[00:00:21] Speaker 01:
The next case is Feneff versus SmartThings, 2014-14-90.

[00:00:29] Speaker 01:
Mr. Hu, when you're ready.

[00:00:32] Speaker 00:
Good morning.

[00:00:33] Speaker 00:
May I please report?

[00:00:35] Speaker 00:
The patent suit is a simple device that relates to a toe exercising or stretching device.

[00:00:41] Speaker 00:
The issue in this case, really the single issue of plane construction, involves the characterization of the structure of the device between the toes.

[00:00:50] Speaker 00:
The first 34 claims of the patent, which are not asserted, define that structure as post-form of an elastic material.

[00:01:00] Speaker 00:
And that's consistent with what the patent says in one passage, for example, in the Summary of Invention.

[00:01:07] Speaker 00:
The patent says, the present invention relates to an exercise tool, and more particularly to an exercise tool devised as a foot therapy device to align, separate, and stretch toes.

[00:01:16] Speaker 00:
And then it says, in one aspect, meaning in disembodiment,

[00:01:20] Speaker 00:
The devices comprise a frame that includes a top portion and a bottom portion.

[00:01:25] Speaker 00:
A plurality of posts, and it says only posts, not separators, that are formed of an elastic EG-elastic material, et cetera.

[00:01:34] Speaker 00:
And then a few lines down, it says the posts have a length, a diameter, and a circumference, and further possess elastic

[00:01:42] Speaker 00:
e.g.

[00:01:42] Speaker 00:
elastomeric property.

[00:01:44] Speaker 01:
But we're dealing with Claim 35, right?

[00:01:46] Speaker 00:
Yes, Your Honor, but the district court construed the term separator, which only appears in Claim 35, exactly the same way the term post-formative and elastic material appeared in First 34 claims.

[00:02:02] Speaker 04:
Let me take you to the patent.

[00:02:06] Speaker 04:
With respect to column one of the patent,

[00:02:10] Speaker 04:
where there is a discussion of the prior art, and the patent refers to the Funatagawa, is that how you pronounce it?

[00:02:23] Speaker 04:
I'm sorry?

[00:02:24] Speaker 04:
The Funatagawa, the 263.

[00:02:27] Speaker 00:
I can't help you much with that.

[00:02:29] Speaker 04:
Prior art, okay, it refers to the prior art, and then it says, this goes as a toe order consisting of a frame with five holes, each separated by a toe post.

[00:02:38] Speaker 04:
And then when you go back to the 263,

[00:02:41] Speaker 04:
that patent actually looked very much like the figures that are used to describe claim 35.

[00:02:54] Speaker 04:
In other words, there don't seem to be individual posts.

[00:02:58] Speaker 04:
There seemed to be what the district court or claim 35 characterized as separators.

[00:03:03] Speaker 04:
And yet, when describing the prior art, the patent

[00:03:09] Speaker 04:
says that those spaces between the holes are posts.

[00:03:15] Speaker 00:
Yes, but in the claim, in claim 35, it uses the term separator, not post.

[00:03:21] Speaker 00:
And our position here is that the district court essentially said for purposes of claim 35, separators is a particular category of separators, that is, posts formed of an elastic material.

[00:03:36] Speaker 00:
So the definition of

[00:03:38] Speaker 04:
Well, for claim 35, they said that the separators were, what essentially the district court appears to have been saying is that the separators are actually posts, but they're posts that are attached to top and bottom as opposed to the earlier diagrams.

[00:03:57] Speaker 00:
Let me jump right to my punch line.

[00:03:59] Speaker 00:
I was going to try to build to it, but the fact is the district court said separators in claim 35 are posts formed of elastic material.

[00:04:06] Speaker 00:
exactly like the first 34 claims.

[00:04:09] Speaker 00:
And the judge gave two reasons for that.

[00:04:12] Speaker 00:
One, he said the claims of the patent always equates posts and separators.

[00:04:19] Speaker 00:
And then the second reason is the invention of this patent, the only invention of the patent, is elastic posts.

[00:04:27] Speaker 00:
But that isn't correct.

[00:04:29] Speaker 00:
The fact is there is another embodiment.

[00:04:31] Speaker 00:
When I read this first passage, that was talking about the post embodiment.

[00:04:35] Speaker 00:
Figure 15,

[00:04:36] Speaker 00:
which I think is the figure Your Honor is referring to, specifically shows a one-piece device that doesn't have posts in the sense that it's not round.

[00:04:45] Speaker 00:
And the specification makes clear it doesn't have to be a lattice.

[00:04:48] Speaker 04:
But I guess my question is, the reference in column one to the 263, where they refer to the section between the holes as posts, if you look back to the 263, it looks very much like figure 15.

[00:05:03] Speaker 04:
That's true.

[00:05:05] Speaker 04:
OK.

[00:05:05] Speaker 04:
they were equating that, when you say they were equating posts to separators, they were calling that section between the posts, were they not?

[00:05:16] Speaker 04:
For purposes of describing the program.

[00:05:17] Speaker 00:
Yes, but for purposes of the claim it's different.

[00:05:21] Speaker 00:
The issue here is, is separator in claim 35 the same as a post in the other 34 claims?

[00:05:32] Speaker 00:
And the answer is no.

[00:05:33] Speaker 01:
Your point is that

[00:05:35] Speaker 01:
The issue here isn't what Funatagawa discloses.

[00:05:40] Speaker 01:
That's prior art.

[00:05:41] Speaker 01:
That's right.

[00:05:41] Speaker 01:
It's what this patent discloses, and it discloses both posts and separators, and the separators are not elastomeric.

[00:05:51] Speaker 00:
Yes.

[00:05:51] Speaker 00:
If you look at the language in the specification that describes Figure 15, it first says, another aspect of a foot therapy and toe lining device according to the present invention.

[00:06:04] Speaker 00:
So that means a different embodiment

[00:06:05] Speaker 00:
is shown in figure 15.

[00:06:09] Speaker 00:
The foot therapy and toe aligning device comprises a frame 1502 with a separator 1503.

[00:06:14] Speaker 00:
This shows that separator and post are never used together, which is what the district court erroneously said.

[00:06:20] Speaker 00:
Also, there is a separate embodiment of the invention that is a separator that is different than a toe post.

[00:06:26] Speaker 00:
Then it goes on to say, the frame 1502 may be constructed of any suitable material

[00:06:32] Speaker 00:
Non-limiting examples of which include plastic, silicone, and cork.

[00:06:36] Speaker 00:
Those include both elastic and non-elastic materials.

[00:06:39] Speaker 00:
Nowhere in this passage, and if you keep reading that, does it say the separator has to be elastic.

[00:06:46] Speaker 00:
There's another passage in column three, and that's at 863, at column five, lines five through 20, where it describes the separator.

[00:06:56] Speaker 00:
Also, and it never says there that the separator has to be elastic.

[00:07:01] Speaker 00:
So the district court's basis for finding that separators were a special category of separators, that is, posts made of an elastic material.

[00:07:11] Speaker 04:
How does what the separator does in this Claim 35 differ from the posts in the context of this pad?

[00:07:21] Speaker 00:
It does some of the same things, but not in the same way.

[00:07:24] Speaker 00:
The separator of Claim 35 in Figure 15

[00:07:30] Speaker 00:
doesn't have to be elastic.

[00:07:31] Speaker 00:
So you don't have to be able to pull the post to be able to slide the toes and then pop it back down for one thing.

[00:07:36] Speaker 00:
It can simply rely on the fact that there is a gap that will force the toes apart.

[00:07:42] Speaker 00:
And that alone provides some therapeutic benefit.

[00:07:45] Speaker 04:
But you can see that everything in the written description up until that description of figure 15 and its follow-on figures

[00:07:54] Speaker 04:
talks about solving the problem of having materials that are insufficiently elastic to allow for them to form between the toes.

[00:08:05] Speaker 00:
Yes, but the embodiment of Figure 15 and the language in Column 13 and all that I read clearly indicates there's a separate embodiment that doesn't rely on

[00:08:18] Speaker 04:
So I take it that you would concede that most of the general principles that your friend on the other side would argue or that the district court relied on about talking about what was weak in the prior art, what the present invention is, that all of those in the absence of what your key language would lend itself to the district court's construction until you get to that very express language.

[00:08:46] Speaker 04:
as it relates to Figure 15.

[00:08:48] Speaker 00:
There is a second embodiment to which the earlier language doesn't apply because that earlier language in the specification was directed at the elastic post-embodied.

[00:08:57] Speaker 03:
I think Judge O'Malley's point is supposed that discussion in Column 13 and Figure 15 didn't exist in this patent.

[00:09:05] Speaker 03:
We have a really hard case then for suggesting that separators don't have to be elastic.

[00:09:11] Speaker 03:
If this embodiment didn't exist, you know the patent in a couple of other places talks about separators and it doesn't in those places distinguish them from posts.

[00:09:20] Speaker 03:
Your point is this case is different because it says the frame which includes the separator quite clearly can be made of and it lists three materials some of which are clearly not elastic.

[00:09:30] Speaker 03:
Right, and it says without limitation as well.

[00:09:32] Speaker 03:
You don't have to make a hard argument, which is if this didn't exist, we should nonetheless have some sort of distinction because you're saying the patent expressly distinguishes on its face.

[00:09:42] Speaker 00:
I agree with that.

[00:09:43] Speaker 00:
I think without the language in column 13 and on describing the embodiment of figure 15, it would be a different case.

[00:09:51] Speaker 00:
And that's not the case.

[00:09:54] Speaker 01:
Claim 35 would probably not be there.

[00:09:57] Speaker 00:
Probably not, because claim 35 was probably in there specifically to cover that additional embodiment found in figure 15.

[00:10:05] Speaker 00:
So the bottom line of all of this is that this records two bases for the claim construction that equated toe posts made out of an elastic material, formed of an elastic material, and separator.

[00:10:17] Speaker 00:
is the two grounds that their toe posts and posts may form an elastic material and separator are always equated, which is never equated in the patent, and that the only invention in the patent is the elastic

[00:10:30] Speaker 00:
post.

[00:10:30] Speaker 00:
And that's not true because there's a second embodiment which the patent makes clear is a different embodiment.

[00:10:36] Speaker 04:
There's two earlier patents that the patent holder had as to which there were terminal disclaimers in connection with this claim, claim 35, right?

[00:10:47] Speaker 00:
I did, but I don't recall that specific point, Your Honor.

[00:10:53] Speaker 04:
So there were terminal disclaimers as to the two earlier patents, both of which contain identical figures to the figure 15 and figure 17 of the patented suit.

[00:11:10] Speaker 04:
What is the point of having a new claim in a new patent that, again, has a different written description and then giving a terminal disclaimer if there wasn't something different between the new patent and the old patent?

[00:11:29] Speaker 00:
I can't explain why, the whys and where's of the prosecution history.

[00:11:34] Speaker 00:
The issue here is that there is one claim here, claim 35, that stands out.

[00:11:41] Speaker 00:
It's clearly directed at the embodiment of figure 15 and the language in column 13 and following.

[00:11:48] Speaker 00:
The issue is the claim construction of that claim 35 term separator, which I think is intended to cover that embodiment, however it ended up here.

[00:11:55] Speaker 00:
I can't explain why it's here in this pattern.

[00:11:58] Speaker 00:
This is a patent in a series of three.

[00:12:01] Speaker 01:
You wanted to save some rebuttal time into it.

[00:12:05] Speaker 01:
We'll hold it for you.

[00:12:06] Speaker 01:
Thank you.

[00:12:10] Speaker 01:
Mr. Hoffman.

[00:12:16] Speaker 02:
Thank you, Your Honor.

[00:12:17] Speaker 02:
May it please the court.

[00:12:19] Speaker 02:
The one thing that is clear from the written description is that the elements that go between the toes have to be elastic, have to be elongatable, and must be able to then contract and to engage the user's toes in order to perform the therapeutic... Isn't it clear that it is the posts that must be elastic?

[00:12:39] Speaker 02:
The written description talks about that in connection with Pulse, but then it also talks about, in connection with another embodiment, it uses the term separator, but it says throughout that the present invention requires all of these features of that element that goes between your toes.

[00:12:57] Speaker 02:
And it would be an anomalous result to say that the present invention requires it.

[00:13:02] Speaker 02:
And then the description of claim 15, or I'm sorry, figure 15, the figure 15 embodiment talks about it being the present invention to say it doesn't have the very necessary elastic elements that are required by the sophistication.

[00:13:16] Speaker 04:
I give you that most of your basic principles about how we would interpret this would seem to go

[00:13:25] Speaker 04:
in favor of the construction adopted by the district court until you get to column 13.

[00:13:31] Speaker 04:
And here's the problem, is that yes it says, according to the present invention, which does seem to be an elastic material invention, but then you describe the foot therapy and toe lining device comprises a frame and a separator.

[00:13:51] Speaker 04:
So the separator 1503, which is exactly the piece between the holes, and then you describe the kind of material that that entirety of that thing can be made of, and it doesn't say it has to be elastic.

[00:14:05] Speaker 02:
How do you get around that?

[00:14:07] Speaker 02:
Well, the passage that you wrote says it is a frame with a separator.

[00:14:12] Speaker 02:
So it distinguishes between a frame and a separator.

[00:14:15] Speaker 04:
No, the frame 1500 is the entirety of the

[00:14:21] Speaker 04:
what's shown in the diagram.

[00:14:24] Speaker 04:
And then the separator is within the frame.

[00:14:26] Speaker 04:
That's how your own diagram shows it.

[00:14:32] Speaker 04:
The frame is 1502 and the separator is 1503.

[00:14:36] Speaker 04:
And 1502 encompasses 1503.

[00:14:40] Speaker 02:
So I'm just going to quickly look at figure 15.

[00:14:45] Speaker 02:
I believe that, Your Honor, in accordance with reading this investigation, the frame hits the top and the bottom, and the separator extends between the top and the bottom.

[00:14:53] Speaker 04:
Well, look at Figure 15.

[00:14:55] Speaker 04:
See where it says 1502 with the brackets that say the whole thing?

[00:14:59] Speaker 02:
I see where there is the bracket.

[00:15:01] Speaker 02:
Yes, Your Honor.

[00:15:03] Speaker 03:
And moreover, isn't the frame defined not as a top and bottom, like you said?

[00:15:08] Speaker 03:
The frame 1502 has a top portion 1504, a bottom portion 1506, a front portion 1508, and a back portion 1510.

[00:15:19] Speaker 03:
So you agree that 1508 and 1510, the front and back portions, are likewise part of the frame, correct?

[00:15:27] Speaker 03:
Yes.

[00:15:27] Speaker 03:
Okay, so look at the diagram.

[00:15:29] Speaker 02:
1508 points to what?

[00:15:32] Speaker 02:
It's part of the bottom of the frame portion in the front.

[00:15:35] Speaker 02:
It's directly under a separator, but it's right on the frame.

[00:15:38] Speaker 03:
It looks to me like it's pointing to part of the separator.

[00:15:41] Speaker 03:
Actually, if you draw a line across, if you draw a parallel line with a ruler across, the line actually goes above where the holes begin on the bottom.

[00:15:49] Speaker 03:
And I thought everything in between the holes is part of the separator.

[00:15:54] Speaker 02:
I'm going to respectfully say that I believe that the frame does have those components just like it's described in connection with the earlier embodiment of having those same components.

[00:16:05] Speaker 02:
One of the other passages that I think helps support that the frame can be one material and that which goes between the toes can be another material.

[00:16:12] Speaker 03:
How could this even be a different material?

[00:16:13] Speaker 03:
Look at it.

[00:16:14] Speaker 03:
It's a single unitary construction.

[00:16:17] Speaker 03:
This picture doesn't have dotted lines or dashed lines or any sort of lines that

[00:16:24] Speaker 03:
illustrate separators as distinct from frames?

[00:16:28] Speaker 02:
I would agree that the drawing has a look.

[00:16:35] Speaker 02:
I'm not sure that all of the elements of how it's constructed have to be laid in the drawing in terms of what the materials are.

[00:16:42] Speaker 02:
They're described in the written description later on.

[00:16:45] Speaker 02:
If we go back to, for example, looking at column A65, column 9, there's a portion of the description with respect to the earlier embodiment that says it should be noted that the description above with respect to the elastic material of the toe pose

[00:17:05] Speaker 02:
is also applicable to the frame.

[00:17:07] Speaker 02:
For example, the frame can also be formed in the last material.

[00:17:10] Speaker 02:
So there's a clear indication that even in the earlier embodiment, the frame can be one material and the post can be another material.

[00:17:17] Speaker 01:
Is there anything specifically stated in this specification that a separator is the last American?

[00:17:27] Speaker 02:
In column 14 at A67, the written description talks about the foot therapy and toe lining device having to be easily distorted and manipulated to allow easy insertion as well as articulation and accommodation of the toes.

[00:17:42] Speaker 02:
that marries the description of the sufferer to the post and the fact that you have to be able to have those properties of manipulation.

[00:17:51] Speaker 04:
But isn't it the holes, the openness of portions of the holes that this description says provides that?

[00:18:02] Speaker 02:
That's one of the features, but it still has to have the ability to be manipulated.

[00:18:07] Speaker 02:
The operable toe holes help facilitate the manipulation, but you still have to have the ability to manipulate the toe holes, and that is conducted in accordance with the rest of the specification, what the President mentioned teaches.

[00:18:24] Speaker 02:
that the material has to be elongatable, has to be elastic, and has to be able to conform to the shape of the user's toe upon release.

[00:18:32] Speaker 03:
I may be repeating what Sister Malley just said, but are you suggesting the fact that it says, may be easily distorted and manipulated, is what points us to the elastomate?

[00:18:45] Speaker 03:
A passage that says it has to have those features.

[00:18:49] Speaker 03:
No, but the predicate of that sentence says,

[00:18:51] Speaker 03:
because the open toe hole is not sealed, the foot therapy device may be easily distorted.

[00:18:59] Speaker 03:
So it isn't saying because it's elastomeric, it actually is saying that it's because it's not sealed, it's open, and that's why it would be manipulatable.

[00:19:10] Speaker 02:
The openness of it helps the ability to elongate the posts to manipulate the device.

[00:19:18] Speaker 02:
If the rest of it were rigid and the holes were just open on the end, it wouldn't have the ability to be manipulated.

[00:19:24] Speaker 02:
It would still be a rigid device.

[00:19:25] Speaker 02:
So that ties into the fact that it has to be elastic in order to be manipulated with the open toe holes.

[00:19:32] Speaker 02:
The reference that was referred to earlier, the Tsuen-Tsugawa reference, was a reference that had, for lack of a better term, closed toe holes on the ends.

[00:19:42] Speaker 02:
And this invention defines over that by allowing everything that was said with respect to funentagawa that it can be elongated like that.

[00:19:50] Speaker 02:
Funentagawa was deficient in the sense that it was not elongatable and did not provide the necessary characteristics for the therapeutic benefits as described in the pen is equally applicable here.

[00:20:02] Speaker 04:
So how did you explain to me this prosecution history?

[00:20:04] Speaker 04:
Because you have two prior patents that use the exact same diagram.

[00:20:09] Speaker 04:
So figures 1 and 2 of your earlier patents, in each of the earlier patents, the 915 and the 939, they both use the identical diagrams as figures 1 and 2 that show up here as figures 15 and 16.

[00:20:28] Speaker 04:
And in the written description, they have the identical language describing what materials those

[00:20:39] Speaker 04:
those things can be made from that show up in those diagrams.

[00:20:43] Speaker 04:
So the claim is slightly different, 35, than the claims in the earlier, but not much.

[00:20:50] Speaker 04:
So how do we end up with this claim all of a sudden appearing at the end of the prosecution history in this patent?

[00:20:58] Speaker 02:
I can't explain the prosecution.

[00:20:59] Speaker 02:
I wasn't involved with why this one was here.

[00:21:03] Speaker 02:
What I looked at was what does this one mean now in light of the current specification of which it's a part of?

[00:21:09] Speaker 02:
And what it teaches to somebody's skill in the arts is that the particular embodiment that's here that's described and that's claimed has to have all of those properties that we talked about about it being elastic.

[00:21:20] Speaker 02:
And I will say, I didn't prosecute the earlier cases.

[00:21:26] Speaker 02:
And I'm not aware.

[00:21:28] Speaker 02:
When I saw prosecution history, this claim was added into the file.

[00:21:35] Speaker 02:
And it got allowed, I think, without amendment, when it was put into the file.

[00:21:40] Speaker 02:
And I think you have to interpret this claim in light of the specification of this patent, of which it's a part.

[00:21:45] Speaker 03:
But isn't it true that the prosecution history claimed 35 issues.

[00:21:50] Speaker 03:
It was actually application claim 41.

[00:21:56] Speaker 03:
Originally, when you filed the application, this exact claim, every single one of its words, was application claim 41.

[00:22:02] Speaker 03:
And there was an application claim 42, which interestingly wasn't carried forward into the actual issue patent.

[00:22:11] Speaker 03:
I don't know why, because it wasn't rejected for a reason that was obvious to me.

[00:22:15] Speaker 03:
But for whatever reason, it wasn't carried forward.

[00:22:18] Speaker 03:
And claim 42, as originally filed, was solely limited to the following statement.

[00:22:25] Speaker 03:
The separators are of elastic material.

[00:22:33] Speaker 03:
Obviously, you anticipated the possibility that the separators could be of an elastic material because your original prosecution, as originally filed, had a dependent claim attached to this identical claim that allowed for that possibility.

[00:22:46] Speaker 03:
But under principles of claim differentiation, why does that mean the broader claim, this one, doesn't limit itself to elastomeric materials?

[00:22:58] Speaker 02:
First, I mean, in terms of this case, the claim is not there.

[00:23:02] Speaker 02:
So there's no doctor of claim differentiation, I think, invoked, because it doesn't appear in the final result.

[00:23:09] Speaker 03:
You're right.

[00:23:09] Speaker 03:
There's absolutely a difference there, absolutely.

[00:23:11] Speaker 03:
But clearly, during prosecution, as originally filed, you contemplated that this claim didn't limit itself to elastic material, because the defendant claim had only one limitation, and it was elastic.

[00:23:24] Speaker 02:
Your Honor, what I could say is maybe

[00:23:26] Speaker 02:
Again, I wasn't the person who prosecuted, so a reasonable interpretation of that could be because they read the specification, saw it included as separate as required elastic, and didn't need it any further as a part of the requirement.

[00:23:42] Speaker 02:
I think in the end of the day, we have to look at what does the specification teach?

[00:23:45] Speaker 02:
The case law from the court is very, very specific.

[00:23:48] Speaker 02:
What does the case law teach that is the invention here?

[00:23:53] Speaker 02:
is the claim to be construed in accordance with the teachings of the specification to achieve that which the inventor invented.

[00:24:02] Speaker 02:
I believe that what the district court did was proper in determining that the separators were required to be elastic and have the very properties that differentiated this invention from those in the prior art.

[00:24:15] Speaker 02:
In the case law from this court about the disclaimer language I believe is applicable here because there was a description of what was deficient in the prior art and that's specifically how these claims overcome those particular deficiencies.

[00:24:31] Speaker 02:
Would the court like to hear about the other issue that's in the case?

[00:24:36] Speaker 01:
You have two and a half minutes to use as you should.

[00:24:40] Speaker 02:
All right, thank you.

[00:24:41] Speaker 02:
With respect to the injunctive relief that was granted by the court, the complaint by the appellant is that the district court didn't identify a causal nexus

[00:24:53] Speaker 02:
between the harm and the absence of the causal nexus thus was fatal to the grant of the injunction.

[00:25:03] Speaker 02:
And I submit that the district court didn't use the word causal nexus, but nonetheless found that a causal nexus existed.

[00:25:11] Speaker 02:
Because the cases we might have found by the appellant, the Apple trilogy, the Apple trilogy talk about a series of cases where the feature drives

[00:25:20] Speaker 02:
the sale of the accused product.

[00:25:23] Speaker 02:
In this case, the accused product is the entire patented device.

[00:25:26] Speaker 02:
In other words, it's not a single element of the patent that forms the accused device.

[00:25:31] Speaker 02:
It's the whole claim that forms the basis for the accused device.

[00:25:35] Speaker 02:
The causal nexus is apparent because it is that which is patented that is being sold.

[00:25:40] Speaker 02:
But furthermore, there are other harms here that are only directly resulting from the infringement.

[00:25:47] Speaker 02:
And those harms that are only directly resulting from the infringement include the fact that we have now a loss of market exclusivity.

[00:25:55] Speaker 02:
That's only because by way of the infringement, so therefore that harm has to be related to the infringement.

[00:26:01] Speaker 02:
The fact that they can't

[00:26:02] Speaker 02:
It was apparent that they couldn't satisfy a judgment is also another basis for the granting of the injunctive relief here.

[00:26:12] Speaker 02:
Those elements are not even challenged by the appellant on appeal.

[00:26:15] Speaker 02:
The only thing that they said is the court didn't use the term causal nexus, so therefore there's a fatal deficiency in the grant of the injunction.

[00:26:23] Speaker 02:
We believe that that's just not proper in view of the facts that have been admitted, not contested.

[00:26:30] Speaker 02:
And the district court properly found and did not abuse its discretion in granting the injunctive relief.

[00:26:38] Speaker 01:
Thank you, Mr. Hoffman.

[00:26:39] Speaker 01:
Mr. Hu has a few minutes to adopt if he needs it.

[00:26:43] Speaker 00:
I will try to use just part of that.

[00:26:44] Speaker 00:
I will just summarize our basic position on this.

[00:26:50] Speaker 00:
There are two embodiments in the patent.

[00:26:52] Speaker 00:
Separators are never equated with posts.

[00:26:55] Speaker 00:
There is no description that requires an elastic separator.

[00:26:59] Speaker 00:
One of the references that Council for Fenton F referred to that said the frame could be elastic is in the context of elastic posts.

[00:27:10] Speaker 00:
It's not a separator embodiment.

[00:27:12] Speaker 00:
The only disclosure of a separator in the patent in the two places that I cited, column 3, I believe, and column 15 or 13, show that the separator does not have to be elastic, that it's a more generic term.

[00:27:30] Speaker 00:
And finally, the gist of their argument seems to be that the, quote, essence of the invention of one embodiment takes priority over explicit written description of another embodiment of the invention that's claimed in Claim 35.

[00:27:44] Speaker 00:
Thank you.

[00:27:45] Speaker 01:
Thank you, Mr. Hu.

[00:27:47] Speaker 01:
It's clear that both of you were on your toes concerning this case.

[00:27:52] Speaker 01:
We'll take it under advisement.