[00:00:00] Speaker 03:
Knowledge is ink versus sud, chem E A G.

[00:01:03] Speaker 03:
Mr. Nutter, did I pronounce your name right?

[00:01:06] Speaker 03:
Yes, you did, your honor.

[00:01:07] Speaker 03:
All right.

[00:01:09] Speaker 03:
And you reserve five minutes for rebuttal, is that correct?

[00:01:11] Speaker 03:
Yes, your honor.

[00:01:12] Speaker 03:
All right, you may proceed.

[00:01:13] Speaker 03:
Thank you.

[00:01:14] Speaker 02:
May I please record on behalf of CSP Technologies, which is a leading innovator in packaging for moisture sensitive items like diabetes test strips that have to be kept in containers and keep moisture out of the containers.

[00:01:31] Speaker 02:
This case relates to one of CSP's patents, the 137 patent, and a patent infringement claim against Clarion, the appellee, and specifically relating to the district court's claim construction of one term upper housing portion of the container.

[00:01:45] Speaker 01:
I'm sorry.

[00:01:46] Speaker 01:
This is a housekeeping matter.

[00:01:47] Speaker 01:
There's a continuation patent, 778 patent.

[00:01:51] Speaker 02:
Yes, your honor.

[00:01:52] Speaker 02:
What's the status of that patent?

[00:01:54] Speaker 02:
That patent was subject to an IPR proceeding.

[00:01:58] Speaker 02:
And recently the claims were determined to be unpatentable and then that, recently a notice of appeal relating to that patent was filed as well.

[00:02:07] Speaker 00:
Okay.

[00:02:09] Speaker 01:
And there's claims there to a single piece container, right?

[00:02:15] Speaker 02:
There is a dependent claim that specifically recites a single piece container and that obviously was filed after the proceedings in this, the cases before the court today.

[00:02:28] Speaker 02:
where several of Clarion's arguments including that upper housing portion requires it to be separate and distinct.

[00:02:35] Speaker 02:
So some of those issues were addressed in that later patent.

[00:02:40] Speaker 02:
Okay.

[00:02:41] Speaker 02:
Thanks.

[00:02:42] Speaker 02:
The claim language that's at issue here today is upper housing portion of the container and specifically the district court erred by construing upper housing portion of the containers to require an upper housing portion of the container that is separate and distinct from the container base.

[00:02:58] Speaker 02:
If we start with the claim language, the claim relates to a container and a lid.

[00:03:03] Speaker 02:
And one of the first elements is that the lid is attached to the container by a hinge at the upper housing portion of the container.

[00:03:12] Speaker 02:
And then the claim goes on to recite a container base.

[00:03:15] Speaker 02:
There's nothing in the claim language itself that requires that the upper housing portion be separate from the container base.

[00:03:23] Speaker 02:
Merely indicates where on the container the lid is attached by a hinge.

[00:03:28] Speaker 02:
And if we start with the plain and ordinary meaning of this phrase, upper housing portion of the container, it merely means the upper part of a container that houses the contents, these test strips or whatever the case may be, with the base and the lid.

[00:03:42] Speaker 02:
There's nothing about any of those terms that we use every day and that want to skill in the art, understand.

[00:03:48] Speaker 01:
I think if we were just looking at the claim language in a vacuum, then you would have a real argument about what does it really mean to

[00:03:58] Speaker 01:
reference an upper housing portion, should that really be deemed to be a separate element from the base of the container.

[00:04:05] Speaker 01:
But as you know, a patent's an integrated legal document, so we have to read the entire patent.

[00:04:10] Speaker 01:
And after we read the patent, do we try to figure out what does the claim language mean?

[00:04:16] Speaker 01:
And so to me, this case is all about the specification and all the references to upper housing, upper housing portion, and even upper component.

[00:04:24] Speaker 01:
where I think there's an argument that can be made that all three of those terms are being used interchangeably by the patent drafter.

[00:04:33] Speaker 02:
So I agree with you that we need to look at the specification and talk about that.

[00:04:37] Speaker 02:
I just wanted to start with the plain ordinary meaning, make it clear that there's nothing about any of those terms that require it be separate and distinct, including housing.

[00:04:45] Speaker 02:
That term does not mean separate and distinct.

[00:04:48] Speaker 02:
And if we do look at the specification, we believe the specification is consistent with that plain ordinary meaning.

[00:04:55] Speaker 02:
The patent discloses containers and lids.

[00:04:58] Speaker 02:
There's no argument that it discloses one-piece containers.

[00:05:01] Speaker 02:
It discloses two-piece containers.

[00:05:03] Speaker 02:
It uses different language to refer to those two-piece containers.

[00:05:07] Speaker 02:
It uses upper component.

[00:05:08] Speaker 02:
It uses upper housing.

[00:05:10] Speaker 02:
And when it specifically uses upper housing, it uses permissive language.

[00:05:14] Speaker 02:
It says the language that both parties continually recite to is in column four.

[00:05:20] Speaker 02:
You have a one-piece container or in another embodiment.

[00:05:24] Speaker 02:
You have a container with an upper housing portion that can be molded separately from the base.

[00:05:30] Speaker 02:
That permissive language is not any kind of exclusion or disclaimer.

[00:05:34] Speaker 02:
It's merely pointing out that you can mold part of the container separately.

[00:05:39] Speaker 02:
Just like the patent talks about, the container and lid can be molded together or separately.

[00:05:44] Speaker 02:
These are plastic parts.

[00:05:45] Speaker 02:
But where does it ever say that they can be molded together?

[00:05:49] Speaker 02:
It doesn't expressly state that, Your Honor, but by

[00:05:52] Speaker 02:
the permissive language that can be molded is not an exclusion or a disclaimer of one-piece containers with upper housing portions.

[00:06:01] Speaker 01:
Well, I guess if that was the only statement in the spec, then again, I think maybe you might be on to something that maybe that there's some equivocation there.

[00:06:12] Speaker 01:
But then there's all the other references to upper housing and upper housing portion.

[00:06:17] Speaker 01:
It's coming right at us, for example, right in the abstract.

[00:06:22] Speaker 01:
No, container assemblage further comprising base portion and upper housing portion.

[00:06:28] Speaker 01:
The upper housing portion is capable of being snap fit into the base portion by employing a lip seal.

[00:06:33] Speaker 01:
I mean, to me, it looks clear that the inventor there is communicating.

[00:06:40] Speaker 01:
We have two different elements of a container assembly, a base portion and an upper housing portion, and they are snap fit sealed together.

[00:06:49] Speaker 02:
The patent does repeat that same phrase that it can be molded separately a few times.

[00:06:55] Speaker 02:
I mean, this is not a case where it repeatedly and consistently goes through and says, this invention is a two-piece container with an upper housing.

[00:07:03] Speaker 02:
This is simply not one of those cases.

[00:07:06] Speaker 02:
And the fact that it uses other terminology, upper component, sometimes to refer to two-piece containers,

[00:07:12] Speaker 02:
We think weighs heavily in the fact that this is not, we did not exclusively use upper housing to refer to a separate and distinct two-piece container.

[00:07:22] Speaker 02:
There's various different languages throughout the patent.

[00:07:27] Speaker 02:
And there's certainly just the fact that you describe an embodiment with a particular phrase as a matter of law that is not enough to impart that limitation to the claim, right?

[00:07:38] Speaker 02:
There has to be some

[00:07:40] Speaker 02:
clear definition or disclaimer.

[00:07:42] Speaker 02:
Both the district court and clarion appellee have admitted there's no definition in the patent.

[00:07:48] Speaker 02:
The patentee did not define upper housing portion.

[00:07:51] Speaker 02:
So they would have to show that there's some clear disclaimer.

[00:07:55] Speaker 02:
And the fact that there's permissive language used, that there's other language used to describe one and two-piece containers, this is not a case where there was a clear disclaimer in the specification of one-piece containers.

[00:08:08] Speaker 01:
Do you take it that our law on claim construction and understanding claim terminology in light of the specification requires when it comes to lexicography or disclaimer, something so specific as like a glossary or a solemn vow that they're disclaiming something?

[00:08:30] Speaker 01:
I don't think our law is so rigid that it requires anything like that.

[00:08:35] Speaker 01:
You know, there's enough case law that says that you can implicitly define something.

[00:08:42] Speaker 01:
You can communicate as a patent drafter a clear intent that, as a matter of context, doesn't require a true glossary definitional moment or a solemn disclaimer vow.

[00:08:56] Speaker 02:
Certainly no solemn disclaimer, Your Honor, but I think a lot more than what we have in this case.

[00:09:01] Speaker 02:
And I think if you look at the cases that Appellee has cited,

[00:09:05] Speaker 02:
Those cases have repeated and consistent use, or where there actually is a definition.

[00:09:10] Speaker 02:
They said, this term means X. And there certainly were no permissive language in any of the cases they cited.

[00:09:18] Speaker 02:
And I believe the I4I case that we have in our briefs is instructive, where in that case, in the specification, they said, this can be edited without this content.

[00:09:31] Speaker 02:
And the court said, that's not enough to say that you've disclaimed

[00:09:35] Speaker 02:
that.

[00:09:36] Speaker 02:
That's not a clear disclaimer.

[00:09:38] Speaker 02:
In cases like Thorner where every time they used the term attachment, they talked about attaching on the outside and they used embedded when they talked about attaching on the inside.

[00:09:49] Speaker 02:
The court said, that's not enough to read that limitation from the specification into the claim.

[00:09:55] Speaker 02:
I think we have less than that here, Your Honor.

[00:09:57] Speaker 02:
We have a permissive statement that says something can be molded separately.

[00:10:01] Speaker 02:
There are plastic parts

[00:10:02] Speaker 02:
One of skill in the art knows how to make these containers in one or two pieces.

[00:10:06] Speaker 02:
The crux of this invention relates to the sealing mechanism that's used to keep the contents moisture proof.

[00:10:13] Speaker 03:
That being the case, can you address a DOE issue?

[00:10:19] Speaker 02:
Sure, Your Honor.

[00:10:21] Speaker 02:
Basically, based on the district court's construction, the district court found that there was no disclosure of any one-piece container with an upper housing portion.

[00:10:31] Speaker 02:
So if that's the case, if this court agrees with that and finds that there was absolutely no disclosure of that, then we don't believe the disclosure dedication doctrine can apply because Pfizer and the other cases say that the patent needs to disclose that as an alternative to the claim element.

[00:10:49] Speaker 02:
So we agree that one piece containers are disclosed, but the district court's construction is premised on this whole idea that those one piece containers do not have

[00:10:58] Speaker 02:
upper housing portions and therefore cannot be an alternative to that.

[00:11:01] Speaker 01:
So what about this quote from Johnson and Johnston, the end bank opinion that says, when a patent drafter discloses but declines to claim subject matter, dot, dot, dot, this action dedicates that unclaimed subject matter to the public.

[00:11:20] Speaker 01:
I take your argument to be that

[00:11:25] Speaker 01:
this disclosure dedication doctrine is very, very limitation element specific, swapping some disclosed but unclaimed element for a claimed element, one for one.

[00:11:40] Speaker 01:
But what I just read from Johnson & Johnson seems to talk a little more broadly than that in terms of conceptually claimed subject matter versus unclaimed subject matter.

[00:11:51] Speaker 01:
And if that's the case, then

[00:11:53] Speaker 01:
What we have here is perhaps a claimed embodiment and then an unclaimed embodiment.

[00:11:59] Speaker 02:
I think in Johnson & Johnson, it was very clear that the claim element was aluminum.

[00:12:05] Speaker 02:
It was the substrate made of aluminum.

[00:12:07] Speaker 02:
And in that patent, it specifically disclosed alternatives to aluminum.

[00:12:11] Speaker 02:
So aluminum is preferred, but you can use these other metals for this substrate.

[00:12:15] Speaker 02:
And in that case, so there was a clear disclosure of an alternative to that claim element.

[00:12:20] Speaker 02:
And this court's later cases,

[00:12:23] Speaker 02:
made that clear that when we're looking at this disclosure dedication doctrine, you're supposed to look at that specific claim element and is there an alternative to that.

[00:12:32] Speaker 02:
So I think the later cases have made clear what Johnson and Johnston held.

[00:12:37] Speaker 02:
But we really think that those issues should never be reached because it's the claim construction issue and that the proper construction of upper housing portion should be given its plain and ordinary meaning and that this is not a case

[00:12:49] Speaker 02:
where a limitation from the specification should be read into the claim, I think that would be a dangerous precedent to set and would expand the law in that area.

[00:12:58] Speaker 03:
All right.

[00:12:58] Speaker 03:
Thank you very much.

[00:13:00] Speaker 03:
You went two minutes into your rebuttal, but I'll restore that.

[00:13:03] Speaker 03:
Thank you, Your Honor.

[00:13:06] Speaker 03:
Morning, Your Honor.

[00:13:07] Speaker 03:
Mr. Sullivan.

[00:13:09] Speaker 04:
May it please the Court, I think when one of ordinary skill in the art looks at the claim term here, upper housing portion, and reads that claim term in light,

[00:13:19] Speaker 04:
of the intrinsic evidence, and here especially the specification, I think it's clear that upper housing portion is a separate component from the base in a two-piece container.

[00:13:32] Speaker 04:
I agree with the court that if we were just looking at the claims in a vacuum, there'd be more credence, I think, to CSP's argument.

[00:13:42] Speaker 04:
But I think you have to look at these claims, especially this claim from upper housing portion,

[00:13:46] Speaker 04:
in light of that specification.

[00:13:48] Speaker 04:
The specification's clear.

[00:13:50] Speaker 04:
It says it repeatedly.

[00:13:51] Speaker 04:
In the abstract, in the summary of the invention, and in the detailed description, when you talk about an upper housing portion, they're using that term in a two-piece container where it's a separate piece from the base.

[00:14:04] Speaker 01:
But both in the summary and in the detailed description, isn't there a sentence there that says that the upper housing portion and the

[00:14:14] Speaker 01:
base can be molded separately.

[00:14:18] Speaker 01:
And so what are we supposed to make of that?

[00:14:22] Speaker 01:
When it says can be molded separately, that suggests it also can be molded a different way.

[00:14:32] Speaker 04:
Maybe together.

[00:14:33] Speaker 04:
Sure, referring to the permissive language argument that CSP makes.

[00:14:36] Speaker 04:
Yeah, it's a good point.

[00:14:37] Speaker 04:
So when you look at the specification,

[00:14:40] Speaker 04:
We've got to look at the first sentence.

[00:14:42] Speaker 04:
Let's just take the detailed description.

[00:14:43] Speaker 04:
I'll just read here from column four, lines four through nine.

[00:14:47] Speaker 04:
It says, in one environment, the containers can be formed as a single closed unit with the hinge joining the lid portion of the container portion.

[00:14:55] Speaker 04:
In yet another environment, the container assembly comprising the base and upper housing portion can be molded separately.

[00:15:02] Speaker 04:
So that's giving you two permissive alternatives there.

[00:15:05] Speaker 04:
You can do it as a one-piece container, no mention of upper housing,

[00:15:10] Speaker 04:
portion with respect to that one piece container, just a one piece container.

[00:15:15] Speaker 04:
Or you can have a two piece container where those two parts are molded separately.

[00:15:21] Speaker 04:
What the specification never says, and I think it distinguishes the cases cited by CSP on this argument, the specification never says that they can be molded jointly or that the upper housing and the base can be integrated.

[00:15:36] Speaker 04:
So we don't think the fact that it uses

[00:15:38] Speaker 04:
the words can be here in the specification, make it any less clear that when you're talking about an upper housing portion, you're referring to a two-piece container.

[00:15:54] Speaker 04:
CSP premises its argument that upper housing portion, the plan and order and meaning of that,

[00:16:01] Speaker 04:
is somehow a location or an area.

[00:16:04] Speaker 04:
I think what they're doing is really reading that word housing out of the claims.

[00:16:09] Speaker 04:
And that is a claim term.

[00:16:11] Speaker 04:
It says upper housing portion.

[00:16:13] Speaker 04:
It's a term that was added to this continuation in part.

[00:16:17] Speaker 04:
They added the language for upper housing portion to this patent.

[00:16:21] Speaker 04:
It has a clear intent on behalf of the patentee that when you're talking about upper housing portion here,

[00:16:28] Speaker 04:
You look at this patent, wonder born of skill and the art, walks away from the understanding that that's a two-piece container.

[00:16:34] Speaker 04:
And we think that's pretty clear.

[00:16:35] Speaker 04:
You can't get rid of the word housing in the claim term.

[00:16:42] Speaker 04:
I think the fact, too, that it was added to this continuation in part, it wasn't in the parent case, the 720 patent, which there they just said that the hinge of the lid, the lid was connected to a hinge and the hinge was connected to the container.

[00:16:57] Speaker 04:
I think their 778 patent, which is the child patent, the continuation, which is also up on appeal here for the court from the IPR.

[00:17:05] Speaker 04:
I think in that case, their claims, again, talk about the lid being disconnected to the container.

[00:17:11] Speaker 04:
They don't use the words upper housing portion.

[00:17:13] Speaker 01:
Are you saying the parent disclosure did not disclose a two-piece container assembly?

[00:17:20] Speaker 04:
No, it did.

[00:17:21] Speaker 04:
You're correct, Your Honor.

[00:17:22] Speaker 04:
It called it an upper compartment.

[00:17:24] Speaker 04:
It used a different term, but those terms are really interchangeable.

[00:17:27] Speaker 04:
The only real difference between upper compartment and upper housing portion is that the fact that when they added upper housing portion to the 137 patent, it had a snap fit connection to the base.

[00:17:41] Speaker 04:
The upper component that was in the original parent application, the 720 patent, that was joined by welding those two pieces.

[00:17:48] Speaker 04:
But they were both two pieces.

[00:17:49] Speaker 04:
And I think those embodiments are all consistent.

[00:17:52] Speaker 04:
If you're talking about upper component, upper housing portion, you're in a two-piece container environment.

[00:17:58] Speaker 04:
Those pieces, upper component and upper housing portion, are not part of a one-piece container.

[00:18:04] Speaker 04:
When you look at their figure 10, you look at the description of figure 10, that's a one-piece container.

[00:18:10] Speaker 04:
It does not mention upper compartment or upper housings being part of that embodiment.

[00:18:18] Speaker 04:
Just talking a little bit about

[00:18:22] Speaker 04:
the doctor equivalent.

[00:18:23] Speaker 04:
So to sum up that point, we think that the district court came up with the correct construction here.

[00:18:28] Speaker 04:
Viewed the claims on the upper housing portion in the context of the intrinsic evidence, especially the specification, and correctly construed that to be a two-piece container where the upper housing portion is a separate and distinct piece from the base.

[00:18:42] Speaker 04:
We also think the district court's grant of summary judgment was the right decision.

[00:18:50] Speaker 04:
As it's in the record, CSP has conceded there's no literal infringement here under the court's construction.

[00:18:56] Speaker 04:
The argument was under doctrine of equivalence.

[00:18:58] Speaker 04:
We think that the disclosure dedication rule and the vitiation doctrine apply here and preclude application of the doctrine of equivalence on the accused product, which is a one-piece container.

[00:19:12] Speaker 04:
Just to talk for a minute about the disclosure dedication rule, I think there it's pretty simple.

[00:19:19] Speaker 04:
When you have two alternative environments disclosed, you claim one.

[00:19:25] Speaker 04:
The unclaimed but disclosed environment can't be covered by the Doctrine of Equivalence.

[00:19:29] Speaker 01:
Has there ever been a case where this court has held that the disclosure dedication rule applied outside the context of just replacing a single element with a substitute element?

[00:19:48] Speaker 01:
You know, like Johnson & Johnson with that aluminum and then some other material case.

[00:19:53] Speaker 01:
And then there's another case where disclosure dedication was applied.

[00:19:59] Speaker 01:
But again, it was literally removing one word and inserting another word that was disclosed but not claimed.

[00:20:10] Speaker 01:
This fact pattern feels a little different than that.

[00:20:13] Speaker 04:
Well, you know, I don't think there's a specific case that comes after our exact

[00:20:18] Speaker 04:
situation here.

[00:20:21] Speaker 04:
I think we are, though, more aligned with the Johnson & Johnson case in that you haven't expressed this quote in the specification of alternatives.

[00:20:30] Speaker 04:
These are two alternative embodiments.

[00:20:32] Speaker 04:
I just read it to the court before in column four, lines four through nine.

[00:20:36] Speaker 04:
In one embodiment, you can have a single closed one-piece container.

[00:20:42] Speaker 04:
No mention of it being an upper housing there.

[00:20:44] Speaker 04:
And then in the very next sentence, it says,

[00:20:47] Speaker 04:
In yet another environment, you can have a two-piece container with an upper housing separate from a base.

[00:20:53] Speaker 04:
I think the analogy we pointed out in our brief that two shoes are alternatives, one being an Oxford with laces and one being a Loaf without.

[00:21:02] Speaker 04:
You don't have to have corresponding structure between those to have those be defined as alternatives.

[00:21:08] Speaker 04:
And they are expressly defined in this patent specification as alternatives.

[00:21:13] Speaker 04:
I don't think that

[00:21:14] Speaker 04:
the Pfizer case and the other case cited by CSP Stanford, a proposition that you have to use magic language or magic words such as alternative, or that you have to include everything in one sentence and have it be just a corresponding replacement in order for the disclosure dedication rule to apply.

[00:21:36] Speaker 04:
Here again, we're talking about two alternatives clearly disclosed in two adjacent sentences.

[00:21:44] Speaker 04:
They claimed the upper housing.

[00:21:46] Speaker 01:
I'm just trying to think if you were to, if you had been the patent drafter and you wanted to cover both embodiments, would you just delete the phrase and upper housing portion so that the limitation would have just said the lid is attached by hinge to the container?

[00:22:07] Speaker 04:
Exactly.

[00:22:07] Speaker 04:
Your honor.

[00:22:08] Speaker 04:
And that's what they did.

[00:22:08] Speaker 04:
And that's what was referring to.

[00:22:09] Speaker 04:
That's what they did in the seven two zero parent.

[00:22:12] Speaker 04:
And that's what they did in the 778 continuation.

[00:22:15] Speaker 04:
It's not unlike what's mentioned in the Johnson & Johnson case, where they actually say, look, you're not prejudiced here.

[00:22:21] Speaker 04:
You can go pick up that unclaimed but disclosed environment, that alternative environment.

[00:22:26] Speaker 04:
You can pick that up in a continuation.

[00:22:28] Speaker 04:
That's exactly what CSV did.

[00:22:29] Speaker 04:
They've asserted that continuation against us.

[00:22:32] Speaker 04:
I know that's for another matter, so I won't get into that case.

[00:22:34] Speaker 04:
But they actually did exactly that.

[00:22:37] Speaker 04:
They removed that limitation of upper housing portion.

[00:22:40] Speaker 04:
They also want to step further.

[00:22:42] Speaker 04:
And in a dependent claim, they specifically stated that it was a one-piece container.

[00:22:48] Speaker 04:
So they've covered in both of their claims, all their claims I should say in that patent.

[00:22:53] Speaker 04:
I think the officiation doctrine also applies here.

[00:22:56] Speaker 04:
I think we're talking about fundamental opposites.

[00:23:00] Speaker 04:
I think that to use the doctrine of equivalence to stretch this claim here, which covers a two-piece configuration,

[00:23:08] Speaker 04:
to also cover one piece configuration, I think those are fundamental opposites.

[00:23:13] Speaker 04:
And I think by using the DACA equivalence to do that, I think you wind up vitiating.

[00:23:18] Speaker 03:
Do we end up with essentially the same use and purpose?

[00:23:24] Speaker 03:
What difference does it make if there's a hinge there or not?

[00:23:27] Speaker 03:
The cap seals, whether it's separate from the container or not.

[00:23:31] Speaker 04:
Well, I don't think it has to do with the hinge, your honor.

[00:23:33] Speaker 04:
I think it has to do with whether or not the container, which is the

[00:23:37] Speaker 04:
the lower portion, there's a lid, and the lid's attached to the container by a hinge.

[00:23:43] Speaker 04:
I think we're talking about that container actually being one or two pieces.

[00:23:48] Speaker 04:
And we think those are fundamental opposites here, a multi-part container or an integral container that's just one piece.

[00:23:56] Speaker 04:
If the claims cover both through the doctrine of equivalence, there's absolutely no reason or would render this upper housing portion limitation meaningless.

[00:24:05] Speaker 01:
What if the accused product had

[00:24:07] Speaker 01:
was a three-piece container.

[00:24:09] Speaker 01:
Would you be standing here saying it's a vitiation to have a claim that's directed to a two-piece assembly?

[00:24:22] Speaker 04:
No, I don't think that adding extra pieces is going to help you on infringement.

[00:24:28] Speaker 04:
If you still have the upper housing and the base as separate pieces, I think you would still infringe the claim.

[00:24:34] Speaker 04:
Does that make sense?

[00:24:35] Speaker 04:
The fact that you add an additional piece is not going to get you out of infringement in that situation.

[00:24:41] Speaker 04:
So I think the claim requires at least two pieces.

[00:24:43] Speaker 04:
That's another way to phrase that.

[00:24:45] Speaker 04:
So it's in the multi-component world of containers.

[00:24:49] Speaker 04:
That's what the claim is talking about here.

[00:24:51] Speaker 01:
So then, because what you're asking for is essentially a rule of law that initiation applies here, are you saying that any time two claim elements are integrated into

[00:25:05] Speaker 01:
one element and accused product, you can never have doctrine of equivalence because you've vitiated the recitation and the claim of the otherwise integrated element being divided into two elements?

[00:25:21] Speaker 04:
Well, if the claim or the specification told you clearly that the coverage here is for a two-piece container, then yes, I would say a two-piece container can never be the same as a one-piece container in that situation.

[00:25:34] Speaker 04:
If it is, then the two-piece container scope of that claim would have absolutely no meaning at all.

[00:25:41] Speaker 04:
And I don't think that's appropriate.

[00:25:44] Speaker 04:
Now, if it wasn't clear from the scope of the claim that it had to be two pieces, then yeah, I guess an argument could be made that you could make the pieces separate or equivalent would be to make them together or an integrator.

[00:26:01] Speaker 04:
But I think here the case is a little different.

[00:26:03] Speaker 04:
I think the scope of the claims is consistent with the specification is that it has to be two pieces.

[00:26:15] Speaker 03:
Okay.

[00:26:16] Speaker 03:
Thank you, Your Honor.

[00:26:24] Speaker 02:
Thank you.

[00:26:25] Speaker 02:
A few quick points, Your Honors.

[00:26:28] Speaker 02:
Pappelli raised this issue of can be and that the specification uses the term it can be molded separately.

[00:26:36] Speaker 02:
That is just not an expression of an intent to limit that term.

[00:26:41] Speaker 02:
You're giving that it can be molded separately or it can be molded together.

[00:26:44] Speaker 02:
You're talking about one-piece containers and two-piece containers.

[00:26:47] Speaker 02:
I just don't think that's a clear expression to disavow or disclaim those embodiments.

[00:26:54] Speaker 02:
Appellee also raised the term housing that it has to be given meaning.

[00:26:58] Speaker 02:
We agree with that.

[00:26:58] Speaker 02:
It should be given its plain and ordinary meaning, but nothing about term housing requires that it be separate.

[00:27:04] Speaker 02:
So there's nothing about the meaning of that term housing that require it be a separate element.

[00:27:09] Speaker 02:
And finally, we talked a little bit about, you know, what could the claim drafter done?

[00:27:14] Speaker 02:
Well, the claim drafter could have written in that we want a two-piece container or we want a separate upper housing.

[00:27:20] Speaker 02:
They didn't do that.

[00:27:21] Speaker 02:
To the extent the prosecution history is relevant, it shows that they amended the claims in the 137 patent to remove other language to make it clear that it would cover one-piece containers.

[00:27:33] Speaker 02:
During prosecution, the applicant removed the language top container surface and this claim one that we're dealing with now and pointed to figure 10, which is a one-piece container, as support for that claim.

[00:27:46] Speaker 02:
And during claim construction, that was another issue that was before the court.

[00:27:50] Speaker 02:
And Clarion argued this top container surface language makes it clear that these claims only cover two-piece containers.

[00:27:57] Speaker 02:
And the district court disagreed with that and said, no, they removed that language.

[00:28:01] Speaker 02:
They pointed to a one-piece container.

[00:28:03] Speaker 02:
So I think to the extent the prosecution history is relevant, it shows that the applicant intended to cover one-piece containers and that this language should not be construed to exclude those embodiments.

[00:28:17] Speaker 02:
That's all I have, Your Honor.

[00:28:18] Speaker 02:
Thank you very much.

[00:28:19] Speaker 02:
Thank you.