[00:00:00] Speaker 04:
14-1845, imaginal systematic versus legate and plat.

[00:00:05] Speaker 04:
Mr. Hanle?

[00:00:08] Speaker 03:
Hanley.

[00:00:09] Speaker 04:
Say it again.

[00:00:09] Speaker 04:
Hanley.

[00:00:10] Speaker 04:
Hanley.

[00:00:10] Speaker 04:
Got it.

[00:00:12] Speaker 04:
Is there a Y on the end, or no?

[00:00:14] Speaker 01:
There's not.

[00:00:14] Speaker 01:
It's pronounced as though there should be a Y. It's the German Hanley instead of the Irish.

[00:00:20] Speaker 03:
Go ahead.

[00:00:21] Speaker 01:
We won't hold that again.

[00:00:24] Speaker 01:
Thank you, Judge O'Malley.

[00:00:27] Speaker 01:
I'll start with the vision guidance issue.

[00:00:30] Speaker 01:
the entire claim term in context is moving the fact that the use of a vision-guidance system until the fastening tool is located at a target fastening location.

[00:00:39] Speaker 04:
Can I ask just a quick couple of procedural questions before we get moving on this?

[00:00:45] Speaker 04:
So you did in fact ask for a permanent injunction in the complaint.

[00:00:49] Speaker 04:
I went back and got it to see.

[00:00:51] Speaker 04:
But then after the jury verdict, you never moved for

[00:00:57] Speaker 04:
an injunction or a compulsory license or anything.

[00:01:01] Speaker 04:
Why is that?

[00:01:04] Speaker 01:
That was in the first case?

[00:01:07] Speaker 01:
Uh-huh.

[00:01:07] Speaker 01:
What we decided is because the issues as far as the damage determination in the first case were sort of convoluted, we wanted to have a public review of those issues before we sought ongoing royalties with respect to that.

[00:01:18] Speaker 04:
No, but that's not normal.

[00:01:20] Speaker 04:
Normally, at least the way we see it when it comes up to us is the motion is made and it may be stayed.

[00:01:26] Speaker 04:
by the district court until the completion of appellate review, but it isn't just abandoned and not made.

[00:01:33] Speaker 04:
We very seldom see people not move.

[00:01:38] Speaker 04:
You're not a troll, right?

[00:01:39] Speaker 01:
No, we're not.

[00:01:40] Speaker 01:
We were practicing and we were basically driven out of business by the injunctions.

[00:01:45] Speaker 04:
I know.

[00:01:45] Speaker 04:
I saw that you were practicing.

[00:01:48] Speaker 04:
I was also surprised.

[00:01:49] Speaker 04:
Let me ask you something else.

[00:01:50] Speaker 04:
The opening brief when you asked for ongoing royalties indicated that since eBay, injunctions are rarely granted.

[00:02:00] Speaker 04:
Do you really think that?

[00:02:01] Speaker 04:
Because I don't think that.

[00:02:02] Speaker 04:
You're not a troll.

[00:02:03] Speaker 04:
I mean, it's true when you're talking about NPEs and trolls.

[00:02:06] Speaker 04:
It's absolutely true.

[00:02:07] Speaker 04:
That's exactly what we see playing itself out.

[00:02:10] Speaker 04:
But for companies like yours, I mean,

[00:02:12] Speaker 04:
I don't think it's true that injunctions are rarely granted.

[00:02:15] Speaker 01:
Our view is that injunctions are rarely granted unless the patentee is actually presently practicing the invention.

[00:02:21] Speaker 01:
And so in our case, we were driven out of business back in 2005.

[00:02:25] Speaker 04:
And so without the type of irreparable market damage that you might incur if you're competing with an infringer, then it's... When you say you were driven out of business, I guess that means you wouldn't have argued that if the infringement were terminated, you'd be able to go back into the market.

[00:02:43] Speaker 01:
That would have been difficult at that point in time.

[00:02:45] Speaker 01:
The company had lost its investors, and so that would have been very difficult.

[00:02:49] Speaker 01:
I will say, by the way, this issue is not before you because the issue, the collateral estoppel application and the race to Cata application, all those issues were settled.

[00:03:03] Speaker 01:
We're now on to a new machine.

[00:03:05] Speaker 01:
or a modified machine.

[00:03:07] Speaker 01:
So I appreciate your honor's question, but I respectfully don't believe that issue bears on any of the issues on this appeal.

[00:03:14] Speaker 01:
If your honor believes it does, I'd be happy to address that.

[00:03:17] Speaker 04:
I was just very confused by the procedural progress because I

[00:03:21] Speaker 04:
I didn't understand.

[00:03:24] Speaker 04:
Part of this case was, although it now seems to have been settled, the issue of whether there should be and what the amount should be of an ongoing royalty going forward on the same machine.

[00:03:34] Speaker 04:
For a while, that was part of this case, correct?

[00:03:36] Speaker 04:
That was part of the first case.

[00:03:37] Speaker 04:
No, it was also part of this case.

[00:03:39] Speaker 04:
When you brought in this case, it was both because, unless I'm mistaken, it was because they were continuing to infringe and you wanted an ongoing royalty.

[00:03:47] Speaker 01:
That is true, but with a slight modification.

[00:03:50] Speaker 01:
There was a motion in the first case after the appeal for an award of ongoing royalties.

[00:03:56] Speaker 01:
The district court, Judge Klausner, ruled against us on that, but said, you can bring a new case to recover royalties for the ongoing infringement.

[00:04:04] Speaker 01:
And that's what we did.

[00:04:04] Speaker 01:
We brought a new case.

[00:04:06] Speaker 04:
This one.

[00:04:07] Speaker 01:
This one.

[00:04:07] Speaker 01:
Yeah.

[00:04:08] Speaker 01:
And didn't make a request for, quote unquote, ongoing royalties in this case.

[00:04:11] Speaker 01:
We just made a traditional claim for the royalties since the judgment in the last case.

[00:04:17] Speaker 03:
Right.

[00:04:18] Speaker 03:
But there were two pieces to that.

[00:04:19] Speaker 03:
One part of it was infringement as it relates to the old machine.

[00:04:24] Speaker 03:
And now we're looking at the modification.

[00:04:27] Speaker 03:
Correct.

[00:04:27] Speaker 03:
But as to the old machine, you settled that part.

[00:04:29] Speaker 03:
We settled that part.

[00:04:31] Speaker 03:
Right.

[00:04:31] Speaker 03:
And so the confusion is that there was some question as to why we weren't looking at a contempt proceeding versus a new action.

[00:04:40] Speaker 03:
But now we understand why you didn't seek that injunction.

[00:04:46] Speaker 03:
with respect to the modified machine.

[00:04:53] Speaker 03:
So because we're not under contempt proceeding, we're just simply looking at the issue of infringement anew, correct?

[00:05:00] Speaker 01:
Correct.

[00:05:01] Speaker 03:
All right.

[00:05:01] Speaker 03:
Now, OK, you can go ahead and get to where you want to be.

[00:05:05] Speaker 01:
So back to what the district court did and where the error came in, the district court looked at the dictionary definition of the word guidance.

[00:05:12] Speaker 01:
And the dictionary definition was the act of directing or controlling the path or course of something.

[00:05:18] Speaker 01:
Now, had the district court stopped there, the error would likely have been avoided.

[00:05:22] Speaker 01:
But the District Court went on to look at subsequent dictionary, other dictionary definitions of the well understood words, path or course.

[00:05:31] Speaker 01:
And because those definitions refer to movement, the District Court changed the definition of guidance to a system that directs or controls the direction or movement of something.

[00:05:43] Speaker 01:
And the addition of the word movement to the construction fundamentally alters the plain meaning of guidance.

[00:05:48] Speaker 01:
Controlling the movement of something such as stop, go, slow down, speed up is broader than controlling the path or course of an object.

[00:05:57] Speaker 01:
Turn left, turn right.

[00:05:58] Speaker 01:
So by looking at a series of dictionary definitions that the district court did, it's not difficult to imagine getting far afield from the meaning that's used in the patent.

[00:06:08] Speaker 01:
It's reminiscent of that children's game telephone where the first child whispers one thing and as you go around the circle the definition that the first thing said changes.

[00:06:17] Speaker 04:
I don't understand how your argument regarding this term would affect the outcome of this case given the manner in which the infringing device operates.

[00:06:27] Speaker 01:
So, very simply, if the construction is the construction proposed by Imaginal, namely moving the passing tool to the target passing location without using a camera to... No, without using a vision guidance system.

[00:06:48] Speaker 01:
And now I'm referring to the construction and vision guidance system.

[00:06:52] Speaker 01:
So the dispute was over what that meant.

[00:06:55] Speaker 04:
And so if the construction is without the... The accused device uses a camera, only one camera, and it is looking at the stapler and it's deciding whether or not the stapler should move up and down based on whether or not the mattress is properly aligned below it.

[00:07:14] Speaker 04:
Now there

[00:07:16] Speaker 04:
But what it is doing quite clearly is controlling the up and down movement of the stapler because if something happens and the mattress moves or is a jar and it no longer sees the direct connection, it stops the stapler in its tracks and doesn't allow it to continue on to go down and do the fastening.

[00:07:38] Speaker 04:
How is that not using a camera, even under your definition, for the purpose

[00:07:43] Speaker 04:
of moving the stapler in the direction generally perpendicular to the base.

[00:07:48] Speaker 01:
Guidance is not controlling the movement.

[00:07:49] Speaker 01:
Guiding is steering.

[00:07:51] Speaker 01:
Guiding is changing the aim.

[00:07:52] Speaker 01:
Guiding is not saying stop or go.

[00:07:54] Speaker 04:
But that doesn't make sense because the rest of the claim says, without the division guidance system, in a direction generally perpendicular relative to the base.

[00:08:02] Speaker 04:
So what it's talking about is the stapler going up and down.

[00:08:06] Speaker 04:
It actually says exactly what direction we're talking about, perpendicular to the base.

[00:08:12] Speaker 04:
So I don't understand.

[00:08:15] Speaker 01:
Yes, so basically that's the general direction of the movement of the stapler, but to get to the target passing location there needs to be steering, which is the purpose of the vision guidance system.

[00:08:23] Speaker 01:
That's revealed in the specification.

[00:08:24] Speaker 04:
No, no, that's the prior element, moving the module with the module alignment device.

[00:08:28] Speaker 04:
As I understand it from the patent, that is the portion of the method whereby the mattress is aligned so that the stapler would then be able to go up and down perpendicular and make to it.

[00:08:40] Speaker 04:
So that's a different element.

[00:08:42] Speaker 01:
It is a different element.

[00:08:44] Speaker 01:
That element is moving the modules along the base of the machine.

[00:08:50] Speaker 04:
No, it's not moving along the base.

[00:08:53] Speaker 04:
It's aligning.

[00:08:54] Speaker 04:
the modules, aligning them.

[00:08:56] Speaker 01:
Moving with the module alignment device.

[00:08:58] Speaker 01:
So you're moving the staples into rough alignment with the staples.

[00:09:00] Speaker 04:
And they used the camera to do that and that's not a problem and the district court said so.

[00:09:03] Speaker 04:
I didn't even understand the briefing on your part on that regard.

[00:09:07] Speaker 04:
You seem to suggest fault the district court for importing the negative limitation into the module alignment.

[00:09:12] Speaker 04:
He totally did not do that.

[00:09:14] Speaker 04:
So I don't see, it seems like the camera is also used though to control the up and down movement of the fastening tool.

[00:09:22] Speaker 01:
That's right, and that's not guidance.

[00:09:24] Speaker 01:
And if you look at the specification, it makes it clear what is meant by guidance.

[00:09:27] Speaker 01:
It says without the vision guidance system of the 789 patent.

[00:09:31] Speaker 01:
The 789 patent is a guidance system which looks down the length of the stapler at the target fastening location and steers

[00:09:41] Speaker 01:
the stapler into the target passing location.

[00:09:46] Speaker 01:
And that is the excluded vision guidance system.

[00:09:48] Speaker 01:
The patent doesn't exclude a vision guidance system which does nothing more than say go up or go down.

[00:09:54] Speaker 01:
That's made clear in the written description because it says without the use of the vision guidance of the 789 patent, but it says that vision guidance can be used in the module alignment step, which is exactly what happens here.

[00:10:07] Speaker 01:
The camera looks not at the target, which is very important.

[00:10:10] Speaker 01:
that the excluded vision guidance system is one that looks down at the target.

[00:10:14] Speaker 01:
This vision guidance system of the accused device does not look down at the target, looks straight across and sees the first row of modules, and that is not vision guidance, that is not the excluded vision guidance term that is excluded by the pack.

[00:10:28] Speaker 03:
You don't argue that the 789 itself contains the definition of the phrase vision guidance system.

[00:10:34] Speaker 01:
I would argue that it does.

[00:10:35] Speaker 01:
And that definition is quoted in the, and I'll read it, it's quoted in the 402 pack.

[00:10:48] Speaker 03:
And basically... Show me where it is in the 789.

[00:10:53] Speaker 01:
Okay.

[00:10:55] Speaker 01:
In the 789, it's at A1118, column 1, lines 23 to 27.

[00:11:07] Speaker 01:
And what it states is that the vision guidance system automatically locates the modules on the frame and then guides a fastener tool such as the stapler into proper position to secure the modules to the frame automatically.

[00:11:21] Speaker 01:
So that is the excluded vision guidance system.

[00:11:23] Speaker 01:
The very same language is used both in the 789 patent and in the 402 patent to describe what is excluded.

[00:11:32] Speaker 01:
And the vision guidance system

[00:11:35] Speaker 01:
The Accused Vision Guidance System does not automatically locate the modules on the frame.

[00:11:40] Speaker 01:
It doesn't even look at the frame.

[00:11:42] Speaker 01:
It only looks at the module and sees that it's in alignment underneath the staples, which is a permitted use of vision guidance.

[00:11:49] Speaker 04:
You're well into your rebuttal time.

[00:11:50] Speaker 04:
Do you want to save time?

[00:11:51] Speaker 01:
I will save the rest of it.

[00:11:54] Speaker 04:
Mr. Shumsky?

[00:12:14] Speaker 02:
Thank you, Your Honor.

[00:12:15] Speaker 02:
May it please the court, Eric Chomsky, representing the athletes.

[00:12:19] Speaker 02:
Judge Moore, I think that where you started, or at least where you started the questioning about the claims, construction is really the right place to begin, which is that this doesn't make any difference.

[00:12:31] Speaker 02:
This system uses a camera.

[00:12:33] Speaker 02:
It is a vision-based system.

[00:12:36] Speaker 02:
that directs, controls, the path, the course, the movement, whatever term you want to use of these staplers up and down.

[00:12:43] Speaker 02:
And so under any of this language, it is plainly non-infringing.

[00:12:48] Speaker 02:
This was the whole point of the new system.

[00:12:52] Speaker 02:
The earlier devices did not use a camera.

[00:12:56] Speaker 02:
They used a computer positioning system in conjunction with mechanical grippers.

[00:13:01] Speaker 02:
and to get around the claim of the patents to redesign, a perfectly permissible and laudable thing to do, the machines were changed to move to a vision-based guidance system, and the cameras are what do the work here.

[00:13:16] Speaker 02:
If you look at the Sturgis declaration, it is a camera that looks down the length of the modules and as the Sturgis

[00:13:33] Speaker 02:
Declaration explains it's an A1288-93.

[00:13:36] Speaker 02:
This controls the movement of the staplers.

[00:13:40] Speaker 02:
It controls their course.

[00:13:42] Speaker 02:
It allows them to descend.

[00:13:44] Speaker 02:
It tells them to descend.

[00:13:45] Speaker 02:
If there is a lack of alignment, it literally tells the staplers to reverse course and to move back up.

[00:13:51] Speaker 04:
I couldn't tell that.

[00:13:52] Speaker 04:
Does it tell them to move up or does it just tell them to stop?

[00:13:54] Speaker 04:
Does it actually cause the stapler to retract?

[00:13:58] Speaker 03:
Yes, Your Honor.

[00:14:00] Speaker 03:
You've got that CD with all the demonstrations of how it works.

[00:14:05] Speaker 03:
Which series of alignment photos is the one that you believe is use of the photo for the perpendicular movement?

[00:14:21] Speaker 02:
I'm actually not sure that any of the videos

[00:14:24] Speaker 02:
reflect the perpendicular movement of the staplers.

[00:14:29] Speaker 02:
What you see in, I believe it's video exhibits seven, eight, and nine, is the computer readout, which is the image of the camera sort of looking down the row of modules.

[00:14:42] Speaker 02:
And that shows the wire being realigned, one in real time and one is a bit slower.

[00:14:48] Speaker 02:
But I don't believe any of them actually show what Sturgis describes, which is the staplers

[00:14:53] Speaker 02:
going down, stopping, going down a little bit more, retracting.

[00:14:57] Speaker 02:
So long answer to a simple question for which I apologize.

[00:14:59] Speaker 02:
I don't believe any of them actually reflect that aspect of the movement.

[00:15:04] Speaker 00:
So the camera or the guidance system does operate while the staple is in the process of moving down between the two sides of the module to the base where it will perform the stapling action?

[00:15:19] Speaker 02:
Correct, Judge Shaw.

[00:15:19] Speaker 02:
That's exactly right.

[00:15:21] Speaker 02:
and that is what is controlling the downward movement and then potentially the upward movement of the staplers.

[00:15:28] Speaker 02:
Judge O'Malley, I think it's really telling that the argument quickly moves to the 789 patent and I just want to pick up on your question about that.

[00:15:38] Speaker 02:
The construction that the other side has proffered is one that first of all seeks to import this limitation from the spec into the claims, namely to transform the meaning from

[00:15:49] Speaker 02:
a vision-guiding system in the generic sense to the vision-guiding system of the 789 patent.

[00:15:55] Speaker 02:
I think that right there is enough under Thorner versus Sony to say that that's an impermissible construction.

[00:16:02] Speaker 02:
But even if it weren't, even if you accepted that the 402 was trying to use the 789 as some kind of a definition, I would suggest that it shouldn't be permitted here.

[00:16:13] Speaker 02:
Precisely because the term is nowhere defined, I to this day couldn't tell you

[00:16:18] Speaker 02:
what the relevant aspect of the 789 patent is.

[00:16:22] Speaker 02:
Imaginal argues in its reply brief at page 11 that there are certain essential features of the 789 patent, and so now we're at the point where a vision guidance system in the 402 means the essential features of the vision guidance system of the 789 patent, but the essential features that were identified in the reply brief

[00:16:42] Speaker 02:
don't actually show up together in the 789 patent until dependent claim 30 out of 31 claims.

[00:16:49] Speaker 02:
This just doesn't provide the public notice that would be required and it seems to us that the simpler construction is one that sticks with the ordinary meaning of the term.

[00:17:01] Speaker 03:
With respect to the issue of infringement, the district court says that the

[00:17:07] Speaker 03:
undisputed evidence shows that the camera is used for purposes of the perpendicular movement.

[00:17:15] Speaker 03:
So if it's not in any of those submitted materials that you gave us, where is that undisputed evidence?

[00:17:25] Speaker 02:
Well, I believe it is reflected in the Sturgis Declaration, where Sturgis explains that it moves up and moves down stops and can move back up.

[00:17:36] Speaker 02:
And I don't believe there was any dispute about that in the record.

[00:17:40] Speaker 02:
I think that the court had that absolutely right.

[00:17:44] Speaker 02:
And I would hasten to add, Your Honor, that as we come to the court today, there has not been an argument.

[00:17:52] Speaker 02:
That is to say, Imaginal has not disputed that there's non-infringement as a matter of law under the district court's construction.

[00:17:59] Speaker 02:
And indeed, under the construction, the slightly different construction that we had proffered.

[00:18:04] Speaker 02:
So really, the only way, the only basis to disturb the judgment would be if the court agreed with Imaginal's proposed claim construction.

[00:18:13] Speaker 02:
And we think that has the defect

[00:18:14] Speaker 02:
that we were just discussing.

[00:18:19] Speaker 04:
Do you have anything further?

[00:18:20] Speaker 02:
No, the court has no further questions.

[00:18:22] Speaker 02:
Thank you very much.

[00:18:24] Speaker 04:
Mr. Hanley, you have some rebuttal time.

[00:18:26] Speaker 01:
Thank you.

[00:18:27] Speaker 01:
I'll start with a quote from the written description and going back to this issue of vision guidance as being steering and not just saying stop.

[00:18:32] Speaker 04:
What page and line and column?

[00:18:35] Speaker 01:
Column three.

[00:18:36] Speaker 04:
You're not at 789, you're at 402.

[00:18:39] Speaker 01:
Column three, line 43.

[00:18:41] Speaker 01:
quote, mechanical guide 32 is used to steer the stapler head 32A target on the bottom portion of module without the use of the vision guidance system of the 789 pattern.

[00:18:54] Speaker 01:
Now that paragraph goes on to say that the invention quote may be used with a vision guidance system and in this embodiment vision guidance is less exact in guiding the stapler directly to the target as in the 789 pattern.

[00:19:07] Speaker 01:
but could provide vision guidance to an initial position adjacent to each module.

[00:19:13] Speaker 01:
Now that is exactly how vision guidance is used in the ACCUSED device.

[00:19:18] Speaker 01:
Vision guidance is not used to steer, which is the excluded aspect of vision guidance.

[00:19:25] Speaker 01:
And therefore, the ACCUSED device does not use vision guidance

[00:19:33] Speaker 01:
the type of vision guidance that is excluded.

[00:19:38] Speaker 03:
Why didn't you write the relevant step of the claim that way then?

[00:19:43] Speaker 01:
I believe it was written that way.

[00:19:45] Speaker 03:
There's no reference to steering.

[00:19:47] Speaker 03:
There's no reference to the 789.

[00:19:48] Speaker 01:
It's without the use of vision guidance, moving the fastening tool to the target fastening location without the use of vision guidance.

[00:19:56] Speaker 01:
We think that the concept, the claim language,

[00:20:00] Speaker 01:
in concert with the written description is very clear that the only excluded type of vision guidance is vision guidance that steers.

[00:20:07] Speaker 03:
But the very lines that you refer us to, so if you look at 49 and 50, it's understood that the mechanical guide may also be used with a vision guidance system.

[00:20:17] Speaker 03:
So use that same phrase.

[00:20:19] Speaker 03:
And then you say in this embodiment that vision guidance is less exacting in guiding the stapler.

[00:20:24] Speaker 03:
So you use the concept of vision guidance system without steering the stapler

[00:20:29] Speaker 03:
And then, but you're telling us that when you use vision guidance system in the claim, we have to assume it only means steering the statement.

[00:20:38] Speaker 01:
Not precisely, because the previous step, you need to read step six and seven together, moving the module with the module alignment device, and that doesn't exclude vision guidance.

[00:20:47] Speaker 03:
So you can use vision guidance in step six.

[00:20:50] Speaker 03:
some kind of vision, some kind of camera.

[00:20:53] Speaker 03:
But if you want us to assume that vision guidance always means steering the stapler, then number six wouldn't even involve steering the stapler, right?

[00:21:02] Speaker 03:
And you've just said right here that it doesn't.

[00:21:04] Speaker 01:
That's right.

[00:21:05] Speaker 01:
But my point is that reading the claim language in harmony with the written description, what you have is vision guidance is excluded in the moving the fasting tool step, so there's no steering.

[00:21:16] Speaker 01:
But vision guidance is allowed in the alignment step, which is moving

[00:21:20] Speaker 01:
the module along the way.

[00:21:21] Speaker 04:
Do I understand your argument to be, I think I understood it from the brief, to be that the vision guidance system that must be excluded is the one from the 789 patent?

[00:21:31] Speaker 01:
In essence, but we specifically characterize what the excluded vision guidance system is.

[00:21:41] Speaker 01:
And there's a quote, it's the page I referenced earlier, there's an almost identical quote from column

[00:21:49] Speaker 01:
starting line 40 of the 402 patent is a quote from the 789 patent which is at A1118 at column 123.

[00:22:01] Speaker 04:
I don't understand what vision guidance system is the one that's excluded according to the... It's one that automatically locates the modules on the frame.

[00:22:10] Speaker 04:
So it's not necessarily the one of the 789 patent?

[00:22:15] Speaker 01:
It is, but the 402 patent does a little better by telling you what it is about the 789 patent vision guidance system that is excluded.

[00:22:24] Speaker 04:
So you're telling me today, not the identical one?

[00:22:28] Speaker 01:
It is the identical one.

[00:22:29] Speaker 01:
It's simply

[00:22:30] Speaker 01:
it's simply characterizing it in a way that is digestible in the force.

[00:22:34] Speaker 04:
So wait, I just want to be clear.

[00:22:36] Speaker 04:
Is the only vision guidance system that you have exempted in that element, the one in the 789 patent?

[00:22:45] Speaker 04:
Are you saying 402 has said the only

[00:22:47] Speaker 04:
one that can't be used is exactly the one in 789.

[00:22:50] Speaker 01:
That's true, but bear in mind that the one in the 789, Pat, it's got general features and there are many optional features.

[00:22:59] Speaker 04:
But the sentence you just pointed us to, it is understood that the mechanical guide may also be used for the vision guidance system.

[00:23:05] Speaker 04:
In this embodiment, the vision guidance system is less exact in guiding the stapler directly to the target as in 789.

[00:23:15] Speaker 04:
So aren't you, in this sentence, saying it's not exactly the same vision guidance system as the 789?

[00:23:22] Speaker 04:
Isn't that just plain meaning of this sentence?

[00:23:24] Speaker 01:
I don't think so.

[00:23:25] Speaker 01:
I think that's saying what is included.

[00:23:28] Speaker 01:
See, the one that's excluded is the one in the 789 patent.

[00:23:31] Speaker 01:
The sentence that you just read is telling you what is included within the invention of the 402 patent.

[00:23:36] Speaker 01:
And that's exactly the point.

[00:23:37] Speaker 04:
So it's not all of the aspects of vision guidance in 789 that are excluded.

[00:23:44] Speaker 04:
It's only a particular portion of what the 789 vision guidance system would do.

[00:23:47] Speaker 01:
It is the general concept of the 789 patent vision guidance.

[00:23:50] Speaker 01:
Just using cameras to look down at the target passing location and steer the stapler to the target passing location.

[00:23:57] Speaker 04:
If we're out of time, thank post council for their argument.

[00:24:00] Speaker 04:
The case is taken under submission.