker 00: Honestly, I don't see how I could take any position other than that, because I don't think there's a mathematical definition of end here that's possible. [00:13:15] Speaker 04: And there's nothing in the two figures, figure one and figure two, to support anything other than the end of the container package. [00:13:22] Speaker 04: There's nothing in these figures that indicates to us, gives us any notice that we're talking about a 50% moment, right? [00:13:29] Speaker 00: Well, can I refer, Your Honor, to figure four? [00:13:34] Speaker 00: in figure four of the patent. [00:13:37] Speaker 00: This is a piston and cylinder unit that operates inside the container packer to eject the material in the container packer into the shipping container. [00:13:48] Speaker 03: How do you square your reliance on figure four and figure five, which shows that element 58 at a different location? [00:13:57] Speaker 00: I square it, Your Honor, because in figure four, this is an exploded view showing a partially extended piston and cylinder unit. [00:14:10] Speaker 00: And element 58 points to the middle of that first telescoping cylinder, so that when this push blade is pushed [00:14:22] Speaker 00: All the way forward, we have multiple sections that telescope forward to push that blade towards the distal edge. [00:14:32] Speaker 00: And so in figure four, we see 58 pointing to that very first telescoping section. [00:14:39] Speaker 00: In figure five, the blade is completely retracted. [00:14:45] Speaker 00: This is a non-exploded view. [00:14:46] Speaker 00: The blade is completely retracted. [00:14:49] Speaker 00: And so the lead line for 56 points to the overall piston and cylinder unit. [00:14:57] Speaker 00: And the lead line for 58, which is the proximate end of the piston and cylinder unit, points to essentially the edge or the extremity of that piston and cylinder unit. [00:15:12] Speaker 00: But our definition doesn't exclude the absolute extreme edge. [00:15:18] Speaker 00: It includes that. [00:15:19] Speaker 00: Our definition would be that it is a region that includes but is not limited to the extreme edge. [00:15:27] Speaker 00: So I don't think that figures four and five are inconsistent. [00:15:32] Speaker 00: And it seems that a personal skill in the art, seeing that the connection on the transfer base in figure one is offset by as much as 10% from the very edge and that the [00:15:48] Speaker 00: and that in figure four that there is a lead line going to something that is clearly not the extreme edge. [00:15:58] Speaker 00: would conclude here that certainly this is a region we're talking about, not an extremity. [00:16:07] Speaker 01: But let me ask you one other question about claim one. [00:16:12] Speaker 01: In what I would say is the second element, when it's talking about the container packer, do you have that handy? [00:16:21] Speaker 01: Yes, I'm familiar with that language. [00:16:25] Speaker 01: A container packer including [00:16:28] Speaker 01: a proximate end, a distal end with an opening, opposite side walls, a floor, and an interior. [00:16:36] Speaker 01: Yes. [00:16:37] Speaker 01: Now, from this language alone, I would understand proximate end to be one structural part of the container pack, or distal end to be another structural part, opposite side walls to be a distinct structural part, a floor, and interior to be distinct structural parts. [00:16:55] Speaker 01: If I were to, which I think is a pretty normal thing in terms of reading claims when they list a container packer, including this comma, this comma, this comma, this, you don't usually read the elements as intertwined or overlapping. [00:17:09] Speaker 01: You usually read them as distinct structural elements. [00:17:11] Speaker 01: I agree with that. [00:17:12] Speaker 01: So if that's true, and the proximate end of the container packer and the distal end have to be different than the sidewalls, the floor, and the interior, don't they have to be the back and the front edges? [00:17:24] Speaker 01: Because they can't include the floor and they can't include the interior and they can't include the sidewall. [00:17:27] Speaker 01: So that at least as far as the container packer goes, the Proxima N really can't be anything but the back. [00:17:33] Speaker 01: Because if it creeps forward to the 35% wall, it's got to be including the interior, the floor, and the wall. [00:17:38] Speaker 00: This exact issue, Judge Moore was raised at the claim construction by the defendant. [00:17:44] Speaker 00: My friend argued then that the distal end with an opening required a structure. [00:17:50] Speaker 00: We argued that no, no structure is required for an end. [00:17:55] Speaker 00: The district court agreed with us and rejected that argument and concluded that no construction was necessary. [00:18:04] Speaker 01: The fact that he said no construction is necessary doesn't mean he adopted your construction, right? [00:18:11] Speaker 01: That's true. [00:18:12] Speaker 00: That's true. [00:18:13] Speaker 01: But tell me, forget about what the district court did, because we do at least this part de novo, so what do I do with this? [00:18:22] Speaker 01: If these are elements that are listed, a container packer including, these seem to be structural elements to me, how do I conclude that proximate end as used in this portion of the claim means anything other than the back side? [00:18:35] Speaker 00: Because proximate end in [00:18:37] Speaker 00: in this portion of the claim and in that second element in claim one is an orientational signal or directional signal so that a person's skill in the art [00:18:54] Speaker 01: Yes. [00:18:54] Speaker 01: A proximate end doesn't sound like they're talking about an orientation. [00:18:57] Speaker 01: It sounds like they're talking about the structure. [00:18:59] Speaker 01: A distal end with an opening comma, opposite side walls, a floor, and an interior. [00:19:04] Speaker 01: Those sound like very discreet components of the container. [00:19:09] Speaker 00: Well, if the end... Let me try this and judge more. [00:19:12] Speaker 00: If the end is, as the district judge found, the extreme edge [00:19:18] Speaker 00: of the container packer, then what would that be? [00:19:21] Speaker 00: That would either have to be on the floor, which is listed as an element, or on the edge of the sidewalls on the far right side, which is also an element. [00:19:31] Speaker 00: And so I think the more natural reading of this is that N refers to a region. [00:19:38] Speaker 01: Why can't it be the back? [00:19:41] Speaker 00: The back, there is no. [00:19:43] Speaker 01: The container has a back, right? [00:19:45] Speaker 01: In the front? [00:19:46] Speaker 00: The container packer does. [00:19:49] Speaker 00: The transfer base does not. [00:19:51] Speaker 00: And so we have to construe the term end consistently between the container packer and the transfer base. [00:19:58] Speaker 00: So the transfer base is like a table. [00:20:01] Speaker 00: It just ends. [00:20:02] Speaker 00: And then there are apparatuses that are mounted upon it, such as that power subsystem that is flush with the edge before the connection to the container packer. [00:20:16] Speaker 00: And so, and here cannot be a structure. [00:20:19] Speaker 01: Okay, I have a really dumb question I don't know about the structure. [00:20:21] Speaker 01: You say it's like a table. [00:20:23] Speaker 01: In figure one and figure two, it shows the hydraulic unit and then it shows a line behind the hydraulic unit. [00:20:29] Speaker 01: Is that not a physical element, a physical wall? [00:20:33] Speaker 01: It's not a dotted line, it's a line. [00:20:35] Speaker 01: I assumed that to be part of the structure. [00:20:39] Speaker 01: See how it's purple and there's a roof? [00:20:41] Speaker 01: and there's a bottom, and then there's that line to the right of element 17 or element 20, which is the hydraulic power source. [00:20:50] Speaker 01: Is that not a structural wall, a structural line? [00:20:53] Speaker 01: It seems like a table, but the picture shows a line and not a soft line, a hard line. [00:20:59] Speaker 01: I assumed that that was structure. [00:21:00] Speaker 01: Am I wrong to assume that? [00:21:02] Speaker 00: I've never interpreted that as being any structural element. [00:21:06] Speaker 00: It's certainly not marked as such or discussed in the specification anywhere. [00:21:10] Speaker 00: And if that is the proximate end, and the district judge was right, then clearly elements 28 and 26, which are the connection between the proximate end of the transfer base using the claim language now and the container packer is obviously offset [00:21:32] Speaker 00: by a factor of what I estimate, just looking at this drawing, is 10%. [00:21:38] Speaker 00: And so that is what makes clear that the claim construction excludes the disclosed embodiments. [00:21:47] Speaker 01: If you said that I confused you when I said purple, my clerks actually, I have them color code every element so I can understand where it comes from. [00:21:56] Speaker 01: And so the purple is ours. [00:21:57] Speaker 00: I was able to follow you just more. [00:21:58] Speaker 01: The purple doesn't generally come in color. [00:22:00] Speaker 01: I do know that. [00:22:01] Speaker 01: My clerk's up here. [00:22:02] Speaker 01: The purple is mine, Judge. [00:22:03] Speaker 01: He doesn't know what the purple is. [00:22:06] Speaker 00: I'm sorry. [00:22:06] Speaker 00: I was able to follow the clerk. [00:22:09] Speaker 00: I'm way over. [00:22:10] Speaker 00: And I'm very grateful for the clerk. [00:22:11] Speaker 04: We still have two minutes of rebuttal if it's needed. [00:22:14] Speaker 04: And we'll add four minutes to the other side to try to get it a little even if it's necessary. [00:22:23] Speaker 02: Thank you, Your Honor. [00:22:23] Speaker 02: I'm hoping it won't be necessary. [00:22:25] Speaker 02: May it please the court. [00:22:29] Speaker 02: The district court used the definition of the word proximate end of the container packer and said it has its plain meaning. [00:22:38] Speaker 02: I will refer to a dictionary to show that with these types of structural objects, what we all know the word end means, which is the last or extreme part [00:22:49] Speaker 04: of the object except if your friend points out if you look at picture one and picture two the same term applies the same word n is used in the pattern with respect to the transfer base as well as the container so we're likely that it's [00:23:04] Speaker 04: necessary for us to construe it in the same way. [00:23:07] Speaker 04: And if you look at the figure, because of the generator or whatever it's called, the figure does not disclose an absolute end for the transfer base, which suggests that there is some give in that definition. [00:23:22] Speaker 04: Right? [00:23:25] Speaker 02: Your Honor, I think that we are talking about [00:23:28] Speaker 02: two different ends in this case. [00:23:31] Speaker 02: There is the claim term that is the proximate end of the container packer and yes, there's the claim term that is the proximate end of the transfer base and presumably they're both proximate ends that are being discussed. [00:23:44] Speaker 04: Presumably the end would be defined in the same way with respect to the transfer base. [00:23:51] Speaker 02: Presumably they would be, but what I will say about that is we have a lot of evidence about what the word end means regarding the container packer in the specification and in the claim, and much less about the proximate end of the transfer base. [00:24:04] Speaker 02: So in the container packer, for instance, as Judge Moore aptly noted, the container packer has a proximate end. [00:24:10] Speaker 02: It doesn't even just have a distal end, but the distal end itself has an opening which is given a separate number in the specification, and those are separate from the sidewalls on the floor. [00:24:20] Speaker 02: We find out, if you go down two more limitations, we labeled it 1E in our brief, the container packer drive, which is that hydraulic system we're talking about, has to be connected to both the transfer base and the container packer. [00:24:33] Speaker 02: That's already part of the claim. [00:24:35] Speaker 02: Then you come down five more limitations, and now it says, oh, it doesn't just have to be connected to the container packer approximate end, to the container packer and the transfer base, but this is where it has to be connected. [00:24:48] Speaker 02: So before we ever got to the limitation at issue, we already knew there had to be a connection between the hydraulics. [00:24:54] Speaker 02: Now it's saying where the connection has to be. [00:24:57] Speaker 02: That's the only purpose of saying proximate end, because otherwise you don't have to say anything, because it already has to be connected. [00:25:04] Speaker 02: The one other thing I will say about this is there's another claim term that was briefed, which is that the packer blade, which is that moving wall inside, has to both end up being retracted to a point proximate [00:25:17] Speaker 02: to the container packer proximate end and adjacent to the container packer proximate end. [00:25:23] Speaker 02: So the claim actually comes at this location of the container packer proximate end from both sides. [00:25:29] Speaker 02: It says the hydraulics have to be attached to the end in one direction and that packer wall has to slide all the way back to be adjacent to that proximate end in the other direction. [00:25:41] Speaker 02: So in this case, when you're looking at proximate end of the container packer, the claim itself is very clearly using a specific location. [00:25:49] Speaker 02: It is saying that it has to be otherwise adjacent to an undefined region would be a meaningless concept. [00:25:56] Speaker 03: So do I understand that it's your position that the term proximate end could have different meanings in the claim? [00:26:03] Speaker 02: I don't think it does, but what I'm saying is that there is no dispute in this case about the approximate end of the transfer base being at issue here. [00:26:11] Speaker 02: What we were talking about is the approximate end of the container packer. [00:26:14] Speaker 02: I believe it's used the same way in both. [00:26:18] Speaker 02: What I will say with respect to the transfer base, because they do point to the figure, and when you look at the language in the specification, the specification uses the word end, back end, front end, [00:26:33] Speaker 02: approximate end to talk about the hydraulics, which is basically a telescoping pole. [00:26:40] Speaker 02: It talks about it with respect to the container packer. [00:26:43] Speaker 02: But when you get to the part of the specification that talks about the transfer base, and it actually talks about what the figure shows, it does not say it's attached to the approximate end of the transfer base. [00:26:55] Speaker 02: What the text related to the figure shows is that it is at a point forward from the transfer base [00:27:03] Speaker 02: And that is column 3, lines 22 through 33. [00:27:06] Speaker 02: It says the end of the cylinder, but then it actually doesn't say that it's attached to the end of the transfer base. [00:27:12] Speaker 02: It says it's attached to a point forward on the transfer base, not to the end of the transfer base. [00:27:16] Speaker 04: OK. [00:27:16] Speaker 04: Let me move you to DOE, which we didn't have much time to talk to your friend about. [00:27:20] Speaker 04: And let's leave the concept of vitiations aside for a minute and just talk about function by result. [00:27:26] Speaker 04: Right. [00:27:27] Speaker 04: Why is there not, given the two expert declarations put in by your friend, sufficient cases to at least say that there's some sort of factual issue that needs to be resolved for us? [00:27:41] Speaker 02: Absolutely. [00:27:42] Speaker 02: So the first thing I would say about that is, with respect to the DOE argument, is that the function that is actually stated in the patent about how you use the hydraulics is to push rearwardly [00:27:56] Speaker 02: the entire container packer and that is at column four, lines 24 through 27. [00:28:01] Speaker 02: It says the function of that hydraulic is to push the entire container packer rearwardly. [00:28:08] Speaker 02: However, the declaration that we submitted said ours is not pushing the entire container packer rearwardly. [00:28:16] Speaker 02: We're not performing that function. [00:28:18] Speaker 02: We have a point that's closer to the middle on purpose [00:28:21] Speaker 02: because that doesn't just push, it pushes part of the container packer and it pulls a third of the container packer and we believe that's a superior design that provides more stability. [00:28:31] Speaker 02: The declarations, both the declarations provided by the plaintiff did not disagree that this didn't perform the function of just pushing, that it did this hybrid function of pushing and pulling. [00:28:44] Speaker 02: What they said was, it doesn't matter. [00:28:46] Speaker 02: It doesn't matter because we're going to identify the function as just moving the container packer back and forth. [00:28:53] Speaker 02: And you can do that by attaching at any point. [00:28:55] Speaker 02: It doesn't matter where you attach a hydraulic. [00:28:58] Speaker 02: As long as the box moves, it's fine. [00:29:00] Speaker 02: And as far as side to side stability, which your designer said was improved, we're not going to dispute that. [00:29:07] Speaker 02: But what we're going to say is, there are side rails that hold it in place anyway. [00:29:11] Speaker 02: So ultimately, who cares if there's side to side stability? [00:29:14] Speaker 02: And that is the substance of the expert declaration. [00:29:16] Speaker 02: So I believe they misidentified the function. [00:29:19] Speaker 02: The function that's in the patent is a function of just pushing and then doing an entire extraction from the end. [00:29:25] Speaker 02: And that is done specifically at the location of the end. [00:29:30] Speaker 02: That's not what they were talking about. [00:29:32] Speaker 02: We provided evidence that there were differences, actual differences in the physics of attaching to a point that was closer to the middle. [00:29:39] Speaker 02: And rather than dispute that, they said there are other reasons it doesn't matter. [00:29:43] Speaker 02: The further thing is, with all due respect, so I think I've responded to that, but I think the initiation point is an important one. [00:29:49] Speaker 02: There was already a claim limitation, which was 1E in ours, that said you have to attach that container packer drive, that hydraulics. [00:29:58] Speaker 02: There's already a claim limitation that says they have to be attached, and that you have to move the container packer. [00:30:04] Speaker 02: So that's done already. [00:30:05] Speaker 02: When you get to our limitation, it says it has to be at the end. [00:30:10] Speaker 02: That's the only addition. [00:30:11] Speaker 02: That's that language. [00:30:13] Speaker 02: Already there had to be a hydraulic attached to those two things and it already moves it back and forth. [00:30:19] Speaker 02: That functions a different part of the claim. [00:30:21] Speaker 02: This part of the claim says it specifically has to be attached to the ends. [00:30:25] Speaker 02: And that function is pushing the whole thing and pulling the whole thing. [00:30:29] Speaker 02: And that's a different function than just moving it back and forth. [00:30:33] Speaker 04: Moving it back and forth is a way argument rather than a function argument. [00:30:37] Speaker 02: Well, I mean, possibly. [00:30:38] Speaker 02: I see it as a different function. [00:30:40] Speaker 02: But then even if you interpret it as clearly a different way, we reach the same legal result. [00:30:47] Speaker 02: And there's no really other way to talk about this really outside this concept of initiation. [00:30:51] Speaker 02: Because once you're already moving the container packer back and forth, [00:30:55] Speaker 02: then all that they've done in their expert declarations is take a line through the point of location. [00:31:00] Speaker 02: They just said it doesn't, if you look at those declarations, and I would invite you to, it doesn't say, it just says it doesn't matter where you attach it. [00:31:10] Speaker 02: It doesn't matter. [00:31:11] Speaker 02: So what they're doing is they're literally taking a line through the language of it has to be attached to the end, because they say it could be attached to the bottom, it could be attached to the side, it doesn't matter. [00:31:21] Speaker 02: It just doesn't matter. [00:31:22] Speaker 02: And you can't do that [00:31:24] Speaker 02: The Supreme Court in Warner Jenkinson is still the law of the land. [00:31:27] Speaker 01: You can't just take a line through part of the claim language and say we don't need it. [00:31:36] Speaker 01: It's mostly pushing. [00:31:38] Speaker 01: There's little force being exerted in terms of a pull rather than a push. [00:31:43] Speaker 01: Just based on 35%, it's a straight numerical thing which is not very complicated. [00:31:48] Speaker 01: It's mostly pushing. [00:31:50] Speaker 01: The question is, is it insubstantially different because it also exerts a pulling force? [00:31:55] Speaker 01: Your expert said the reason it is, is because it adds stability. [00:31:59] Speaker 01: And they're saying, no, the way the claim element is, there's side rails, so that extra stability is redundant, quite frankly. [00:32:07] Speaker 01: It might be helpful in an environment where there are side rails, but in this environment where there are side rails, the stability is not relevant. [00:32:15] Speaker 01: So I guess why does that make for substantial differences? [00:32:20] Speaker 02: Right. [00:32:21] Speaker 02: So this claim doesn't have any side rails required by it. [00:32:24] Speaker 02: They were saying in the specification there were side rails. [00:32:28] Speaker 02: The claim doesn't require side rails. [00:32:30] Speaker 02: They were just saying you could use side rails, and that would provide the stability that you're talking about. [00:32:34] Speaker 02: I mean, that's a hypothetical. [00:32:36] Speaker 02: That's not a claim requirement. [00:32:38] Speaker 02: In fact, we had argued in claim construction, which is part of the record, that we thought that the concept of the container packer guide was talking about side rails, and the judge rejected that and said, no, no, no. [00:32:47] Speaker 02: You don't have to have side rails. [00:32:49] Speaker 02: So this claim doesn't require that. [00:32:52] Speaker 02: The other thing is there are limits [00:32:57] Speaker 02: to this concept of doctrinal equivalence. [00:33:00] Speaker 02: And one of those limits, when you're talking about, and this is what the judge basically looked at, was similar to Sear Foss and Sage, the cases say when you have a locational requirement, you can't just ignore that and say it's fine to just do this somewhere else. [00:33:16] Speaker 02: And when we're talking about going 15 feet down a 40 foot box and attaching it to another [00:33:21] Speaker 02: That's not a matter of degree. [00:33:22] Speaker 02: That's not within the general body of law of doctrine of equivalence. [00:33:26] Speaker 01: You're assuming you've won on your claim construction argument. [00:33:30] Speaker 01: You're assuming that 15 feet down a 40 foot box is as opposed to zero feet down a 40 foot box. [00:33:37] Speaker 01: And the problem is, I mean, I don't think this panel has come to a clear rest on that issue in light of figure one and figure two. [00:33:46] Speaker 01: And I guess what I'm trying to reconcile in my mind is suppose they prevail on claim construction to the extent [00:33:54] Speaker 01: that it isn't the very back edge, but the proximate, proximate nearness to the back edge, maybe as much as 10% away from the back edge, certainly not half, I don't see how that makes any sense, but you know, maybe if there, I'm trying to see how you come out if you don't get on claim construction on DOE, if instead, if you wanted to, are in fact part of the capture of what proximate end means, and then where are we? [00:34:19] Speaker 01: So is there any way maybe you could shift your argument for a minute and help me figure out [00:34:23] Speaker 01: why it may not matter. [00:34:25] Speaker 01: If I'm with you, there's no literal infringement because it can't be 50%. [00:34:28] Speaker 01: I'm with you on that. [00:34:29] Speaker 01: But if I'm struggling on, but it might be able to be 10% because I'm having trouble reading out the only embodiment in the claim, then where are we on DOE? [00:34:36] Speaker 02: So I have basically three things to say about that. [00:34:39] Speaker 02: One is an interpretation of the word end consistent with what the district court did and consistent with if you're using proximate end of the transfer base. [00:34:48] Speaker 02: that I believe if you look at the text that this is one case where it doesn't talk about attachment to the end. [00:34:53] Speaker 02: And the only place it did was the originally filed claims. [00:34:56] Speaker 02: And so I thought it was a Johnston and Johnston. [00:34:58] Speaker 02: Johnston and Johnston, there are multiple embodiments and some claims can speak to some and some claims speak to other. [00:35:04] Speaker 02: But if you wanted an interpretation of that word end, that even though the text of the patent does not call it the end, would be it. [00:35:11] Speaker 02: What I would say about it is the power system subsystem 20 forms the back, that forms the proximate end. [00:35:18] Speaker 02: There's nothing else. [00:35:19] Speaker 02: There's no space. [00:35:21] Speaker 02: This is, given that you're putting a power subsystem to form the end, this is as far as you get. [00:35:25] Speaker 01: I think you misunderstand the nature of my question. [00:35:27] Speaker 01: First off, I don't understand that argument to be one that you phrased about the power source being the backend of the transfer base. [00:35:34] Speaker 01: And I'm not sure that makes sense, given that the transfer base and the power source are described as expressly a separate element. [00:35:40] Speaker 01: So I don't think you can win on it, and I don't think you can make it. [00:35:43] Speaker 01: But even if you did, I think you're misunderstanding my point. [00:35:46] Speaker 01: Suppose you don't get back end. [00:35:48] Speaker 01: The post proximate edge is something that includes at least 10%, but maybe not much more than that because it wouldn't be consistent with the ordinary meaning. [00:35:55] Speaker 01: And so what happens then? [00:35:57] Speaker 02: Right. [00:35:58] Speaker 02: So what happens then is you have to look at the expert declarations and say, did they do an analysis that said that you achieved the same function the same way to achieve the same result? [00:36:09] Speaker 02: in a way that actually analyzed those issues or in a way that drew a line through plain language and vitiated the locational aspect of this. [00:36:18] Speaker 02: And so if they had said, well, given what actually happens is the push versus the pull constitutes essentially the same movement of matter and here's the math to do it, they did some analysis. [00:36:32] Speaker 02: That'd be one thing. [00:36:33] Speaker 02: But what they said is, as long as you're moving the box, it doesn't matter where you attach it. [00:36:38] Speaker 02: And so the actual analysis that was performed in those declarations literally draws a line through the language. [00:36:44] Speaker 02: We already have a claim limitation that says you have to attach the hydraulics. [00:36:48] Speaker 02: That's a separate claim limitation. [00:36:51] Speaker 02: This says you have to attach it at the end. [00:36:53] Speaker 02: And what they said is, no, you don't. [00:36:55] Speaker 03: Setting your vitiation argument aside, why is there no genuine issue of material fact here on the doctrine of equivalence, given, let's assume, as Judge Moore said, that the claim construction is more than just the extreme end? [00:37:12] Speaker 02: Right. [00:37:12] Speaker 02: So there is no analysis comparing that concept of end with the concept of being attached in the middle. [00:37:21] Speaker 02: that was performed in the declarations that were done. [00:37:24] Speaker 02: We said there's a substantial difference in attaching at the end versus attaching at the middle. [00:37:28] Speaker 02: It provides more stability. [00:37:29] Speaker 02: And what they said is you could put side rails there and that would be something that would solve the problem basically. [00:37:37] Speaker 02: But that's not a proper analysis of function, way, and result. [00:37:41] Speaker 02: You can't just hypothesize other elements [00:37:43] Speaker 02: and say that that's a way that you could achieve the same result, even though not required by the claim. [00:37:48] Speaker 02: The claim doesn't, we have a ruling on this, it's not part of the appeal, that there's no side rail requirement in the patent. [00:37:57] Speaker 02: Our designer submitted a declaration that said by attaching it at a point far from the end, you achieve better side to side stability. [00:38:05] Speaker 02: They said, I don't see that as being an issue because you can put side rails. [00:38:10] Speaker 02: Side rails can stop it from pushing against the sides to kind of focus it. [00:38:15] Speaker 02: That hypothesis is not an appropriate function way result analysis. [00:38:19] Speaker 03: What about at page A 1933 where the expert says, I don't think this is true. [00:38:24] Speaker 03: He says Mr. Dennis claims that it's cylinder and where it connects to the hopper is better because it increases side to side stability, but I don't think it's true. [00:38:32] Speaker 02: The reason he doesn't think it's true is because of the possibility of side rails. [00:38:40] Speaker 01: What about near the bottom of that same declaration, the same paragraph, where he explains, by being below the center of gravity, both the hob's cylinder and the acculator's cylinder drive the hopper in precisely the same way. [00:38:56] Speaker 01: Right. [00:38:56] Speaker 02: And the way that he's talking about is that it pushes, that it moves, and he defines the function earlier in the declaration, and he says that's just moving the box back and forth, and that that's done the same way because you're doing it from a low point on the box. [00:39:10] Speaker 02: But what he says is that the stability issue can be obviated by putting side rails there because you can bang into the side rails instead of going off the edge. [00:39:18] Speaker 01: No, but I'm focusing on the way, because like just first, I understand your main argument to be they perform different ways. [00:39:26] Speaker 01: One just pushes, one pushes and pulls. [00:39:28] Speaker 01: Right. [00:39:29] Speaker 01: And so what he's saying here is no, they both operate the same way because [00:39:34] Speaker 01: of the placement of the piston and cylinder below the center of gravity, and that's what causes it to drive the unit. [00:39:41] Speaker 01: If the function is to move the container packer back and forth, then he's saying in the way this operates, place it below the center of gravity, and then it's going to move it. [00:39:53] Speaker 02: So basically, the analysis that's being provided is it sort of doesn't, you don't have to attach it to the end. [00:39:57] Speaker 02: You can attach it anywhere. [00:39:59] Speaker 02: If it's below the center of gravity, that's fine. [00:40:02] Speaker 02: But you already, you know, so yes, that does come back to my initiation argument. [00:40:06] Speaker 02: I mean, that is true. [00:40:07] Speaker 02: But I also believe, I mean, the patent itself, column 424 to 27, says it's pushing rearwardly is the function of that drive. [00:40:16] Speaker 02: I mean, that's what you're doing with the container packer. [00:40:18] Speaker 02: And so this idea of pushing and pulling is really a different thing. [00:40:22] Speaker 02: And so I don't think that it's been addressed. [00:40:27] Speaker 02: I mean, as far as the, [00:40:29] Speaker 01: and then it is there something you know that you say you didn't address pushing versus pulling and you might be right because I don't see that in either of the two declarations which I just sat here and read, but is that a substantial difference? [00:40:43] Speaker 01: This is a question of fact, it's on summary judgment, they just have to raise a genuine issue of fact, is there some substantiality to the difference between one of them pushes only and one of them primarily pushes but partially pulls based on what's left [00:40:58] Speaker 02: So we provided evidence from a designer that said that that will increase side-to-side stability. [00:41:04] Speaker 02: The reason that they gave to try to rebut that was this idea that you could use different elements that are not required by the claim to overcome that problem. [00:41:13] Speaker 02: That's not an appropriate functional way to result analysis to say that you do in fact have the same [00:41:19] Speaker 02: function and way and result. [00:41:21] Speaker 02: To say that you need other elements, we're going to hypothesize existence of other elements. [00:41:24] Speaker 01: So the stability point goes really to the result then, and you're saying we do operate in a different way, and it is a substantially different way because look it produces an added benefit that the other way doesn't produce. [00:41:38] Speaker 02: It has other disadvantages too. [00:41:40] Speaker 02: It's not as compact of a design. [00:41:42] Speaker 02: The hydraulics that we have sit... We don't have the mobility in our device that they talk about in the patent because the hydraulics being part of the base where they have wheels. [00:41:51] Speaker 02: They try to put everything on top of the truck bed and have the two hydraulics in line. [00:41:56] Speaker 02: We have a much longer hydraulic on the back of our container packer because we don't move it around the yard. [00:42:01] Speaker 02: It just sits there. [00:42:02] Speaker 02: So it's a fundamentally different concept when you have [00:42:06] Speaker 02: What they talk about in the patent, which is one hydraulic on the transfer base and another hydraulic inside the container packer that worked together, then when you have this system where you don't and you attach the hydraulic somewhere totally different in a different way. [00:42:19] Speaker 03: Is that different in the record? [00:42:21] Speaker 03: Yes, yes. [00:42:22] Speaker 02: Where would that be? [00:42:24] Speaker 02: So it's shown on, it's a way, it's discussed in the dentist, I believe it's generally discussed in the dentist's declaration at [00:42:38] Speaker 02: Well, I don't know if we talked about the mobility issue, but if you, in the dentist's declaration, but I believe it's in the dentist's declaration, which is, starts at 1628, I believe. [00:42:47] Speaker 02: But I also think that the difference, the visible difference is actually in the record at 1630, where we have, where we show an exploded view of the entire AccuLoader packer. [00:42:58] Speaker 02: And we have one hydraulic that's entirely in a permanent base that sits on the bottom. [00:43:03] Speaker 02: And then you have this container packer that sits on top of the whole thing and has its own [00:43:07] Speaker 02: system, that's actually a different point in the appeal that we raised was that the other reason we don't meet proximate end, and this is another issue, is on our container base, and it's in the reply brief, for example, a photo of it, at their page 24, excuse me, on page 23, and it's A53, I believe, or no, they say it's in our brief at 53. [00:43:36] Speaker 02: We have, rather than do everything in line the way they talked about in the patent, our container packer goes far back beyond the sidewalls, goes at least six feet back beyond the sidewalls. [00:43:48] Speaker 02: So, and there's like diagonal bars that come down and block that back blade from coming all the way to the back of the container packer. [00:43:58] Speaker 02: The same proximate end issue that we've talked about is present there. [00:44:03] Speaker 02: There's no way it can go all the way to be adjacent to that end of the container packer. [00:44:09] Speaker 02: They didn't make a DOE argument in this case. [00:44:12] Speaker 02: So if you find that the proximate end of the container packer means the actual end of the container packer, and for whatever reason you didn't feel comfortable with the DOE argument, then you can also say, oh, you're right. [00:44:24] Speaker 02: You did argue in summary judgment also, and there's a record of this, that that packer blade never gets adjacent [00:44:31] Speaker 02: to the end of that, to that end, the same end we're talking about at the container pack. [00:44:36] Speaker 02: Did the district court roll on that? [00:44:37] Speaker 02: No. [00:44:37] Speaker 02: That is something we submitted. [00:44:39] Speaker 02: District court said in common parlance, this is a no-brainer. [00:44:43] Speaker 02: You're supposed to be attached to the end. [00:44:44] Speaker 02: You're attached way far away. [00:44:46] Speaker 02: That's not the end. [00:44:48] Speaker 02: It's nowhere near the end. [00:44:50] Speaker 02: Your declarations don't show me that it's only insubstantially different than the end. [00:44:55] Speaker 02: I think you're vitiating the claim limitation. [00:44:58] Speaker 02: That was the order. [00:44:59] Speaker 02: So the district court did not address the second point. [00:45:02] Speaker 02: Before this court were to send this back for more analysis, it's fully briefed. [00:45:07] Speaker 02: It was on summary judgment. [00:45:08] Speaker 02: So the same word end is that the Packer blade does not retract all the way adjacent to that end. [00:45:14] Speaker 02: And there is no DOE argument. [00:45:15] Speaker 02: So that would be an independent basis for affirmance. [00:45:19] Speaker 02: I believe that the district court did the right thing on both of those grounds. [00:45:21] Speaker 02: I'm just saying if there was some discomfort about the DOE argument, [00:45:25] Speaker 02: That would be alternative grounds for affirmation. [00:45:27] Speaker 01: Did you make that on appeal? [00:45:28] Speaker 02: Yes. [00:45:29] Speaker 02: It's pretty extensively brief, but it's toward the back of the brief. [00:45:36] Speaker 04: Thank you. [00:45:44] Speaker 00: Thank you, Your Honor. [00:45:48] Speaker 00: I'll go very quickly. [00:45:51] Speaker 00: First of all, one thing that hasn't been discussed is the fact that we put in substantial evidence on function, way result in two expert declarations, the Smith and the Wellings declaration. [00:46:05] Speaker 00: The entire sum and substance of the [00:46:09] Speaker 00: Dennis declaration that was submitted does not, well it amounts to no more than saying not that it doesn't perform the same function the same way or the same result or that the differences are substantial. [00:46:25] Speaker 00: All it says is that our attachment point yields greater stability. [00:46:31] Speaker 00: Even if that's true, that does not obviate the obvious question of fact, of material fact here based upon the evidence that we submit. [00:46:43] Speaker 00: All it means is that perhaps my friend has demonstrated that their [00:46:47] Speaker 00: machine, their apparatus, is more optimally constructed than the preferred embodiment, that it performs another function. [00:46:56] Speaker 00: But it doesn't create an issue as to whether or not, in fact, that attachment point serves the same function identified in the patent itself. [00:47:08] Speaker 00: So I don't think that argument assists them very quickly. [00:47:15] Speaker 00: Judge Stoll, the citation I was fumbling for earlier is at page A11 in the district court's summary judgment order. [00:47:27] Speaker 00: That's where the reference to particular place is made in that order. [00:47:38] Speaker 00: I do want to reiterate that we are talking about a situation here where the parties are in agreement that the district court's construction excludes all disclosed embodiments. [00:47:51] Speaker 00: So unless this is one of those rare cases, then supported by highly probative evidence, then I don't think the district court's claim construction can be sustained. [00:48:05] Speaker 00: And if I could have five more seconds, I understand that the court is uncomfortable with what we have proposed. [00:48:11] Speaker 00: At summary judgment below, excuse me, at claim construction below, my friend proposed a construction that the court may actually like more for the term end. [00:48:23] Speaker 00: And that proposal below was that, excuse me, [00:48:32] Speaker 00: I'm not finding it immediately in my notes, but the proposal below is cited in our briefs, and it was to the effect that it is a part or place at or adjacent to an extremity. [00:48:44] Speaker 00: And so I don't know if that satisfies the desire for more precision here, but that would certainly perhaps be more powerful for the court than the back half. [00:48:58] Speaker 04: Thank you. [00:48:58] Speaker 00: Thank you very much for your time. [00:49:00] Speaker 04: Thank you, and we thank both Council and the case is submitted.