[00:00:00] Speaker 03:
This is 14-1214, Flexitique Americas versus Flexique.

[00:00:38] Speaker 03:
Mr. Smiley, whenever you're ready.

[00:00:50] Speaker 01:
May it please the court?

[00:00:55] Speaker 01:
My name is Scott Smiley.

[00:00:56] Speaker 01:
I represent Flexitique Americas and Flexitique International.

[00:00:59] Speaker 01:
With me at the council table is Mark Johnson.

[00:01:03] Speaker 01:
I'm happy to find you today in a patent state of mind.

[00:01:07] Speaker 01:
another patent case.

[00:01:09] Speaker 01:
As this court well knows, the process of determining patent infringement is a two-step process.

[00:01:17] Speaker 02:
Mr. Smiley, on page 29 of your opening brief, you say it's undisputed that the appellee provided the district court with samples of the accused devices before claim construction, but in the record, it's 4237

[00:01:32] Speaker 02:
The district court says, we're not talking about the defendant's product.

[00:01:36] Speaker 02:
This is repeated several places.

[00:01:38] Speaker 02:
We're just talking about what your product is.

[00:01:40] Speaker 02:
Remember, you were the one who was very adamant that we not refer to the defendant's product.

[00:01:46] Speaker 02:
Other places, the court says, I'm not doing this looking at the defendant's product.

[00:01:51] Speaker 02:
Where in the record is there evidence that the district court considered defendant's product samples before considering the claim?

[00:01:59] Speaker 01:
Your Honor, the defendant submitted with a markman brief, photos of their products.

[00:02:05] Speaker 01:
In the record, on the transcript, the judge said she read both of our briefs and she ultimately decided to strike them after reading them.

[00:02:13] Speaker 01:
But she did read them and that's on the record, so there's no question there.

[00:02:17] Speaker 02:
She also struck them.

[00:02:18] Speaker 01:
Yes.

[00:02:20] Speaker 02:
Which meant she wasn't going to consider them.

[00:02:22] Speaker 01:
Your honor, I think the piece of evidence that is most glaring to show that it was in her mind, and she saw them, she can't unsee them, is when she, it was actually me that handed her- When a court says they're not considering something, you're saying they are anyway.

[00:02:35] Speaker 01:
I think it's difficult for a human not to recall what you've seen.

[00:02:39] Speaker 01:
When I personally handed her our product, and shortly thereafter, without her looking at the record, she said to the defense counsel, how did you lose this case?

[00:02:51] Speaker 01:
All she had seen is our product.

[00:02:53] Speaker 01:
And she's referring to when we won the jury verdict the first time.

[00:02:57] Speaker 01:
I think it's clear that that shows she made a conclusion, looking just at our product in her hand and noticing that we have very exaggerated slots.

[00:03:05] Speaker 03:
We've skipped over.

[00:03:06] Speaker 03:
I think Judge Walke was asking about the defendant's product.

[00:03:09] Speaker 03:
And now you're talking about your product.

[00:03:11] Speaker 01:
Well, I'm trying to show the evidence that she knew what their products looked like.

[00:03:15] Speaker 01:
Because when she saw ours, she said to them, how did you lose this case?

[00:03:19] Speaker 01:
The only way she could conclude

[00:03:21] Speaker 01:
that there was a surprise is by knowing there's a difference in what she was seeing and what their product looks like.

[00:03:27] Speaker 01:
And there is a drastic difference.

[00:03:29] Speaker 01:
The product we happened to be producing at the time of the trial had exaggerated slots, big grooves, and theirs did not have those grooves that were so evident.

[00:03:39] Speaker 01:
So if she hadn't have seen their product and know what it meant, I don't know why she would explain that sentence.

[00:03:47] Speaker 04:
What is it the rule that you want us to adopt with respect to viewing or being aware of the accused products?

[00:03:57] Speaker 01:
Your Honor, I understand that it is attractive for a judge to want to know before deciding the claim terms to know what the product looks like so they know why maybe one word is more important than another word.

[00:04:09] Speaker 01:
But it seems that it

[00:04:12] Speaker 01:
it moves away from what we rely on to determine claim terms.

[00:04:16] Speaker 04:
Well, as long as the judge understands what the rules are, then the judge is not to deem the claims in light of either the commercial embodiment or the accused.

[00:04:30] Speaker 04:
But it does seem to me that it is useful for a court, as you say, to look at the practice, just to have a sense of what the ballgame is about here, what matters, what doesn't matter,

[00:04:42] Speaker 04:
What are the claim construction issues that the court really needs to bear down hard on?

[00:04:49] Speaker 04:
And why is that?

[00:04:51] Speaker 04:
Are you arguing that that's impermissible?

[00:04:55] Speaker 01:
We're arguing certainly that it's impermissible to look at a commercial product of a patent holder.

[00:05:00] Speaker 01:
The product had nothing to do with the negotiation between the patentee and the patent office.

[00:05:07] Speaker 01:
The product, many times, comes years after the patent is issued.

[00:05:10] Speaker 01:
It might not represent the breadth of the patent claims as in our case.

[00:05:15] Speaker 01:
And it doesn't help us to see what was meant by the negotiators in achieving that patent issuance.

[00:05:24] Speaker 01:
So we do think strongly that the commercial embodiment should never be looked at until after claim construction is complete.

[00:05:30] Speaker 01:
The defendant's product, I know the case law, there's been cases that have talked about this, they allow the court to look at that.

[00:05:38] Speaker 01:
It doesn't seem though to fall into the methodology of determining what the claims mean.

[00:05:44] Speaker 01:
You should look at the claim language, the specification, the prosecution history, and then extrinsic evidence that might shed guidance on what the parties meant when they were arguing over those specific terms.

[00:05:56] Speaker 01:
The defendant's product doesn't fit in there, but I understand as a judge, you would want to look at that product to see why are these parties so viciously arguing over

[00:06:06] Speaker 03:
So what's your answer to Judge Bryson?

[00:06:08] Speaker 03:
Yes, it's okay for the accused, the defendant's products, but not for the commercial embodiment?

[00:06:14] Speaker 01:
I would say both, that the court should not look at the defendant's product either.

[00:06:16] Speaker 04:
Is it reversible error if the court looks at even that?

[00:06:19] Speaker 04:
Notwithstanding that the court does not then say, oh, and I'm going to construe the court in light of the accused product, or whatever.

[00:06:27] Speaker 01:
I would think it would be a better rule that the court not look at any product.

[00:06:30] Speaker 04:
Or is it reversible error?

[00:06:33] Speaker 01:
Reversible error for the defendant's products?

[00:06:35] Speaker 01:
No, Your Honor.

[00:06:37] Speaker 01:
Reversible error for our client's commercial products?

[00:06:42] Speaker 01:
Yes.

[00:06:43] Speaker 01:
Because it's akin to learning that a defendant has insurance in it.

[00:06:48] Speaker 02:
You're engaging in rank speculation when you say that the court looked at yours.

[00:06:55] Speaker 02:
You're saying, well, she must have.

[00:06:57] Speaker 01:
I handed it to her.

[00:06:59] Speaker 01:
She forced me to hand it to her.

[00:07:01] Speaker 01:
in writing before the hearing, I objected verbally at the hearing, she still asked me to hand it to her, and I did hand it to her.

[00:07:08] Speaker 01:
And it's, I think, no coincidence that when her claim construction order was issued, it included definitions or descriptions of those exaggerated features of our product.

[00:07:18] Speaker 01:
And this case is very clear what effect that had on her by looking at these products, because this is a strange case.

[00:07:24] Speaker 01:
These claims have been defined by seven different fact-finders prior to her.

[00:07:30] Speaker 01:
We had a district court judge, which defined the claim in terms of no restrictions for size or depth.

[00:07:35] Speaker 01:
We won that case, that jury trial.

[00:07:37] Speaker 01:
During re-examination, we had three patent examiners who looked at the exact same record and said the specification doesn't support any limitations to size or depth.

[00:07:48] Speaker 01:
We then go to the Board of Patent Appeals and Interferences, the highest court of the patent office.

[00:07:53] Speaker 01:
They said the same thing, there's no limitations in these claims.

[00:07:57] Speaker 01:
That lack of limitation to size

[00:08:00] Speaker 01:
of the slots hurt us in that proceeding because our patent was invalidated.

[00:08:05] Speaker 01:
But that definition should still stand after it was decided by all those fact finders.

[00:08:11] Speaker 01:
This district court judge looks at our product and comes up with another opinion that's not supported by the record.

[00:08:17] Speaker 01:
She points to one item in the thousand pages of the history, the prosecution history, she looks at a declaration by our expert.

[00:08:27] Speaker 01:
This declaration

[00:08:28] Speaker 01:
And she, we think, it looked as though she tried to find a way for us not to win this case again.

[00:08:37] Speaker 04:
Well, why isn't the re-declaration pretty strong support for the district court's conclusion in this case with regard to claim construction?

[00:08:45] Speaker 01:
Well, he's an expert, Your Honor, that we submitted.

[00:08:48] Speaker 01:
And some parties tell their experts what their opinion should be, I believe, and that's what it ends up being.

[00:08:54] Speaker 01:
This is not that case.

[00:08:57] Speaker 01:
issued an opinion, and some portions of it helped, some portions of it hurt.

[00:09:01] Speaker 01:
It's very inconsistent.

[00:09:04] Speaker 04:
If you look at paragraph three, he says... That sort of gives an air of credibility to a judge.

[00:09:11] Speaker 01:
Your Honor, it is what it is.

[00:09:14] Speaker 01:
If you look at his report, I don't believe he was being untruthful.

[00:09:18] Speaker 01:
He filed a supplemental report that said he didn't understand how to interpret claims.

[00:09:23] Speaker 01:
He tried to correct it.

[00:09:24] Speaker 01:
and it was issued that it was not considered.

[00:09:27] Speaker 01:
But if you look at his report, in paragraph three he says nothing about slots.

[00:09:31] Speaker 01:
He says that the material itself makes this malleable and that that's a big improvement over the prior art and that it's the material.

[00:09:39] Speaker 01:
Two paragraphs later, he talks about these big grooves and that's the paragraph that the district court judge relied on about these grooves.

[00:09:48] Speaker 01:
On page 21, and this is an important page in our appendix, at 807,

[00:09:54] Speaker 01:
He says, when he's talking about the prior art, he says the groups should be invisible.

[00:09:58] Speaker 01:
You should not be able to see them.

[00:09:59] Speaker 01:
There should be hundreds on the bottom of the material.

[00:10:03] Speaker 01:
807 is an important page because it directly contradicts the paragraph that the district court judge relied on.

[00:10:10] Speaker 01:
He's talking about a Baldwin reference.

[00:10:13] Speaker 01:
So in order to have a disclaimer of claim scope, there has to be clear and unmistakable disclaimer.

[00:10:20] Speaker 01:
Here we have an expert that says three different things

[00:10:23] Speaker 01:
and then he admits he didn't quite understand how claim terms work.

[00:10:29] Speaker 04:
This is more in the nature of what is the definition of the terms that we're talking about.

[00:10:37] Speaker 04:
The disclaimer would be a case in which the definition is clear and you are saying notwithstanding the definition, our claims do not extend.

[00:10:45] Speaker 01:
Yes, Your Honor, that is a doctrine, but it has to be clear and unmistakable.

[00:10:51] Speaker 01:
We don't have that here.

[00:10:53] Speaker 01:
I'll give you a moment to read the very bottom of 807 where he's talking about the Baldwin reference.

[00:11:01] Speaker 01:
So this is a direct contradiction to the single paragraph that the district court judge relied on to force into the claims these limitations of material depth.

[00:11:12] Speaker 03:
What we were talking about earlier all came in in connection with the tutorial.

[00:11:17] Speaker 03:
And a tutorial is generally something other than the Markman hearing.

[00:11:20] Speaker 03:
It's something to just give them some advice.

[00:11:23] Speaker 03:
If you're sitting there and you don't like the fact that you grabbed onto your commercial embodiment in the tutorial, and you think your expert statements need some explaining, and she said, do you want a Markman?

[00:11:37] Speaker 03:
And you said, no.

[00:11:40] Speaker 03:
Why is that?

[00:11:43] Speaker 01:
It was not an easy decision.

[00:11:45] Speaker 01:
We had a break.

[00:11:46] Speaker 01:
We went in the hallway and we tried to determine whether anything would be different at the Markman hearing.

[00:11:51] Speaker 03:
uh... again i i i know that you have to bear the responsibility for that i mean you know you argue all of the reasons why the commercial to us why the commercial embodiment of your product was different than what the claims require presumably you could have or you should have made that argument to the district court and if you didn't take the opportunity you had to do that why are we here to fix it your honor i did take the opportunity

[00:12:17] Speaker 01:
Before the hearing, I objected in writing, I objected verbally to her.

[00:12:23] Speaker 01:
She had then still asked me to see the product.

[00:12:26] Speaker 01:
Once she'd seen it and said to them, how'd you lose this case?

[00:12:31] Speaker 01:
And in light of the fact that at that hearing, it was a three-hour hearing.

[00:12:34] Speaker 01:
We went through the entire prosecution history.

[00:12:36] Speaker 01:
We went through the claims.

[00:12:38] Speaker 01:
There was nothing at a Markman hearing that we would have shown that we didn't already show.

[00:12:43] Speaker 01:
There was absolutely nothing.

[00:12:44] Speaker 01:
We brought our experts to that hearing.

[00:12:47] Speaker 01:
Every attribute of a Markman hearing, and in the hallway when she asked if we wanted another one, it would have been an extra charge to our client.

[00:12:55] Speaker 01:
She's still seeing our product.

[00:12:58] Speaker 01:
We couldn't find any purpose to change the name.

[00:13:00] Speaker 03:
And there's no reference to your product in her actual opinion, right?

[00:13:04] Speaker 01:
There is not, no, Your Honor.

[00:13:05] Speaker 03:
But it is... So you're just surmising that obviously it was prejudicial because she looked at it and because she made this comment to your friend.

[00:13:13] Speaker 01:
A couple of things.

[00:13:14] Speaker 01:
Yes, she made the comment to opposing counsel, how do you lose a case?

[00:13:17] Speaker 01:
She said it's like the McDonald's case, because it was so surprising to her.

[00:13:20] Speaker 01:
That was on the record.

[00:13:22] Speaker 01:
And he responded back, the claim construction order, something in effect that was a way to fix that.

[00:13:28] Speaker 01:
Then she issues a claim construction order that varies drastically from, again, seven different fact-finders that have looked at this case.

[00:13:36] Speaker 01:
Then we look at what she supported her opinion with.

[00:13:39] Speaker 01:
She supports it only with an expert report that was expressly disregarded by the three patent examiners during the re-exam, and again, expressly commented on and disregarded as not supported with any evidence by the Patent Office of the Highest Court.

[00:13:56] Speaker 01:
So it appears to be a way of cherry picking one paragraph that would help her

[00:14:03] Speaker 01:
add these limitations to our claims that would make it harder to enforce.

[00:14:07] Speaker 01:
Even with that narrow limitation, we still had a chance to win this case.

[00:14:12] Speaker 01:
She took from us during summary judgment the ability to show that the defendant's product still has a slot when they put their panels together to make the sheet, which is what the claim requires.

[00:14:23] Speaker 01:
There are two-inch pieces that have repeating slots when you put the sheet together.

[00:14:28] Speaker 01:
We still could have won infringement

[00:14:30] Speaker 01:
on that.

[00:14:30] Speaker 01:
She didn't consider that, though.

[00:14:31] Speaker 01:
She considers one panel only in her opinion, her summary judgment opinion.

[00:14:35] Speaker 01:
She doesn't recognize that the claim requires a sheet of these panels.

[00:14:41] Speaker 04:
Can you return momentarily?

[00:14:43] Speaker 04:
I don't want to hold you up long on this, but to page 807.

[00:14:47] Speaker 04:
I've read over 807, and I'm not seeing what it is on 807 that you think is squarely contradictory to Dr. Reed's earlier

[00:14:59] Speaker 04:
testimony.

[00:15:00] Speaker 04:
The one reference to the Whitaker patent is sort of 60%.

[00:15:05] Speaker 01:
The Baldwin patent she's referring to.

[00:15:08] Speaker 04:
Right.

[00:15:08] Speaker 04:
But she talks about the Whitaker patent, which is your patent, I guess, briefly.

[00:15:15] Speaker 04:
What is it about 807 that you think is inconsistent with other portions of Dr. Reeve's declaration?

[00:15:22] Speaker 04:
Because I'm having a hard time seeing the inconsistency.

[00:15:30] Speaker 01:
He says, in order to accomplish the function up near the top, in order to accomplish the function, the physical structure of the grooves or slots would have to be shallow enough to allow the glue to use it as a contact surface.

[00:15:43] Speaker 01:
So he's saying that you don't need any high depth.

[00:15:48] Speaker 01:
A couple sentences down he said, the structure pictured in figure four would have to be small and shallow and exist in numbers in the hundreds so that the under surface appears flat to the naked eye.

[00:16:01] Speaker 01:
And that's what the defendant's product looks like.

[00:16:03] Speaker 01:
It appears flat to the naked eye.

[00:16:05] Speaker 04:
The judge ignored this sentence and said... So this is talking about the Baldwin patent, but you say that is his way of saying that the Whitaker patent should be construed in this manner?

[00:16:24] Speaker 01:
He is referring to the slots of our invention.

[00:16:28] Speaker 01:
and saying for Baldwin to achieve the same function of our material, the slots of Baldwin would have to be undetectable to the naked eye.

[00:16:37] Speaker 01:
There'd have to be hundreds of them.

[00:16:39] Speaker 01:
This is what is on the bottom of the defendant's product.

[00:16:42] Speaker 01:
So again, he said in a couple different ways what this patent covers.

[00:16:50] Speaker 01:
And again, he's not understanding how to interpret claims.

[00:16:52] Speaker 01:
He's looking at the various embodiments of the patent.

[00:16:55] Speaker 01:
And in one of them, which the district court could have also relied on in her summary judgment to say, just like the first district court judge, just like the examination proceeding, just like the port of patent field interference, the claim isn't limited to size and depth of the slots.

[00:17:12] Speaker 01:
It's slots that allow curving and allow it to adhere to the surface.

[00:17:17] Speaker 03:
We'll restore two minutes of rebuttal and we'll add a couple minutes to your time.

[00:17:37] Speaker 00:
Good morning.

[00:17:38] Speaker 00:
My name is Ronald Kopp.

[00:17:40] Speaker 00:
I'm here today representing the Appalachian Plastique and Plastec.

[00:17:45] Speaker 00:
It's a pleasure to be here.

[00:17:47] Speaker 00:
Your Honor, this patent involved in this case does not teach nanotechnology, and yet the appellants would now like it to do so.

[00:17:57] Speaker 00:
What it teaches, and I apologize for my cold, it teaches how to cause durable plastic flooring to bend around surfaces on a boat deck or some other surface.

[00:18:10] Speaker 00:
At the end of the day, we contend, Your Honors, that the case really comes down to

[00:18:16] Speaker 00:
to two issues that if resolved in favor of the APOLI cause anything else to go away.

[00:18:23] Speaker 00:
First is whether longitudinal slots should be defined in a way so as to include micro recesses visible only with an electron microscope.

[00:18:36] Speaker 00:
And secondly, whether longitudinal slots should be defined in a way to include not just grooves on the underside of a plank of the plastic

[00:18:45] Speaker 00:
but also a hypothetical groove that might occur when the edges of two pieces of plastic come together.

[00:18:53] Speaker 00:
The answer to these questions really is found and has been alluded to already this morning in the specification of the 881 patent, which was, how are we going to solve this problem?

[00:19:05] Speaker 00:
This problem that was presented by the proposition that TEEQA, which has been around for a very long time on boat decking, is very hard to curve.

[00:19:15] Speaker 00:
is very hard to maintain.

[00:19:18] Speaker 00:
When one does curb it in application, one has to fasten it down with bolts or screws or some such thing, and it's very high maintenance and also not very durable.

[00:19:31] Speaker 00:
So Mr. Whitaker, the inventor of this particular patent that brings us here today, came up with a way to replicate this teak by way of making a flexible polymer

[00:19:42] Speaker 00:
not wholly unlike lots of other polymer flooring that is out there.

[00:19:46] Speaker 00:
But in this particular case, it would be flexible enough to curve around the shape of a boat deck and avoid being fastened by screws or other types of mechanical fasteners.

[00:19:58] Speaker 00:
There are a lot of flooring products out there, obviously.

[00:20:01] Speaker 00:
Most are extruded.

[00:20:04] Speaker 00:
All are flexible to one degree or another.

[00:20:06] Speaker 00:
The extruded plastic I saw in my hotel room this morning on the floor outside my bathroom

[00:20:12] Speaker 00:
could be curved if necessary to some degree.

[00:20:15] Speaker 00:
The challenge though that the inventor faced was to come up with a design that would allow significant curving so that we could go around corners or at least curves on a boat deck rigid enough to make wear and tear that occurs on a boat surface at the same time.

[00:20:36] Speaker 00:
And here the inventor came up with a solution, put grooves in the bottom.

[00:20:40] Speaker 00:
And if you do that, two things will occur.

[00:20:42] Speaker 00:
Number one, just by mechanical means, one will be able to take this more rigid piece of plastic and make it curve.

[00:20:50] Speaker 00:
That's been known for a while, but apparently, other than in the camera patent, to a small degree, hadn't been applied before.

[00:20:57] Speaker 00:
But the other function that it has is it increases the underside, the square footage, or inchage, if you will, of the underside,

[00:21:07] Speaker 00:
so as to be more receptive to glue or other adhesive so that there's more of a surface for binding and therefore screws or fasteners that are mechanical wouldn't be necessary.

[00:21:19] Speaker 00:
It was a good idea.

[00:21:20] Speaker 00:
What the appellant doesn't like here is that my client, Plastique, developed an alternative to using any of that.

[00:21:29] Speaker 00:
He began using a

[00:21:32] Speaker 00:
a plasticizer that is non-migrating so as to avoid having to use any type of groove in his process.

[00:21:42] Speaker 00:
And in fact, he tried very hard to avoid even an argument of infringement by embossing the bottom so that one could not even make the argument that through the extrusion process that there could be minuscule grooves

[00:22:00] Speaker 00:
as the product is run through the dye.

[00:22:04] Speaker 00:
So he embosses at the bottom to make it very rough and very irregular.

[00:22:09] Speaker 00:
But the appellants have tried to backdoor an infringement claim by asserting that the grooves called out in their patent include any defect, any defect whatsoever, as long as they can take that microscopic.

[00:22:25] Speaker 00:
Let me take you away from this for a while.

[00:22:31] Speaker 02:
During the proceedings below, Flexitique did express its objection to the district court viewing the party's commercial embodiment.

[00:22:42] Speaker 02:
Is that correct?

[00:22:43] Speaker 00:
It is correct, Ronald.

[00:22:47] Speaker 02:
You argue on page two of your brief that they waived their objections with respect to the viewing of the products.

[00:22:56] Speaker 02:
But they did raise objections at various points.

[00:22:59] Speaker 00:
They did raise an objection.

[00:23:01] Speaker 02:
And the reason I'm asking you this is, working backwards, you argued that Flexateq should be sanctioned for its Fifth Amendment arguments.

[00:23:12] Speaker 02:
Page 11 of your brief.

[00:23:14] Speaker 02:
Do you recall that?

[00:23:15] Speaker 02:
I do.

[00:23:17] Speaker 02:
Why shouldn't you be sanctioned for making an argument that they waived their objections?

[00:23:23] Speaker 00:
Because, Your Honor, they made objections at the beginning of the proceeding.

[00:23:28] Speaker 00:
She appeared at some point to go along with them.

[00:23:32] Speaker 00:
Much later in the proceeding, as disclosed by the transcript, if I may, the court simply asked at that point, do you want a marketing?

[00:23:43] Speaker 00:
No, no, no.

[00:23:43] Speaker 00:
Well, later she did.

[00:23:46] Speaker 00:
Much later she said, can I see what your product looks like and how it is manufactured?

[00:23:51] Speaker 00:
And Mr. Smiley says, sure.

[00:23:53] Speaker 00:
That's at page, well, it's at page three of our brief.

[00:23:58] Speaker 00:
But more than that, as the discussion continued, as the judge was viewing the product, Mr. Smiley went on and on about the differences in the product.

[00:24:12] Speaker 00:
He never at any time objected.

[00:24:15] Speaker 00:
He never at any time said, Your Honor, I would prefer not to answer that question.

[00:24:20] Speaker 00:
I've shown you my product.

[00:24:21] Speaker 00:
You ordered me to do that.

[00:24:23] Speaker 00:
But I object to doing anything else.

[00:24:25] Speaker 00:
or I will answer that over an objection.

[00:24:28] Speaker 02:
At some point... Some questions directed really to the fact that I don't like it when people seek sanctions against me for making an argument.

[00:24:39] Speaker 00:
I appreciate that, Your Honor.

[00:24:40] Speaker 00:
This has been a very, very difficult lawsuit with a great deal of... It's been a difficult lawsuit.

[00:24:49] Speaker 00:
I would at this time and on the record withdraw that motion for sanctions.

[00:24:58] Speaker 00:
So there are problems with the assertion of these micro defects.

[00:25:03] Speaker 03:
Let's go back a little bit to where Judge Wallach was taking us, which is a principle argument that your friend spends a lot of time on, which is I think he assumes that there ought to be a rule.

[00:25:17] Speaker 03:
that says it's reversible error for the district court to consider it a commercial embodiment.

[00:25:22] Speaker 03:
And here he goes further to say that it clearly unavoidably infected her ability to come to the right claim construction and discard that.

[00:25:37] Speaker 03:
Let's leave aside the equal protection arguments with respect to trolls and so forth.

[00:25:41] Speaker 03:
But just on that question.

[00:25:43] Speaker 00:
So our view would be that that could be correct if it were apparent from the arguments being made and the discussion with the court being had in either the technology tutorial or in the marketing hearing and then if it was apparent from the judge's claims construction decision that she had taken that into account significantly.

[00:26:06] Speaker 00:
Even a cursory reading of the transcript of the

[00:26:10] Speaker 00:
of the hearing would indicate that nearly all of the questioning related to, for example, the specification, the claims history, including Dr. Rees, many page long declaration.

[00:26:26] Speaker 00:
Yes, Judge Wallach?

[00:26:28] Speaker 02:
Well, I just think that we, somewhere within the standard of review, we have to, unless there's a really good reason, we have to take the court.

[00:26:37] Speaker 02:
The court blows

[00:26:38] Speaker 02:
word when they say, I didn't do this.

[00:26:41] Speaker 00:
I was going to end with that.

[00:26:43] Speaker 00:
And she indicated that she understood what the law was and that she was going to abide by that law.

[00:26:49] Speaker 00:
And so we don't believe in those instances anyway that it is reversible error.

[00:26:53] Speaker 00:
So these defects that are nanometers in size and that are irregular are very, very different from anything that the art or that the patent teaches in any respect.

[00:27:07] Speaker 00:
If one looks at the

[00:27:08] Speaker 00:
specification, if one looks at the figures, if one looks at the claim itself, but certainly if one looks at the information in the file wrapper, including the claim of Dr. Rhee or the statement of Dr. Rhee, the declaration, it is very apparent when one tries to learn from that information what it is that is being taught.

[00:27:30] Speaker 00:
And one certainly is not being taught that he or she can

[00:27:35] Speaker 00:
develop a product that will bend in some significant way by this inadvertent leaving of marks through the manufacturing process.

[00:27:46] Speaker 00:
That would make absolutely no sense.

[00:27:49] Speaker 00:
Now as to these edges, I would start with the proposition, Your Honors, that every single piece of flooring is flat and that every piece of flooring has an edge.

[00:28:03] Speaker 00:
I suppose there could be some old linoleum from my growing up days that is laid across the floor and doesn't have an edge, but certainly of the types that we're talking about, which are planks that come together.

[00:28:14] Speaker 00:
Every piece has an edge.

[00:28:18] Speaker 00:
There is nothing in the claims history, there is nothing in the patent that would teach anyone skilled in the art or otherwise that a groove is to be established by virtue of these pieces coming together.

[00:28:31] Speaker 00:
Pieces coming together has been known forever and certainly has been known since polymer type flooring was developed a number of years ago.

[00:28:41] Speaker 00:
There is nothing being taught whatsoever in terms of all of that becoming groups.

[00:28:50] Speaker 00:
There is some mention of an edge having an overlap or an underlap such that they come together and that that

[00:28:59] Speaker 00:
piece standing alone could be viewed to have at least a half a groove, I suppose, before it comes together.

[00:29:07] Speaker 00:
When it comes together, of course, the object is to get those pieces to come together as tightly as possible.

[00:29:14] Speaker 00:
The object is not to get them to come together in a fashion so that they will accept adhesive and cause that product to adhere more closely to the surface.

[00:29:24] Speaker 00:
These were not intended, these creases or

[00:29:27] Speaker 00:
interconnections were never intended to be a part of the grooving process that was invented by Mr. Whitaker, and they are not.

[00:29:38] Speaker 00:
Dr. Ree stated, and I agree with you, as you might expect, Judge Bryson, that what Dr. Ree says is pretty important because somebody trying to understand what it is that is to be made or manufactured or developed out of this patent

[00:29:58] Speaker 00:
is going to read the patent history and see what is it that they were trying to do.

[00:30:04] Speaker 00:
And Dr. Rhee explains the problem very, very well, very succinctly.

[00:30:09] Speaker 00:
And then he explains how the inventor went about it.

[00:30:12] Speaker 00:
But in terms of these edges coming together supposedly to make grooves, he says at page 789 of the appendix,

[00:30:27] Speaker 00:
And I'll just read two sentences of it.

[00:30:30] Speaker 00:
Quote, the inventor greatly enhanced the degree of flexibility that would have been inherent to the material itself by adding a series of longitudinal slots into a rib in a very tight pattern on the underside of the plank or sheet.

[00:30:44] Speaker 00:
The addition of these longitudinal slots creates the ability of the sheet or plank to curve around tighter and tighter curves where the more inherent, where the mere inherent flexibility of the material

[00:30:56] Speaker 00:
would only allow curvature over very slight or gradual curves.

[00:31:01] Speaker 04:
The fact that a plank... I'm sorry, are you on 789?

[00:31:03] Speaker 00:
I intended to be on 789, Your Honor.

[00:31:07] Speaker 04:
I've lost my place then.

[00:31:10] Speaker 04:
Let me see if I can find it quickly.

[00:31:13] Speaker 02:
It is 789.

[00:31:14] Speaker 02:
We're on 789.

[00:31:15] Speaker 02:
Oh, about halfway in the bottom of the paragraph.

[00:31:23] Speaker 00:
You with me?

[00:31:25] Speaker 04:
Well, go ahead.

[00:31:26] Speaker 04:
I'm just missing it, but that's not, I can find it.

[00:31:36] Speaker 00:
I did, if it will help you, it's about halfway down, but I skipped several words.

[00:31:41] Speaker 00:
I have three dots after the indenture.

[00:31:44] Speaker 04:
Okay, go ahead.

[00:31:45] Speaker 04:
That may be the problem.

[00:31:46] Speaker 00:
Very good.

[00:31:48] Speaker 00:
The fact that a plank has a slot will allow it to curve more than it inherently could.

[00:31:53] Speaker 00:
The fact that a plank

[00:31:54] Speaker 00:
has an edge is meaningless, as all flat surfaces have edges.

[00:32:00] Speaker 00:
Edges are inherent to flat surfaces.

[00:32:03] Speaker 00:
The fact that edges of a plastic flooring piece coming together with another is anything but novel.

[00:32:09] Speaker 00:
And here we would submit that the plaintiffs are grasping at straws.

[00:32:15] Speaker 00:
My clients want only to be able to permit, be permitted to manufacture their product

[00:32:22] Speaker 00:
in their small factory in Copper, Ohio, which they have been attempting to do with the burden of this lawsuit over their head now for many years.

[00:32:31] Speaker 00:
Their product is very different from the product at issue.

[00:32:36] Speaker 00:
It certainly accomplishes some of the same purposes, but in very different ways, and it is separately patented.

[00:32:43] Speaker 00:
There is nothing new about placing polymer products on a floor of any type to create the look of a woodstock substance.

[00:32:49] Speaker 00:
It happens every day, probably

[00:32:51] Speaker 00:
will happen to you by the end of this day.

[00:32:54] Speaker 00:
The fact is that these two parties have arrived at very different solutions to the problem that was presented.

[00:32:59] Speaker 00:
There is no infringement.

[00:33:01] Speaker 00:
The district court's judgment should be affirmed.

[00:33:03] Speaker 04:
Would you like to comment on the portion of Dr. Lee's declaration that your opposing counsel referenced on 807?

[00:33:17] Speaker 00:
I gave it to him so that he would have it in front of him so I wasn't able to follow it as closely.

[00:33:23] Speaker 00:
I wonder if you could point me on 807 to where it is that... Right.

[00:33:26] Speaker 04:
Well, he's referencing the Baldwin patent, figure four of the Baldwin patent.

[00:33:34] Speaker ?:
Yes.

[00:33:35] Speaker 04:
began to read, I think, with this section that says, in order to accomplish this function, the physical structure of the grooves would have to be shallow enough to allow the glue to use it as a contact surface, i.e., the grooves could not be deep.

[00:33:49] Speaker 04:
I think that's what he's saying.

[00:33:51] Speaker 04:
Yeah, I think that's the main thing.

[00:33:57] Speaker 04:
And would have to exist in numbers in the hundreds.

[00:33:59] Speaker 04:
But I guess the numbers in the hundreds is not necessarily consistent with your construction.

[00:34:03] Speaker 00:
I don't recall as well the Baldwin pattern as I should.

[00:34:08] Speaker 00:
I certainly think that he was also attempting to distinguish the Kemmerer pattern where the grooves were huge.

[00:34:15] Speaker 00:
He was trying to say that they would be much smaller.

[00:34:18] Speaker 00:
Nowhere is he indicating that these grooves would be in some fashion random and would be nanometers in size.

[00:34:25] Speaker 00:
That would be my only response from him.

[00:34:28] Speaker 04:
But I'm wondering about the glue adhesion factor.

[00:34:33] Speaker 04:
Let's say slots that are, suppose the piece of wood is actually of some material thickness, let's say half an inch thick, I don't know.

[00:34:43] Speaker 04:
And the slot is 3 quarters of that distance.

[00:34:47] Speaker 04:
Glue is not typically going to go all the way up into a 3 eighths of an inch slot, is it?

[00:34:56] Speaker 00:
It would be my guess that it would not always do that, depending upon the pressure used to put the material down.

[00:35:03] Speaker 04:
Well, this may be committing the error that is at the center of this case.

[00:35:07] Speaker 04:
But typically in this art, how thick are these pieces of faux wood?

[00:35:15] Speaker 00:
Typically in the art, if the material is 3 1⁄8 of an inch thick, the slots will be about a quarter of that.

[00:35:23] Speaker 04:
I see.

[00:35:24] Speaker 00:
All right.

[00:35:25] Speaker 00:
Thank you very much.

[00:35:43] Speaker 01:
If this were a different circumstance, if the patentee had taken one position during re-examination and saved the patent and then taken an opposite position in litigation to win infringement, the error in that would be abundantly clear and you probably would have decided this case on the briefs.

[00:36:05] Speaker 01:
It wouldn't be fair for a patentee to take a position to win and an opposite position to also win.

[00:36:11] Speaker 01:
In this situation, we have

[00:36:13] Speaker 01:
been forced to take one definition of our claims to lose our patent, re-examine, and then the district court gave us the opposite definition to make us lose in litigation.

[00:36:25] Speaker 01:
It's just as unfair.

[00:36:27] Speaker 01:
The lower court, I'm sorry, the patent office twice looked at these claims and said there's nothing in the specification to support a limitation to the claims.

[00:36:40] Speaker 01:
The only piece of evidence that the district court

[00:36:42] Speaker 01:
looked at to assign these definitions to the claims, the deeper definitions, was one paragraph of Reeve's declaration that is in contrast to the previous paragraph that discusses nothing about slots and the end of page 21 where it talks about the slots are in the hundreds and undetectable to the naked eye.

[00:37:02] Speaker 04:
Of course, there is a difference between the standard employed by the PTO and the standard employed by district courts with respect to claim construction, broadest reasonable construction versus the actual construction.

[00:37:13] Speaker 01:
Absolutely, Your Honor.

[00:37:14] Speaker 04:
So that it's not necessarily irreconcilable for the PTO to reach one result and the district court to reach a different claim construction.

[00:37:23] Speaker 01:
I completely agree, but hopefully both are logical steps to achieving a patent definition.

[00:37:30] Speaker 01:
And the cases are clear.

[00:37:32] Speaker 01:
You look at the claims themselves, the claim language.

[00:37:34] Speaker 01:
There's no limitation to size or depth in the claim language.

[00:37:37] Speaker 01:
The specification, the district court said in her order,

[00:37:40] Speaker 01:
There's nothing in the specification to limit the depth or size.

[00:37:43] Speaker 01:
If you look in the prosecution history, there's nothing except for one paragraph of our expert who contradicted himself above, below that paragraph, and in a supplemental declaration said he didn't really understand how claim terms work, and it's a complicated process.

[00:37:59] Speaker 01:
So to ignore the definitions that were given by seven different fact-finders and that allowed this patent to reissue

[00:38:09] Speaker 01:
and then go the opposite direction is fundamentally unfair to a plaintiff.

[00:38:13] Speaker 01:
We ask that the lower court be reversed and that we be able to achieve a claim definition that relies on clear and unmistakable record evidence of what the patent intended.

[00:38:27] Speaker 03:
Thank you.

[00:38:28] Speaker 03:
We thank both counsel and the case is submitted.