[00:00:00] Speaker 00:
1199 clear versus chrysler group

[00:00:50] Speaker 02:
Yes, thank you, Your Honor.

[00:00:52] Speaker 02:
May it please the Court, being here in law school, I think it's, I'd be remiss if I didn't start with a

[00:00:59] Speaker 02:
Anderson versus Liberty Lobby.

[00:01:02] Speaker 02:
What we all learned in Civil Procedure in Rule 56, because as Judge Morse said, and I think it was the Enos case, the first case this morning, at summary judgment, when there's evidence in the record, the district court, and I'm paraphrasing, the district court does not get to weigh the evidence.

[00:01:15] Speaker 02:
That's exactly what the district court did here.

[00:01:18] Speaker 02:
She weighed the evidence when there was a classic battle of the experts.

[00:01:22] Speaker 02:
And the evidence that the court cited was all of a page and a half was evidence that the appellee, Chrysler, relied on that was taken out of context and ignored.

[00:01:34] Speaker 01:
You're starting this case in an interesting posture.

[00:01:36] Speaker 01:
I thought most of your arguments were directed to the claim construction.

[00:01:41] Speaker 01:
And I understood very little of your case to be directed to the evidence under the existing claim construction.

[00:01:48] Speaker 01:
Am I wrong?

[00:01:49] Speaker 01:
Are you adopting the not obvious claim construction?

[00:01:53] Speaker 02:
No, Your Honor.

[00:01:54] Speaker 02:
There's actually two distinct issues in this case.

[00:01:57] Speaker 02:
One is that the claim construction was improper.

[00:02:00] Speaker 02:
But even if it wasn't, and the court accepts it,

[00:02:04] Speaker 02:
we believe there's sufficient evidence in the record.

[00:02:07] Speaker 02:
Dr. Aiken testified and went through painstaking detail in dozens and dozens of pages of multiple reports to explain how using the district court's claim construction, in his opinion, when his expertise was never challenged, that they meet the limitation of the element as construed by the district court.

[00:02:28] Speaker 02:
So we are taking both issues at hand.

[00:02:30] Speaker 03:
At 3329, Dr. Aiken says,

[00:02:34] Speaker 03:
The rim storage box is apparent to a casual observer.

[00:02:38] Speaker 02:
Yes.

[00:02:38] Speaker 02:
No, he says at certain angles in certain instances

[00:02:42] Speaker 02:
And Your Honor, it asked him what he thought.

[00:02:45] Speaker 02:
And he said, yes, it is apparent.

[00:02:47] Speaker 02:
The hinge panels are apparent to me.

[00:02:49] Speaker 02:
I've climbed all over the truck.

[00:02:50] Speaker 00:
Can we start at claim construction?

[00:02:51] Speaker 00:
Sure.

[00:02:52] Speaker 00:
That's where we usually start.

[00:02:53] Speaker 00:
I'm getting a little confused about this infringement analysis.

[00:02:56] Speaker 00:
Sure.

[00:02:56] Speaker 00:
Sure, Your Honor.

[00:02:57] Speaker 00:
So start and tell us why the district court aired, apparently, of you adopting the other side's claims.

[00:03:03] Speaker 02:
Yes.

[00:03:04] Speaker 02:
Chrysler engaged in a war of semantics for strategic gain.

[00:03:09] Speaker 02:
They argued that it's not as obvious.

[00:03:12] Speaker 02:
And a claim construction, really a lawyer isn't anti-semantic.

[00:03:16] Speaker 02:
But a claim construction, Your Honor, the job is to get it right.

[00:03:18] Speaker 02:
There's a role for advocacy.

[00:03:20] Speaker 02:
But the role of claim construction is to get it right so that the jury is not confused.

[00:03:25] Speaker 00:
What's the claim term that's at issue here?

[00:03:27] Speaker 02:
That the hinge panel in some claims or the bed is constructed such that the pickup has substantially the external appearance of a pickup without the storage facility, storage system built in storage.

[00:03:42] Speaker 00:
And your alternative claim construction is?

[00:03:46] Speaker 02:
A pickup with the storage, built-in storage, looks like a pickup without the built-in storage.

[00:03:51] Speaker 02:
That's what Claire said in the file history.

[00:03:54] Speaker 02:
That's how to overcome rejections.

[00:03:56] Speaker 02:
He said he cited Webster's dictionary.

[00:03:59] Speaker 02:
And he said, external appearance is not magic.

[00:04:02] Speaker 02:
I don't think he was his own lexicographer.

[00:04:05] Speaker 02:
I think he applied the plain, ordinary meaning that external appearance, or substantially the external appearance,

[00:04:11] Speaker 02:
looks like something without it.

[00:04:14] Speaker 02:
And in the file history, what's very interesting, Your Honors, is that the original, there was an office action rejection that said there's no point of reference and gave a 112 rejection.

[00:04:26] Speaker 02:
And Claire responded and said, yes, there is.

[00:04:29] Speaker 02:
It's a pickup truck without the storage, built-in storage is the point of reference as stepped forth in the claim language.

[00:04:37] Speaker 02:
And the examiner agreed.

[00:04:39] Speaker 02:
We pointed that out during the markment process.

[00:04:41] Speaker 02:
And the district court said, no, that's improper.

[00:04:45] Speaker 02:
You don't need a point of reference.

[00:04:47] Speaker 02:
And what the district court said is we're going to look at whether the storage box is not obvious.

[00:04:53] Speaker 02:
And took the point of reference away from a pickup truck without the storage box, with a built-in storage, and compared the two.

[00:05:01] Speaker 02:
And we take issue with that.

[00:05:03] Speaker 02:
So what the district court did is change the focus.

[00:05:06] Speaker 02:
And it was improper.

[00:05:07] Speaker 02:
Plus, we also took issue with injecting the word obvious

[00:05:12] Speaker 02:
into a claim construction in a patent case where a jury has to hear about obvious, under clear and convincing for 103 purposes.

[00:05:20] Speaker 01:
That's a ridiculous argument because this case didn't go to a jury.

[00:05:23] Speaker 01:
So none of whatever your potential problems are with her word choice, and she obviously meant obvious in the colloquial sense and not the section 103 sense, that would only be relevant if it went to a jury and then if we believe the jury was harmfully confused by it.

[00:05:37] Speaker 01:
And none of that is this case.

[00:05:39] Speaker 02:
Except if it gets remanded, Your Honor.

[00:05:41] Speaker 02:
then it does.

[00:05:41] Speaker 02:
And that's one of our points.

[00:05:45] Speaker 00:
You've got to persuade us to remand before you reach that hurdle.

[00:05:48] Speaker 02:
Yes, I do, Your Honor.

[00:05:49] Speaker 02:
I'm well aware of that.

[00:05:51] Speaker 02:
I'll be honest.

[00:05:56] Speaker 02:
I don't think the claims instruction was just flat out wrong.

[00:05:59] Speaker 02:
I just think it could be better and clearer and it created confusion and allowed Chrysler to inject these semantics to argue

[00:06:08] Speaker 02:
and allow the district court to weigh the evidence and say, oh, that's obvious, which is what they did throughout the record.

[00:06:15] Speaker 02:
And that was improper.

[00:06:16] Speaker 01:
I really don't understand your rhetoric about them using semantics.

[00:06:22] Speaker 01:
I mean, it seems very accusational, and it's not well received.

[00:06:26] Speaker 01:
So please stop doing it.

[00:06:27] Speaker 02:
Fair enough.

[00:06:27] Speaker 01:
But what I really don't understand is,

[00:06:33] Speaker 01:
you're thinking the claim construction is quote not really wrong or not all that wrong but it could have been done better well then if I use that claim construction I don't care if your expert says from some vantage points it's not obvious and from others it is I mean here's the picture I'm gonna hold it up for all the students see the big push button see the giant push button on the side that's the opening and closing mechanism pretty

[00:07:00] Speaker 01:
damn obvious to me.

[00:07:01] Speaker 01:
I mean, I don't know.

[00:07:02] Speaker 01:
And you don't want me to decide this as a question of fact on appeal.

[00:07:08] Speaker 01:
However, there are some questions of fact upon which no reasonable juror could conclude otherwise.

[00:07:15] Speaker 01:
Why isn't this one of them?

[00:07:16] Speaker 01:
I mean, look at this giant push button.

[00:07:19] Speaker 01:
This is what opens, in case you all want to know, this is a pickup truck which has a hidden compartment to put your golf clubs, in fact that's what the inventor came up with, a hidden compartment to put your golf clubs in because he was a golfer.

[00:07:30] Speaker 01:
He wanted to hide them somewhere instead of putting them on the flatbed of his truck where they could be seen and stolen.

[00:07:35] Speaker 01:
Also useful, by the way, for tools.

[00:07:37] Speaker 01:
Putting your tools, if you're a construction person, into this hidden compartment.

[00:07:41] Speaker 01:
In his patent, there is

[00:07:44] Speaker 01:
no push button, and he goes to great extent to explain in his patent, the only difference, the only thing you can see are two vertical cut lines in his patent.

[00:07:52] Speaker 01:
So then come along this accused infringing device, and you've got a giant push button there.

[00:07:57] Speaker 01:
I mean, what do you think it is, like a heat-seeking missile?

[00:07:59] Speaker 01:
I mean, no, it's the button to open up the giant not-so-hidden panel.

[00:08:02] Speaker 03:
So what do we do?

[00:08:03] Speaker 03:
Well, you also have raised letters that are quite obvious in the photographs.

[00:08:08] Speaker 01:
Ram box.

[00:08:09] Speaker 02:
On the top.

[00:08:11] Speaker 02:
Your Honor, Judge Moore, you are entirely correct to argue that to a jury.

[00:08:15] Speaker 02:
But if you look at page four of our brief, and you look at the pickup truck without the ram box and the pickup truck with the ram box, if you didn't know what you were looking for, our expert says to a casual observer, you wouldn't know it's there.

[00:08:28] Speaker 02:
And Chrysler went to great pains.

[00:08:30] Speaker 01:
Just to be clear, your picture is, at least in my brief, so black and white that I can't even see at all where the front door and the back door are on this picture.

[00:08:40] Speaker 01:
When the picture instead is in color, and it doesn't matter whether it's blue or white, look at how pronounced it is.

[00:08:47] Speaker 01:
You have a blurry photocopy that doesn't even allow me to delineate the front door from the back door.

[00:08:53] Speaker 02:
Your Honor, the picture you are pointing to of the lock from that vantage point is obvious.

[00:08:59] Speaker 03:
And from the vantage point of looking on the raised lettering, it's obvious.

[00:09:03] Speaker 03:
If you're standing on top and looking down, from standing in the bed and looking down, Judge Waller,

[00:09:09] Speaker 03:
unlike me, and you're looking over the side.

[00:09:12] Speaker 01:
To be clear, this is one, two, three, four, five different pictures.

[00:09:16] Speaker 01:
This one is coming from the back angle.

[00:09:18] Speaker 01:
This is coming from the front looking back.

[00:09:19] Speaker 01:
This is coming from the top looking down.

[00:09:21] Speaker 01:
I mean, the only place I couldn't see this thing is if I was underneath the darn truck.

[00:09:24] Speaker 02:
Your Honor, according to our expert, and he is skilled in this field, to a casual observer, and the claims speak to looking at the pickup truck.

[00:09:35] Speaker 02:
It doesn't say look at the side panel.

[00:09:40] Speaker 01:
According to his expert, why do you need an expert for this?

[00:09:43] Speaker 01:
The whole question is, is this hidden compartment hidden or not?

[00:09:47] Speaker 01:
Any casual observer?

[00:09:48] Speaker 01:
And you're saying to me, your expert tells me what a casual observer would observe.

[00:09:53] Speaker 01:
Do I need an expert?

[00:09:54] Speaker 01:
I mean, am I really?

[00:09:55] Speaker 01:
I'm not an expert in most things, but aren't I at least a casual observer?

[00:09:59] Speaker 02:
Yes, absolutely.

[00:10:00] Speaker 02:
Absolutely.

[00:10:01] Speaker 02:
But you're not on the jury.

[00:10:02] Speaker 02:
You're not on the jury to decide that issue.

[00:10:04] Speaker 00:
Well, you keep going back and forth.

[00:10:05] Speaker 00:
You're going from one extreme to the other.

[00:10:06] Speaker 00:
You're first talking about experts.

[00:10:08] Speaker 00:
suggesting that it takes one skilled in the art, one skilled in the art to construe something.

[00:10:13] Speaker 00:
And then you're juxtaposing that to the complete opposite, which are layman jury.

[00:10:17] Speaker 02:
Judge, the evidence in the record is from an expert who gave a report that explained everything.

[00:10:24] Speaker 02:
So I'm relying on evidence in the record on the Rule 56 that creates an issue of fact.

[00:10:29] Speaker 03:
But the claim, the question is not- But if the expert says that at least in some instances, that is from some angles,

[00:10:37] Speaker 03:
The challenge vehicle simply does not infringe.

[00:10:43] Speaker 02:
How do you prevail?

[00:10:43] Speaker 02:
But he didn't say that.

[00:10:45] Speaker 02:
The element, that's our problem with the claim construction, the element is the bed, is the bed constructed, the entire, everything behind the doors constructed such that the external appearance of the pickup with the storage is substantially similar to a pickup without that storage.

[00:11:04] Speaker 02:
So you have to look at the entire pickup.

[00:11:06] Speaker 02:
And he says, yes, it is.

[00:11:09] Speaker 02:
And you look at the efforts that Chrysler went through to match the color, the contour, make sure it does not look like a utility truck, match the lines perfectly so the cut line goes along through it.

[00:11:20] Speaker 02:
They tried to make it look so it had substantially the external appearance without it.

[00:11:25] Speaker 02:
They look exactly alike if you didn't know what you were looking for and is free to argue to the jury.

[00:11:31] Speaker 02:
And that's what the claim says.

[00:11:32] Speaker 02:
And our issue with the claim construction

[00:11:34] Speaker 02:
is that the district court lumped certain claims of the 795 patent where it says hinge panel and doesn't have the word substantially and uses a storage box with claims of the other patent which says the bed is constructed, built in storage, substantially the external appearance and said we're going to call them all external appearance claims.

[00:11:55] Speaker 01:
So this is a good point.

[00:11:57] Speaker 01:
So let me ask you, did you separately argue these claims and the differing language in these claims?

[00:12:02] Speaker 02:
Absolutely.

[00:12:03] Speaker 01:
And so would you agree that your case is better with regard to the 583 where it says bed, which is a larger portion of the truck, and substantially, which means not necessarily all, that your case is better there than it is for the 795, which only says the hinged portion

[00:12:21] Speaker 01:
which is just this portion along the top and doesn't have the word substantially.

[00:12:24] Speaker 02:
There are clearly differences.

[00:12:26] Speaker 02:
And for purposes of purely infringement purposes... I didn't ask if there were differences.

[00:12:29] Speaker 01:
I said is your case much stronger for 583 than for 795?

[00:12:32] Speaker 01:
Yes.

[00:12:33] Speaker 02:
For infringement, yes.

[00:12:34] Speaker 01:
And for the claim construction you seek?

[00:12:36] Speaker 02:
Yes.

[00:12:37] Speaker 02:
We believe that the claim construction for both patents and for this element in both patents is simply plain, ordinary meaning.

[00:12:44] Speaker 02:
Just like hinge panel didn't have to be construed, even though Chrysler argued for a definition and the special mass and the district court said, no, there's nothing special about those words, we think the same rationale applies.

[00:12:56] Speaker 02:
External appearance substantially are not magic words.

[00:13:00] Speaker 02:
It looks like a pickup truck without the built-in storage.

[00:13:03] Speaker 02:
Or it looks substantially like a pickup truck without the built-in storage.

[00:13:08] Speaker 02:
And if I may, I see the yellow lights on.

[00:13:11] Speaker 02:
I reserve the balance of my time.

[00:13:12] Speaker 00:
Thank you.

[00:13:25] Speaker 04:
May it please the court.

[00:13:27] Speaker 04:
This case to me is a classic claim construction issue.

[00:13:31] Speaker 04:
The question is whether the patent claims are broad enough to cover plainly visible and obvious storage or whether they're limited from the patent claims themselves or from the specification disclosure to what the district court called not obvious storage or hidden storage.

[00:13:48] Speaker 01:
But the patent claim says the bed being constructed such that the pickup has

[00:13:53] Speaker 01:
substantially the appearance of a pickup without the built-in storage.

[00:13:58] Speaker 01:
So given the breadth of that claim, you're focusing on the whole bed, not just where the unit is, the whole bed.

[00:14:04] Speaker 01:
That's everything from the doors back, right?

[00:14:07] Speaker 01:
Right?

[00:14:08] Speaker 01:
Making sure I know what the bed is.

[00:14:09] Speaker 04:
Yes, the part behind the cab, Your Honor.

[00:14:11] Speaker 01:
Everything behind the cab.

[00:14:12] Speaker 01:
So the whole bed, just to have substantially the same appearance, okay?

[00:14:18] Speaker 01:
So the whole bed.

[00:14:18] Speaker 01:
So here's your pictures I keep holding up.

[00:14:20] Speaker 01:
The only difference

[00:14:21] Speaker 01:
in this truck as compared to one without this hidden box is the push button there and this cut line here and that's it.

[00:14:33] Speaker 01:
So the whole rest of the bed, the interior of the bed, the back side of the bed, the other side of the bed, all is identical.

[00:14:42] Speaker 01:
The shape of the bed, the contour of

[00:14:45] Speaker 01:
this part of the truck, the entire bed, the contour of the bed.

[00:14:49] Speaker 01:
Everything else is identical, but for those two differences.

[00:14:56] Speaker 01:
Why doesn't that meet substantially the same appearance?

[00:14:59] Speaker 04:
So that's not completely accurate.

[00:15:02] Speaker 04:
The bed actually from the interior is wider than a conventional bed.

[00:15:05] Speaker 04:
That's evidence of the record to allow for the storage.

[00:15:08] Speaker 04:
So the wall actually moves in a bit.

[00:15:10] Speaker 04:
Then you have the cut line with the horizontal seam that's about midway up the bed and the lock and the ram box.

[00:15:18] Speaker 04:
Those are the differences.

[00:15:19] Speaker 04:
The contour is the same.

[00:15:20] Speaker 04:
If you take a look at the claim, Your Honor,

[00:15:22] Speaker 04:
contour matching the front of the bed is already a claimed element.

[00:15:26] Speaker 04:
Special Master Thomas in this case actually pointed out that this claim must be something more than simply matching contours.

[00:15:34] Speaker 04:
The 583 claim language already requires the cab bed.

[00:15:37] Speaker 01:
Yes, this says the bed has to be substantially the appearance of the pickup.

[00:15:43] Speaker 01:
I don't know, why isn't this

[00:15:44] Speaker 01:
at least a question of fact for the jury.

[00:15:47] Speaker 01:
I mean, yeah, I see that giant button.

[00:15:49] Speaker 01:
It jumps out at me for sure.

[00:15:51] Speaker 01:
But why isn't it at least in the cut lines?

[00:15:55] Speaker 01:
But keep in mind, the patent expressly had its own cut lines.

[00:15:58] Speaker 01:
They were vertical, not horizontal, but they had vertical cut lines.

[00:16:02] Speaker 04:
Yeah, they were inconspicuous and minimized so that you couldn't tell there was a hinge panel.

[00:16:06] Speaker 04:
Here you can clearly tell there's a hinge panel.

[00:16:08] Speaker 04:
All of their witnesses admitted it and their expert admitted it.

[00:16:11] Speaker 04:
So the features put together

[00:16:13] Speaker 04:
sort of tell you that there is storage there.

[00:16:16] Speaker 04:
So the bed is substantially different.

[00:16:18] Speaker 04:
If you look at the spec, the issue of substantially different comes down to whether you can tell there is storage there or not there.

[00:16:23] Speaker 04:
But I do want to step back one second.

[00:16:26] Speaker 04:
The issue about whether the claims were argued different below with respect to the 583 and with respect to the 795 was solely the word substantially.

[00:16:34] Speaker 04:
Hinged portion, or the hinged panel being in the claim construction, that was not taken up as an objection to the special master nor presented to this court.

[00:16:43] Speaker 04:
So the claim construction that focuses on, for both the 583 and the 795 focuses on the hinge panel, that hasn't been appealed.

[00:16:51] Speaker 04:
The one difference between the two sets of claims that has been appealed is whether it substantially makes a difference between the two claims.

[00:16:58] Speaker 04:
As the Court knows, the claim construction issue was submitted for report and recommendation in the Special Master Thomas.

[00:17:05] Speaker 04:
He addressed that issue.

[00:17:07] Speaker 01:
But what we do, aren't there some dependent claims which, for example,

[00:17:12] Speaker 01:
say things like the latch and latch mechanism is unexposed and mounted to it said at least one storage box.

[00:17:21] Speaker 01:
So aren't there some dependent claims, I'm looking at the 795 prosecution history, that actually have unexposed locks and latches kind of like your push button?

[00:17:34] Speaker 04:
Has unexposed?

[00:17:35] Speaker 01:
Exposed, thank you.

[00:17:37] Speaker 01:
Exposed?

[00:17:38] Speaker 04:
So stepping back to claim construction and the differences between the 795, this is sort of a roundabout way to get there.

[00:17:47] Speaker 04:
The answer is you can have them exposed.

[00:17:49] Speaker 04:
They're exposed in the figures in the patent, but they are still concealed behind the tailgate.

[00:17:54] Speaker 04:
You can see them.

[00:17:55] Speaker 04:
They're not in the cab.

[00:17:57] Speaker 04:
There is nothing in the patent spec that says the locker latch can be visible.

[00:18:02] Speaker 04:
And in fact, the patent says just the opposite.

[00:18:05] Speaker 04:
So we know

[00:18:06] Speaker 04:
that the only differences that were contemplated were the two vertical cuts.

[00:18:10] Speaker 04:
If you take a look at the 583 patent, your honor, column 4, lines 54 to about 58, and I'd like to touch on the present invention area of client construction law in a second, because that, even if the dependent claims do say unexposed, the present invention can operate as a disavow.

[00:18:30] Speaker 04:
under this court's case law.

[00:18:32] Speaker 04:
But that specific sentence after discussing what the present invention is and how you convert from a conventional bed to Mr. Clare's hidden bed says, thus, one would not readily recognize the modification to the bed and therefore those with the intent to steal tools would not recognize the hidden storage arrangement.

[00:18:50] Speaker 04:
If this patent spec actually did disclose visible hinges, it would point that out.

[00:18:55] Speaker 04:
That would be a modification that one would recognize.

[00:18:57] Speaker 04:
If it had exposed latches, that would be a modification someone would recognize.

[00:19:01] Speaker 04:
It says in the spec three times that the only difference between an unmodified bed and the modified bed are the two vertical cuts.

[00:19:09] Speaker 04:
And if you take a look at Figure 5, you'll see that they are placed at places where people might think that they are seams for the sheet metal.

[00:19:16] Speaker 04:
You can't tell there's a hinge panel there.

[00:19:17] Speaker 01:
But what about these dependent claims?

[00:19:19] Speaker 01:
Like I said, in the 583 number, let's see, 46, the only element added is hinges that are not exposed to an external view of the pickup.

[00:19:29] Speaker 01:
That's it.

[00:19:30] Speaker 01:
There's no other words.

[00:19:31] Speaker 01:
So wouldn't that mean the independent claim has to allow for both hinges that are viewed and hinges that are not viewed?

[00:19:39] Speaker 04:
Under the doctrine of claim differentiation, yes, that would be the normal construction.

[00:19:43] Speaker 04:
But exposed doesn't mean, not exposed doesn't necessarily mean that they have to be conspicuous or a modification that's apparent.

[00:19:52] Speaker 04:
They could be inside the bed where you can't see them from the outside, the outward appearance.

[00:19:56] Speaker 00:
And sometimes claims differentiation doesn't carry the day.

[00:19:59] Speaker 04:
That's correct.

[00:20:00] Speaker 04:
As the court knows, it's a guide, not a rigid rule.

[00:20:02] Speaker 04:
But that turns me to, we do think the claim construction is correct and requires hidden storage.

[00:20:08] Speaker 04:
It requires the storage box to be obvious.

[00:20:11] Speaker 04:
The way you get there, you can get there in two different ways.

[00:20:14] Speaker 04:
One sort of resolves this claim differentiation rule.

[00:20:17] Speaker 04:
I think the plain meaning of the claim term, where you have a storage box

[00:20:22] Speaker 04:
in a truck but the external appearance, the bed is constructed such that the external appearance of a pickup without storage, that plain meaning suggests that the truck has storage but looks like it doesn't have storage.

[00:20:37] Speaker 04:
That's how the district court interpreted it.

[00:20:39] Speaker 04:
That means it's hidden.

[00:20:40] Speaker 04:
The plaintiffs in this case said, no, no, no, it means, and the court has asked them about their alternative claim construction.

[00:20:45] Speaker 04:
We haven't really seen one, at least in their opening brief, what they are really looking for, other than just use the claim language.

[00:20:51] Speaker 04:
But there is an issue of scope here.

[00:20:53] Speaker 04:
And the question that they raise is, no, no, no, that language under its plain meaning just means matching the contours, paint, and texture.

[00:21:01] Speaker 04:
As I said for the 583, contour matching is already required by a different element, so it can't mean that.

[00:21:06] Speaker 04:
Special Master also agreed with that.

[00:21:08] Speaker 04:
But more importantly, you then resolve that issue by resort to the spec.

[00:21:12] Speaker 04:
In the passage I read on column four, where one would not readily recognize modifications to the bed, tells you which of those plain meanings, to the extent there is any ambiguity in the plain meaning, we don't think there's any, tells you which one's correct.

[00:21:28] Speaker 04:
It has to be the one that makes the modifications not recognizable.

[00:21:32] Speaker 04:
In other words, not obvious.

[00:21:33] Speaker 04:
It can't be the one that allows for a plainly visible storage box like the RAM box

[00:21:37] Speaker 04:
that has the same paint color and the same dimensions to fall within the claim scope because those modifications are recognizable.

[00:21:45] Speaker 04:
That's one way we get to the correct claim construction, plain language of the claim in the context of the spec to tell you which of the two proposals are consistent or inconsistent with that.

[00:21:57] Speaker 04:
This patent spec operates as a disavowal to the extent that court believes that the plain meaning of this claim phrase is broader than hidden storage.

[00:22:08] Speaker 04:
There is a disavowal under the GE and Thorner line of cases.

[00:22:12] Speaker 04:
And I can show you what I mean if the court would turn in the red brief to page 5.

[00:22:21] Speaker 04:
Like most patents, this one starts with an explanation of the problem and solution.

[00:22:26] Speaker 04:
This patent specifically identifies the two pieces of prior art that it thinks are exemplary.

[00:22:31] Speaker 04:
Those are pictured on the top of page five.

[00:22:34] Speaker 04:
If you take a look at the one on the right, the Lawrence patent, the 430, you have a hinge panel that matches the contours that closes and creates a storage space.

[00:22:47] Speaker 04:
The plaintiff's view is that hidden in this patent simply means concealed behind a paddle and you can't see what's in it.

[00:22:53] Speaker 04:
Well, this shows that that's not correct.

[00:22:55] Speaker 04:
This one has a space behind the panel that you can't see.

[00:22:59] Speaker 04:
But despite that, it says in describing these, these are satisfactory for their intended purpose, but despexis, but still an attraction for theft.

[00:23:09] Speaker 04:
So what does it mean?

[00:23:10] Speaker 04:
These modifications, despite having the same contour, and it's a patent drawing, but presumably the same color, is an attraction for theft, because you can see the cut lines.

[00:23:18] Speaker 04:
And the cut lines here are as visible as the ones in the picture you held up, Judge Moore, and doesn't have the big shiny push-button lock to tell you that they're storage.

[00:23:28] Speaker 04:
The patent specification goes on to say, at the end of that column, and this discussion is in column one, lines 48 to 52, it says, thus, the pickup, after discussing what the invention is going to be, how you convert it into hidden storage, it says, thus, the pickup can be used for pleasure or work without the appearance of its storage utility capability, its capability.

[00:23:53] Speaker 04:
It has storage, but its capability is not noticeable because that panel is not obvious or is hidden into the trash.

[00:24:01] Speaker 04:
That distinguishing of the prior artworks is a disavowal when you look at it in combination with the various uses of the present invention or the invention that we set forth on page six and seven of our brief, of the red brief.

[00:24:16] Speaker 04:
Those are just some examples.

[00:24:17] Speaker 04:
It's a short patent.

[00:24:18] Speaker 04:
Reading through it, you can't come away with anything other than this is the type of patent that the present invention law was designed for.

[00:24:26] Speaker 04:
They used those words to say this was our invention.

[00:24:29] Speaker 04:
We didn't want to be like the Lawrence patent where you could see the panel opening.

[00:24:32] Speaker 04:
We wanted ours hidden.

[00:24:36] Speaker 04:
Mr. Souter, if I could turn from claim construction, Mr. Souter said that his expert has given testimony that the RAM box infringes.

[00:24:43] Speaker 04:
As the court noticed, he does, from A5200 to A5208, everything about the hinge panel is noticeable or apparent.

[00:24:53] Speaker 04:
He won't use the word obvious.

[00:24:54] Speaker 04:
He says that he doesn't have a definition from the word obvious, but thinks it's different from apparent.

[00:24:58] Speaker 04:
The dictionary, of course, one is a synonym for another.

[00:25:02] Speaker 04:
He says it's apparent, it's evident, all the words you could think of to differentiate from this patent.

[00:25:08] Speaker 04:
When I asked him at his deposition, okay, so if you think this isn't obvious, I couldn't understand once we won claim construction why they didn't stipulate to non-infringement.

[00:25:20] Speaker 04:
His answer is pretty telling.

[00:25:22] Speaker 04:
And they quote this paragraph in their brief and say this is their key evidence from their expert.

[00:25:27] Speaker 04:
It's at A5201.

[00:25:34] Speaker 04:
And it's when it was suggested that we ask the correct question to the expert using the court's claim construction.

[00:25:41] Speaker 04:
And it says, in your opinion, is the hinge panel constructed in such a way that the storage box is obvious?

[00:25:46] Speaker 04:
And he says, no, sir.

[00:25:47] Speaker 04:
In this case, the hinge panel is constructed in such a way storage box is not obvious.

[00:25:50] Speaker 04:
That's what they say their evidence is.

[00:25:53] Speaker 04:
That's just a bare conclusion.

[00:25:54] Speaker 04:
The case law says that's not enough to reject summary judgment.

[00:25:57] Speaker 04:
This is not a classic battle of the experts.

[00:25:59] Speaker 04:
You have to have some support.

[00:26:01] Speaker 04:
My next question, how would you construct the hinge panel so the storage box was obvious?

[00:26:06] Speaker 04:
And he says, well, I'll take your former suggestion, it was trying to figure out the patent, that we'll make it out of glass.

[00:26:12] Speaker 04:
So the only way to get around their patent is to take the hinge panel and make it out of glass so you can see inside.

[00:26:17] Speaker 04:
Their interpretation of the court's claim construction is you have to see inside the box for the box to be obvious.

[00:26:23] Speaker 04:
If you have an opaque hinge panel and you close it, you are not obvious because you can't see inside.

[00:26:31] Speaker 04:
And the passage continues down to line 22 of page 122, where I say, is there any other way besides making it with glass?

[00:26:39] Speaker 04:
And this is an expert that prepared a report and studied this.

[00:26:41] Speaker 04:
He said, no, none that come to mind.

[00:26:45] Speaker 04:
I'd like to turn back, Judge Moore, to your question about substantially.

[00:26:48] Speaker 04:
That issue was discussed below by the special master, and I believe by the district court,

[00:26:55] Speaker 04:
The starting point is the 795 patent.

[00:26:57] Speaker 04:
It doesn't say substantially.

[00:26:59] Speaker 01:
Why do we need expert testimony here?

[00:27:02] Speaker 01:
I mean, maybe I understand why you would need expert testimony with regard to the design of the thing.

[00:27:09] Speaker 01:
But if the only question before the court, which it seems to have been at this point, is, is this box obvious not to an expert, right?

[00:27:18] Speaker 01:
But isn't it obvious to a normal person?

[00:27:21] Speaker 01:
Isn't that the question?

[00:27:22] Speaker 01:
Because the whole patent is about preventing theft.

[00:27:25] Speaker 01:
You're not just worried about death by experts.

[00:27:28] Speaker 01:
You're about death by the average person.

[00:27:30] Speaker 04:
Yes, I agree with you.

[00:27:32] Speaker 04:
We actually had our own expert who was an auto design person.

[00:27:38] Speaker 01:
Why did you have an expert?

[00:27:40] Speaker 01:
Why is this a classic battle of the experts when the only question is would an ordinary passerby of a pickup truck have noticed this thing or not?

[00:27:49] Speaker 01:
Why do you need an expert for that?

[00:27:51] Speaker 04:
Well, our expert, who was unrebutted, had a background in auto design.

[00:27:55] Speaker 01:
Why do I need a background in auto design?

[00:27:58] Speaker 01:
No.

[00:27:58] Speaker 03:
Don't you want a person of ordinary skill in the art of auto theft?

[00:28:02] Speaker 01:
Where's the criminal lawyer that was here a minute ago?

[00:28:07] Speaker 01:
Maybe he's got some former clients.

[00:28:09] Speaker 04:
In the background of auto design, this person actually designs vehicles to affect how ordinary people see them.

[00:28:15] Speaker 04:
And so the issue was, is this storage box obvious?

[00:28:18] Speaker 04:
Did they design it in a way that was obvious?

[00:28:20] Speaker 04:
And he could speak to that.

[00:28:21] Speaker 04:
He was unrebutted.

[00:28:22] Speaker 04:
Dr. Aiken was a mechanical engineer.

[00:28:24] Speaker 04:
When I deposed him, I actually asked if he had any expertise on determining whether something was obvious or not.

[00:28:29] Speaker 04:
And he said, no, he didn't.

[00:28:30] Speaker 04:
But he did, as an ordinary person, see all the distinctions and conclude that it was obvious and evident.

[00:28:37] Speaker 04:
You can see the hinge panel and the push button.

[00:28:39] Speaker 04:
We also asked their two party witnesses, Mr. Clarence and Mr. Long.

[00:28:43] Speaker 04:
They're parties here.

[00:28:44] Speaker 04:
Their statements are binding and missions.

[00:28:46] Speaker 04:
They also found it obvious.

[00:28:48] Speaker 01:
In fact, of all the witnesses that were spoken to... I don't think they found it obvious.

[00:28:52] Speaker 01:
I think they said various aspects were apparent, is my recollection of their testimony.

[00:28:57] Speaker 01:
Where did they precisely testify it was, quote, obvious?

[00:29:00] Speaker 01:
I want to see that word in their testimony.

[00:29:02] Speaker 01:
Or your time is up, and you've done well so far.

[00:29:05] Speaker 01:
So if you really want to go down this road, I'll make you walk me through the testimony.

[00:29:10] Speaker 04:
Yes, if I could very quickly, Your Honor.

[00:29:12] Speaker 01:
Go for it.

[00:29:20] Speaker 04:
Could you just bear with me for one second?

[00:29:28] Speaker 04:
So Mr. Long's testimony is at 2968, pages 181 and 184.

[00:29:35] Speaker 04:
It's actually set in our brief, might be easier.

[00:29:39] Speaker 04:
We have it quoted in our brief if that's easier, page 20.

[00:29:42] Speaker 03:
2968.

[00:29:43] Speaker 03:
2968.

[00:29:46] Speaker 03:
Let's see here.

[00:29:54] Speaker 04:
181, 182, and then 184 is the conclusion.

[00:30:01] Speaker 04:
It says, is the storage obvious from the external appearance?

[00:30:08] Speaker 04:
Yeah.

[00:30:09] Speaker 04:
Is the storage obvious from the external appearance of the truck?

[00:30:11] Speaker 04:
That's 181 at line 16, Your Honor.

[00:30:16] Speaker 04:
Yeah.

[00:30:16] Speaker 04:
I can see it is the answer.

[00:30:18] Speaker 03:
I think I said if I can see it, it's obvious.

[00:30:22] Speaker 03:
Yes.

[00:30:23] Speaker 01:
Okay.

[00:30:24] Speaker 01:
And then later... But that kind of can't be right, can it?

[00:30:26] Speaker 01:
Because we already know the patent allows for vertical cut lines.

[00:30:29] Speaker 01:
I can see those.

[00:30:31] Speaker 01:
So that actually can't be the right answer.

[00:30:34] Speaker 04:
It's a great point in the district court.

[00:30:36] Speaker 04:
There was also a written description issue on claims that did not have this term that were very broad.

[00:30:41] Speaker 01:
We're not going to give you more time to cover that.

[00:30:42] Speaker 01:
So if I can see it, the patent, the only embodiment in the patent, I can see those vertical cut lines.

[00:30:49] Speaker 01:
That can't be the standard for whether it's obvious or not.

[00:30:51] Speaker 04:
You can see the cuts, but you can't tell it's storage.

[00:30:53] Speaker 04:
That's the difference.

[00:30:55] Speaker 04:
The modifications cannot add up to equaling storage.

[00:30:58] Speaker 04:
And here, with two vertical cuts that are not in places that are inconspicuous and a horizontal one in a place that a truck will never have any push button, those distinctions add up to making the storage obvious.

[00:31:10] Speaker 04:
And that's why Mr. Long testified that way.

[00:31:12] Speaker 04:
Mr. Clair also, as a party opponent, also admitted to use the word obvious.

[00:31:18] Speaker 04:
Thank you, Your Honor.

[00:31:30] Speaker 02:
Thank you, Your Honor.

[00:31:31] Speaker 02:
The record is clear.

[00:31:33] Speaker 02:
The panel is saying, well, storage is obvious.

[00:31:37] Speaker 02:
Infants are resolved in our favor.

[00:31:39] Speaker 02:
The evidence in the record is you don't know what's there.

[00:31:42] Speaker 02:
It could be a jack for a tire.

[00:31:44] Speaker 02:
It could be a fuse box.

[00:31:45] Speaker 02:
It could be a wire.

[00:31:46] Speaker 02:
You don't know what's there just by seeing cut lines and a button.

[00:31:50] Speaker 02:
That's evidence in the record that how do you know that the storage box itself that you cannot see is obvious.

[00:31:56] Speaker 02:
That's one of the problems with the claim construction and what's happening, Your Honor, also with how the court construed the claims and applied the claims.

[00:32:04] Speaker 02:
But column three of the 583 patent says in an embodiment.

[00:32:08] Speaker 02:
And the specification is clear that these are certain embodiments.

[00:32:12] Speaker 02:
This is not a case of this eval, of this is the invention.

[00:32:15] Speaker 02:
The description of the figure says in these embodiments.

[00:32:19] Speaker 02:
But column three,

[00:32:20] Speaker 02:
Up there it says that the described method may be carried out by making a pair of vertical cut lines.

[00:32:26] Speaker 02:
It may be hinged, may include providing a latch, and a lock may also be provided.

[00:32:33] Speaker 02:
That's in Claim 3, the first full paragraph.

[00:32:36] Speaker 02:
So there are clearly situations in the specification and the file history are clear that you can have things

[00:32:44] Speaker 02:
that are outwardly may indicate something's there but still meet the element of the claim.

[00:32:49] Speaker 03:
Given your argument, the distinction in the patent with rectangular utility trucks and the photograph at A6629, what you're saying is that's

[00:33:04] Speaker 03:
not obvious, even though they're distinguishing from it, because there could be an electrical utility box inside.

[00:33:10] Speaker 02:
But to the casual observer, you see a utility box going down the street, you know there's something in there that's useful.

[00:33:16] Speaker 02:
His purpose, and I loathe to argue the purpose, because under the EPAS case and its progeny, a purpose is irrelevant for the claim language.

[00:33:24] Speaker 02:
You cannot import a limitation that storage was the purpose, therefore it's in the claims.

[00:33:31] Speaker 02:
But he was distinguishing from utility boxes.

[00:33:33] Speaker 02:
All the prior art that was discussed was those boxy AT&T trucks that come up to your house or whatever.

[00:33:40] Speaker 02:
Those are utility trucks or those boxes at the silver corrugated metal boxes where you know something's there.

[00:33:47] Speaker 02:
He called this a trunk in a truck.

[00:33:50] Speaker 02:
It's no different than when I took my kids to soccer when they were little and I said, put your backpack in the trunk.

[00:33:55] Speaker 02:
I don't want to see it in open view in the backseat.

[00:33:58] Speaker 02:
That deters theft.

[00:34:00] Speaker 02:
It may not eliminate theft.

[00:34:02] Speaker 02:
If someone wants to rob my trunk, they can.

[00:34:04] Speaker 02:
But they don't know what's there.

[00:34:06] Speaker 02:
And that's what he was trying to capture in his invention is you don't see it in the backseat, whether it's your purse, whether it's your golf clubs, whether it's your kid's book bag coming home from school when you're taking him for a snack.

[00:34:17] Speaker 02:
You don't know.

[00:34:18] Speaker 02:
And as long as it has substantially the external appearance of a pickup truck without that storage in there, that's the invention.

[00:34:28] Speaker 02:
A utility truck.

[00:34:29] Speaker 02:
doesn't have the external appearance of a pickup truck.

[00:34:33] Speaker 02:
So there was no disavowal.

[00:34:35] Speaker 02:
And Judge Moore, I'd invite you to look at the record we provided, the color photos from Dr. Aiken's report that show that you put them side by side.

[00:34:44] Speaker 02:
I apologize for the grainy photocopy in our brief, but we did point to where in the appendix there are actual color photos, because

[00:34:54] Speaker 02:
It shows that they're from different perspectives.

[00:34:57] Speaker 02:
There's also a white truck.

[00:35:00] Speaker 02:
There are the pictures Dr. Aiken took.

[00:35:03] Speaker 02:
Black truck was one of the most popular colors.

[00:35:05] Speaker 02:
Does it deter theft?

[00:35:07] Speaker 02:
Do you see it?

[00:35:08] Speaker 02:
Now, I mean, I point to you, Judge Wallach, and say, look here.

[00:35:11] Speaker 02:
It's like, don't look at the elephant in the room.

[00:35:14] Speaker 02:
Once you know there's an elephant in the room, you cannot not know it's there.

[00:35:17] Speaker 02:
But to someone that says it has the contour, the shape, it doesn't look like a utility truck, doesn't have a cross box,

[00:35:23] Speaker 02:
It's for the jury to decide.

[00:35:26] Speaker 02:
And our issue there, Your Honor.

[00:35:29] Speaker 02:
I'm sorry?

[00:35:30] Speaker 00:
Final thought.

[00:35:31] Speaker 02:
Oh, yes.

[00:35:31] Speaker 02:
Final thought.

[00:35:33] Speaker 02:
This is summary judgment.

[00:35:35] Speaker 02:
There's evidence in the record.

[00:35:37] Speaker 02:
All inferences are in our favor.

[00:35:39] Speaker 02:
All your comments are good, but they go to a jury.

[00:35:44] Speaker 02:
Those are arguments to counsel.

[00:35:46] Speaker 02:
You can't weigh the evidence, and that's our issue with the summary judgment.

[00:35:49] Speaker 02:
Thank you.

[00:35:49] Speaker 00:
Thank you.

[00:35:50] Speaker 00:
We thank both counsel, the cases submitted,