[00:00:00] Speaker 01:
In-text Recreation Corps versus Team Worldwide Corporation.

[00:00:32] Speaker 01:
Mr. Glipsenstein?

[00:00:37] Speaker 01:
Stein, Your Honor, yes.

[00:00:38] Speaker 01:
Gosh, I'm readling everyone's names today.

[00:00:40] Speaker 01:
I'm so sorry, Mr. Glipsenstein.

[00:00:42] Speaker 01:
Please proceed.

[00:00:43] Speaker 01:
Thank you, Your Honor.

[00:00:44] Speaker 03:
Good afternoon, Your Honors, and may I please report.

[00:00:47] Speaker 03:
There were two central errors of the law that warrant vacating the decision below, reinstating the magistrate judge's claim construction for the disputed term socket, and remanded as matter.

[00:01:01] Speaker 03:
With regard to the first set of errors, the district court judge resolved numerous factual disputes against my client team worldwide.

[00:01:13] Speaker 03:
To take as just one example the claim term electric pump.

[00:01:19] Speaker 03:
The construction for that term is not contested.

[00:01:22] Speaker 03:
Our expert tendered evidence that mapped court's construction to the aspects of the accused products.

[00:01:31] Speaker 03:
The district court in considering that issue never even addressed our expert's evidence on that point.

[00:01:38] Speaker 03:
In fact, the district court in considering that issue never even addressed the construction for that term in finding and accepting in Texas proposal on how that term should be applied in this case.

[00:01:57] Speaker 03:
Now, the second issue is one of claim construction, and that concerns the claim term socket.

[00:02:05] Speaker 03:
On that issue, the district court failed to defer in any way to the magistrate judge's decision, finding that that term should be construed to mean an opening or hollow that fits and that holds an inserted part.

[00:02:24] Speaker 04:
I thought what the magistrate said was it's

[00:02:27] Speaker 04:
perfectly apparent that there are a couple of possible meanings out there in the world.

[00:02:32] Speaker 04:
In order to decide which one is the governing one here, we look at the intrinsic evidence.

[00:02:39] Speaker 04:
So the starting point doesn't produce a single plain meaning.

[00:02:45] Speaker 04:
The dispositive considerations are all intrinsic evidence.

[00:02:50] Speaker 04:
And on that, as the Supreme Court just said, that's de novo.

[00:02:54] Speaker 04:
But putting aside the Rule 72 business.

[00:02:58] Speaker 03:
The magistrate judge looked, as we submit was appropriate, to the variety of dictionary definitions that were in evidence.

[00:03:07] Speaker 03:
Considered the range of those dictionary definitions.

[00:03:11] Speaker 03:
Frankly, they are all sort of coalesced around the construction that the magistrate judge in fact adopted, which was in fact taken from the Webster's dictionary definition that was in the record.

[00:03:23] Speaker 03:
She then appropriately, per Phillips, considered the intrinsic evidence, did not see evidence of disclaimers, did not see evidence of lexicography, reviewed the fact that claim language in a related case in fact included the word detachable in describing the connection between the electric pump

[00:03:47] Speaker 03:
and the socket and from the basis of her review of the intrinsic evidence saw no reason to depart from the ordinary means as informed by the extensive dictionary definitions in the record.

[00:04:02] Speaker 03:
So with regard to the first part of her analysis I think the record is clear that she did consider extrinsic evidence and then again appropriately reviewed intrinsic evidence to consider whether

[00:04:14] Speaker 03:
there were disclaimers or disavowals in the record that would depart from that.

[00:04:18] Speaker 03:
Now the magistrate judge in considering, I'm sorry, excuse me, the district court judge in considering the magistrate judge's claim construction order followed this court's authority in the Cyborg case and concluded that no deference was warranted.

[00:04:33] Speaker 04:
Can I ask you, is it not common practice in district courts

[00:04:39] Speaker 04:
to give de novo review to claim construction opinions by magistrates, even claim construction opinions, whether or not they're called report and recommendation, and whether or not they are accompanied by truly dispositive recommendations like grant summary judgment.

[00:05:02] Speaker 03:
Well, in this particular case, the order of reference was pursuant to Rule 72.

[00:05:07] Speaker 03:
And Rule 72 has two relevant parts, I think, in response to your question.

[00:05:14] Speaker 03:
One is for non-dispositive matters.

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And I think while we all understand and agree that there are certainly circumstances where claim construction can have sort of a dispositive effect on an aspect of a case, I don't believe that a claim construction order is

[00:05:32] Speaker 03:
a dispositive matter for purposes of Rule 72A.

[00:05:36] Speaker 04:
I asked you a second question.

[00:05:38] Speaker 04:
To the extent you know, is it routine practice in the district courts to grant de novo review of claim construction opinions by magistrate?

[00:05:52] Speaker 03:
Your Honor, I'm sorry, I don't know the sort of prevalence of that at all.

[00:05:56] Speaker 03:
I have this one example where

[00:05:58] Speaker 03:
The district court judge at least believed that this was subject to Rule 72A.

[00:06:03] Speaker 04:
Right.

[00:06:03] Speaker 04:
The district judge here in a footnote says that might have been an independent basis for de novo review, cites a couple of decisions.

[00:06:09] Speaker 04:
I started looking at those.

[00:06:10] Speaker 04:
They in turn cite others.

[00:06:12] Speaker 04:
And at least it's my general recollection that it's utterly routine that district judges give the claim construction process to the magistrate and then grant and then review it de novo because it is

[00:06:27] Speaker 04:
so often so close to dispositive as to be fairly within that language of Rule 72?

[00:06:36] Speaker 03:
Well, with regard to the policy underlying TIVA, I certainly could see post-TIVA why that practice, if it is in fact, as Your Honor suggests, to be fairly

[00:06:49] Speaker 03:
common to be de novo.

[00:06:51] Speaker 03:
I would submit that in most cases, I mean, prior to the TIVA decision two weeks ago, it simply didn't matter because of this court sideboard decision and the notion that it's de novo anyway.

[00:07:02] Speaker 03:
So quite honestly, I'm not aware of a decision where

[00:07:06] Speaker 03:
this issue was actually framed for consideration.

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Because again, I think as the district court acknowledged the footnote that your honor refers to, it just simply didn't matter.

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But now it does.

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And so we're in a situation that frankly does have similarities to TIVA, where a magistrate judge was charged with the task of reviewing both the intrinsic and the extrinsic record.

[00:07:33] Speaker 01:
I'm not sure I understand why this case would fall under, have a notion of increased deference.

[00:07:41] Speaker 01:
And the reason I say that is because what both the magistrate judge and the district court judge both seemed to suggest was plain meaning of socket is known, accepted.

[00:07:53] Speaker 01:
Granted, what the district court judge said is there's two plain meanings, one in a mechanical sense, one in an anatomical sense.

[00:08:00] Speaker 01:
But neither of them seemed to me needed to or made a credibility or fact determination that this dictionary definition is more appropriate than this one because I don't see how the extrinsic evidence here morphed

[00:08:16] Speaker 01:
the question into one in which deference is necessary, because I didn't see either of them rely on it as the necessary predicate for their conclusion.

[00:08:28] Speaker 03:
Your Honor, I certainly see that, and I should maybe preface my response to that by saying we don't see this as a case, frankly, where this deference issue has an impact ultimately on the correct claim construction.

[00:08:42] Speaker 03:
This is not a case where we say deference

[00:08:45] Speaker 03:
you know the answer changes my point is simply when one looks at the magistrate judges.

[00:08:50] Speaker 01:
Here's my stupid question I maybe just don't know the right answer to this question but isn't a district court always permitted to reconsider a question of law decided by a magistrate judge?

[00:09:07] Speaker 01:
Doesn't 72A and B not preclude a district court from reconsidering de novo

[00:09:13] Speaker 01:
any question of law resolved by a magistrate judge?

[00:09:17] Speaker 03:
Well, I think there's a question certainly in this case as to what happened ultimately on summary judgment where the district court further narrowed the construction.

[00:09:27] Speaker 03:
So there in response to your honest question, I would say not without notice to the parties should the judge have further narrowed his construction and given us an opportunity to address that narrowed construction.

[00:09:38] Speaker 03:
But in the general sense, yes.

[00:09:41] Speaker 03:
I mean, in the broad sense where a district court judge decides to revisit claim construction, again, provided that parties are given proper notice of that.

[00:09:54] Speaker 03:
Yes, the district court judge can revise the construction.

[00:09:57] Speaker 03:
So that's why I say I don't think the deference issue matters so much here as it does sort of underscore what we submit was missing from the district court's approach to claim construction here.

[00:10:10] Speaker 03:
I mean, fundamentally, the district court judge adopted a claim construction that plainly read in limitations from some of the embodiments

[00:10:19] Speaker 03:
in the specification and just as plainly excluded other embodiments in the specification.

[00:10:26] Speaker 02:
Why don't we start there?

[00:10:28] Speaker 02:
What was so wrong about the district court saying embodiments 8, 9, and 10 which are about chambers and motors and fans aren't encompassed by these claims which are referring to sockets and electric pumps

[00:10:45] Speaker 02:
which really is what is being contemplated in embodiments one through seven.

[00:10:50] Speaker 03:
Well, I think three answers to that question, Judge Ten.

[00:10:53] Speaker 03:
I think if one sort of looks at the specification as a whole, this is a specification that is sort of well-crafted.

[00:11:00] Speaker 03:
The early embodiments speak in detail about the implementations there.

[00:11:06] Speaker 03:
As we get to those later embodiments, eight, nine, and ten, what we see is sort of standard patent drafted where

[00:11:13] Speaker 03:
It is the differences, the delta, that are discussed in those later embodiments.

[00:11:18] Speaker 02:
There's nothing in the specification when... Are you saying that embodiments eight, nine, and ten are beginning to scope out on a broader, more conceptual level compared to the first seven embodiments?

[00:11:29] Speaker 03:
What I'm saying is that if one looks, for example, at embodiments five and six,

[00:11:34] Speaker 03:
Those embodiments discuss a waterproof switch configuration.

[00:11:37] Speaker 03:
If one then goes to embodiment eight, one sees the new concept there of deflation by reversing the direction of rotation of the fan motor.

[00:11:45] Speaker 03:
Using chambers and motors and fans.

[00:11:48] Speaker 03:
Well, certainly there were motors and fans in the earlier embodiments, but with regard to the word chamber, chamber is clearly discussed throughout the spec.

[00:11:58] Speaker 03:
In those embodiments, eight and ten,

[00:12:02] Speaker 03:
that the chamber is the hollow region that is formed.

[00:12:05] Speaker 03:
I'd like to draw the court's attention to embodiment nine, for example.

[00:12:11] Speaker 03:
Embodiment nine does not use the word chamber at all.

[00:12:14] Speaker 03:
Does it use the word socket?

[00:12:16] Speaker 01:
Housing.

[00:12:16] Speaker 03:
It uses the word housing.

[00:12:18] Speaker 03:
And I think that's interesting and notable because embodiment three plainly says that the socket in embodiment three is a cylindrical housing.

[00:12:26] Speaker 03:
So now the reader comes a few columns later to embodiment nine.

[00:12:31] Speaker 03:
and sees a discussion of housing that's also cylindrical.

[00:12:35] Speaker 03:
On what principle would that reader conclude that that cylindrical housing is not a socket, whereas the one that's described expressly as a socket in embodiment three is?

[00:12:47] Speaker 03:
These are simple structural issues, and there's no obligation on the patent drafter to repeat

[00:12:53] Speaker 03:
time and time again for every single embodiment, the baseline principles that were established earlier on.

[00:12:59] Speaker 02:
And with regard to embodiment eight... You don't think different terms should be understood as the inventor contemplating different meanings?

[00:13:06] Speaker 03:
Well, they're different terms, but they're not, as Intex suggests and as the District Court

[00:13:12] Speaker 03:
breathe, they are not antithetical terms.

[00:13:15] Speaker 03:
The socket is clearly described as the structure that defines a certain space.

[00:13:21] Speaker 02:
So we see a wide range of sockets.

[00:13:23] Speaker 02:
You're rotating the pump into the socket.

[00:13:26] Speaker 02:
There's flanges and grooves.

[00:13:28] Speaker 02:
You're fitting in the pump into the socket.

[00:13:31] Speaker 03:
Well, for some sockets, some sockets are merely a ring of material.

[00:13:35] Speaker 03:
Other sockets are a cup-shaped cylindrical housing.

[00:13:39] Speaker 03:
That's the one in vitamin 3 and also in vitamin 7.

[00:13:42] Speaker 03:
So when the reader gets to vitamin 9,

[00:13:44] Speaker 03:
and sees a cup-shaped housing, there's absolutely no reason to think that that's not part of the invention just as the prior embodiments are.

[00:13:52] Speaker 03:
The similarities are much more apparent than the differences are.

[00:13:55] Speaker 03:
The differences go to variations on the core theme.

[00:14:00] Speaker 03:
You know, the core theme of this invention is the idea of recessing the pump and the pump body into the mattress itself.

[00:14:08] Speaker 03:
These notions of detachability were frankly in the prior art.

[00:14:11] Speaker 03:
If you look at figure one in the patent, it shows a detachable motor.

[00:14:15] Speaker 03:
The suggestion that detachability would take on some patentable or some claim construction significance is really belied by the fact that the prior art was detachable.

[00:14:27] Speaker 03:
Moreover, the applicant could not have been clearer during prosecution when amending the claims and explaining the patentable content to the examiner, to point to embodiment eight, which is one of the so-called chamber embodiments, as an embodiment of the amended claims.

[00:14:45] Speaker 03:
The intrinsic record here simply could not be clearer.

[00:14:47] Speaker 03:
There's an express direction, if you will, in the prosecution history saying, in the public record.

[00:14:54] Speaker 03:
What if we just conclude that was

[00:14:56] Speaker 03:
overly exuberant citation of an additional site to the spec.

[00:15:01] Speaker 03:
It's hard to see where the exuberance really lie.

[00:15:05] Speaker 03:
It was actually a very clear pointing in that comment to both the third embodiment and also the eighth embodiment.

[00:15:17] Speaker 02:
Do you have claims that are very clearly, tightly directed to embodiment state nine and ten?

[00:15:24] Speaker 03:
Yes, I mean the claims at issue in this case 14 and 16 are... Besides the claims we're talking about on appeal.

[00:15:33] Speaker 03:
In this patent, no.

[00:15:35] Speaker 03:
Other patents?

[00:15:39] Speaker 03:
The only other issued patent is the 760 patent, I believe, and that's the one that I think is worth noting.

[00:15:46] Speaker 02:
Do you use words like chambers and motors and fans?

[00:15:49] Speaker 02:
Any of those claims in the 760?

[00:15:52] Speaker 03:
Those particular words, no.

[00:15:55] Speaker 03:
Claim one does talk about a socket.

[00:15:57] Speaker 03:
and it says in that plane that the socket is detachably connected, I'm sorry, the pump is detachably connected to the socket.

[00:16:05] Speaker 03:
If I look at this court's authority in, for example, the Rambus decision in 2012, which cites to Omega Engineering,

[00:16:12] Speaker 03:
from 2003, it says, you know, effectively one can and should look at the usage of claim terms in related cases to understand how they should be construed in this case.

[00:16:23] Speaker 03:
So, I mean, in effect, substantively, one should be able to look at that other claim as though it is actually in this patent and to say, you know, there's a claim where the patent applicant took pains to know that the relationship or the connection

[00:16:40] Speaker 01:
is between the palm and i think i knew exceeded your fifteen minutes in fact you're sixteen minutes i will restore some of your about time but we should hear from mister carter thank you

[00:16:56] Speaker 00:
Thank you.

[00:16:57] Speaker 00:
May it please the court.

[00:16:58] Speaker 00:
And if I may begin, I would like to continue the discussion of the questioning, Judge Chin, that you had for TWW's counsel.

[00:17:04] Speaker 00:
And that is, are there claims directed to the chamber embodiment?

[00:17:08] Speaker 00:
And in fact, there were.

[00:17:09] Speaker 00:
They were pursued in another application that was not allowed by the Patent and Trademark Office.

[00:17:15] Speaker 00:
And even further, there are pending claims at the Patent and Trademark Office now of a pump that is connected directly to an inflatable body.

[00:17:25] Speaker 00:
Those claims have never been allowed after years of prosecution.

[00:17:29] Speaker 00:
TWW said the core theme in their patent is resetting the pump into the body.

[00:17:35] Speaker 00:
That is not the patent that we have here.

[00:17:38] Speaker 00:
We have a patent that is focused on having a socket as the connection between the pump and the inflatable body.

[00:17:45] Speaker 00:
TWW is currently trying to get claims with a pump directly connected to an inflatable body.

[00:17:51] Speaker 00:
What they say is the core theme.

[00:17:53] Speaker 00:
But after years and years of prosecution, the Patent Trademark Office has not given them those claims.

[00:17:58] Speaker 00:
And they are now asking this court to do what it is the Patent Trademark Office has never done.

[00:18:05] Speaker 04:
In those claims that you just referred to, do some of them at least make clear that this pump is inside the inflatable mattress as opposed to attached to it but sticking out from it?

[00:18:24] Speaker 00:
I do not know the answer to that question.

[00:18:29] Speaker 00:
look and get it in a second, but the key is that in the claims that are currently pending, it's the pump directly connected without specifically claiming as we have in this case the socket providing that connection.

[00:18:43] Speaker 00:
There are three independent reasons

[00:18:45] Speaker 00:
why Judge Freeman's summary judgment opinion should be affirmed.

[00:18:49] Speaker 00:
The first has nothing to do with the claim construction of socket.

[00:18:52] Speaker 00:
And that is that the claims as written are a pump connected to a socket.

[00:18:58] Speaker 00:
The pump and the socket are two separate, distinct structures.

[00:19:02] Speaker 00:
And in this case, we just have a pump.

[00:19:05] Speaker 00:
We do not have a pump and a socket.

[00:19:07] Speaker 00:
The second and third reasons why Judge Friedman's summary judgment opinion should be affirmed are based on his construction of socket.

[00:19:16] Speaker 04:
The first point, am I remembering correctly, that their response is that essentially the housing is the socket, the pump is the stuff that gets inserted into the housing, and so if the district judge had only

[00:19:35] Speaker 04:
attended to their experts, explanation of what constitutes the pump.

[00:19:41] Speaker 04:
He would have seen that there is a socket and a pump.

[00:19:45] Speaker 00:
Yes, and I think on this issue they take it a step further where they say you can take the pump housing and cut it.

[00:19:53] Speaker 00:
I guess take a jigsaw or something else and cut out the rim.

[00:19:58] Speaker 00:
of the housing and say that that rim of the housing is the socket and everything else is the pump connected to the socket.

[00:20:06] Speaker 00:
This court's case law on this issue is very clear that you cannot take here this pump and turn it into a socket in a pump.

[00:20:17] Speaker 00:
It's very similar to the Vectin case where you could not take a hinge.

[00:20:22] Speaker 04:
So without reference to cases involving different language, why are the innards of this thing not the pump leaving the housing as the socket?

[00:20:33] Speaker 00:
Well, the record on this that Judge Freeman has is very clear, looking at the evidence that was submitted as opposed to attorney argument, is that for this device to work, as claimed, the claim says that the electric pump is connected to the socket to inflate the inflatable body.

[00:20:55] Speaker 00:
To inflate the inflatable body for the accused product, you need everything.

[00:21:01] Speaker 00:
The pump is the base plate, the inners, and the housing.

[00:21:07] Speaker 04:
Did their experts say the opposite?

[00:21:11] Speaker 04:
That the housing was not, in fact, part of the pump as somebody relevant skilled person would understand it?

[00:21:20] Speaker 00:
Judge Friedman said that their evidence was that because you can take the pump apart, you can remove the faceplate, you can go through the label and remove one set of screws,

[00:21:36] Speaker 00:
and take that off and then go in and remove another set of screws and then take those innards out to have what Judge Friedman found was a loose collection of parts.

[00:21:45] Speaker 00:
When you do that, you are then left with a housing.

[00:21:49] Speaker 00:
You are not left with a usable pump that is going to do anything.

[00:21:54] Speaker 00:
And that's what he found is that based on the evidence that was provided as opposed to attorney argument, that when you deconstruct the pump,

[00:22:04] Speaker 00:
You can't then just take an individual part, such as the housing, and say, okay, I'm now going to consider this to be something separate.

[00:22:12] Speaker 02:
So when you say that this report reached this conclusion based on the evidence, are you saying that DWW didn't provide any evidence on this question?

[00:22:21] Speaker 02:
what elements are or are not pumped?

[00:22:24] Speaker 02:
It's just purely and exclusively only attorney argument?

[00:22:30] Speaker 00:
What they did not provide, what Judge Freeman pointed to that they didn't provide and what wasn't attorney evidence.

[00:22:36] Speaker 00:
What did they provide?

[00:22:38] Speaker 00:
What they provided, yes, they have their demonstratives as opposed to pictures of the actual pump.

[00:22:43] Speaker 00:
They have their demonstratives where they color things up.

[00:22:46] Speaker 00:
And they show, in their opinion, how things fit together.

[00:22:49] Speaker 00:
And they talk about what those different pieces are and what they do.

[00:22:53] Speaker 00:
But what they don't do, and I think this is the crux of what Judge Freeman was pointing out of what they did provide evidence, is that when you take the housing away, they did not provide any evidence in the record that when you take that away, that it will do what the claim requires, which is inflate the inflatable body.

[00:23:12] Speaker 00:
So yes, they did point at these various demonstratives and say, you have these different pieces and we think these different pieces are the pump.

[00:23:20] Speaker 00:
But they didn't show that how those pieces would inflate the inflatable body.

[00:23:25] Speaker 00:
As opposed to the evidence provided by Intex, was that you need the entire structure.

[00:23:31] Speaker 00:
The entire structure that both parties through this whole case have called pumps.

[00:23:35] Speaker 00:
That you need the entire pump to do what the claim requires, which is to inflate the inflatable body.

[00:23:43] Speaker 00:
So that is the first reason why Judge Friedman's opinion should be affirmed.

[00:23:50] Speaker 00:
The second and third reasons are based on the claim construction of sockets.

[00:23:56] Speaker 00:
The second reason is that the pump housing, what it is that TWW says that when you take everything out of it and you have this loose collection of parts, that that is the socket.

[00:24:08] Speaker 00:
That pump housing does not fit and hold onto anything, let alone a pump.

[00:24:15] Speaker 00:
As shown at the summary judgment hearing and as documented in Judge Freeman's opinion, when you have those loose collection of parts and they're just sitting in the housing, as soon as you tip it over past horizontal, they all fall out.

[00:24:31] Speaker 00:
The third reason why Judge Friedman's opinion should be affirmed is that based on his definition of socket, this pump housing, what it is that TWW says is the socket, is not detachably connected to anything, let alone a pump.

[00:24:52] Speaker 01:
Why not?

[00:24:52] Speaker 01:
Their device has, what is it, eight screws.

[00:24:56] Speaker 01:
How is that not detachably connected?

[00:24:57] Speaker 01:
Anybody with a screwdriver can take it apart.

[00:25:01] Speaker 00:
Looking at this device, you have a pump that is connected to a socket.

[00:25:08] Speaker 00:
It's the entire pump that's connected to the socket.

[00:25:11] Speaker 00:
And you have to disassemble all of those components.

[00:25:16] Speaker 00:
to take all of those components off of what it is they say is the socket.

[00:25:20] Speaker 00:
So it isn't just the fact that you have to use a screwdriver to take 8 to 11 screws out depending on which pump model you're working with.

[00:25:29] Speaker 00:
That's one of the facts that Judge Friedman looked at, but that isn't it alone.

[00:25:35] Speaker 00:
It's that when you do that, when you strip this pump down to where it's all the internal components and the faceplate, this is what he called a loose collection of parts,

[00:25:45] Speaker 00:
inside the housing, there's no genuine dispute that someone is going to look at that and say that you have anything, let alone a pump, detachably connected to a socket.

[00:25:59] Speaker 02:
Is that your basis for distinguishing one of our cases that dealt with the question of whether

[00:26:06] Speaker 02:
one structure was detachably connected to another structure when they were fastened together by screws.

[00:26:13] Speaker 02:
Don't we have a case that says that can be detachably connected?

[00:26:20] Speaker 00:
So there are two cases in the briefing on this issue, at least two cases.

[00:26:23] Speaker 00:
One is the Darrell case and the other one is the Millipore case.

[00:26:27] Speaker 00:
In the Durrell case, this court did find it was a two to one decision that for the limitation at issue there, which wasn't socket by the way, it wasn't looking at the issue in the context of a socket, but it was looking at a seat on a foundation, as I recall.

[00:26:45] Speaker 00:
And they said that it should be remanded so that you can determine whether there is any harm to the seat.

[00:26:51] Speaker 00:
when it is removed by those screws.

[00:26:55] Speaker 00:
Well, here, there is no genuine dispute at all about whether what it is that even TWW says is the pump, that there's harm done to it.

[00:27:06] Speaker 00:
It's just a loose collection of parts inside the socket.

[00:27:09] Speaker 00:
So for that reason, Durrell does not point in favor of a remand in this case.

[00:27:15] Speaker 00:
The Millipore case is, I believe the term there was removable, replaceable.

[00:27:21] Speaker 00:
that they were looking at.

[00:27:23] Speaker 00:
And they looked at whether you could take this piece off as a whole.

[00:27:28] Speaker 00:
And there, this court did affirm a summary judgment finding of no infringement based on whether it's removed as a whole.

[00:27:37] Speaker 00:
And once again here, nothing is removed as a whole.

[00:27:39] Speaker 00:
As Judge Friedman found, it's a loose collection of parts

[00:27:42] Speaker 00:
in the pump housing when you're done stripping everything off the housing.

[00:27:47] Speaker 01:
If we didn't agree with you in terms of the resolution of the detachable issue, either on the specific outcome as applied to this case, namely whether the accused device is potentially detachable, or on the fact that the word detachable was required in the definition of socket, would you still prevail on the fit and hold issues such that the outcome would be the same regardless?

[00:28:10] Speaker 00:
Correct.

[00:28:10] Speaker 00:
There are three independent reasons.

[00:28:12] Speaker 01:
Okay, I just want to make sure I understood.

[00:28:13] Speaker 00:
Yes, absolutely.

[00:28:14] Speaker 00:
So detachable is one of the three reasons.

[00:28:17] Speaker 00:
There's also that that housing when you strip it of all the components is not fitting and holding onto anything.

[00:28:23] Speaker 00:
You know, once again, when you have that loose collection of parts... You're saying you turn it upside down and it all falls out.

[00:28:28] Speaker 00:
It isn't fitting and holding onto anything.

[00:28:31] Speaker 00:
And the first reason that I mentioned and that we discussed is that you have a pump.

[00:28:36] Speaker 00:
You don't have a separate pump and a socket.

[00:28:39] Speaker 00:
and this court's case law doesn't allow you to go in and do things such as... Okay, so here's my question.

[00:28:44] Speaker 01:
Do you have kids?

[00:28:45] Speaker 00:
Absolutely.

[00:28:46] Speaker 01:
Alright, okay.

[00:28:47] Speaker 01:
So then you're going to know what I'm talking about.

[00:28:48] Speaker 01:
You know that toy that has a flat base and a post that comes up and a bunch of rings that gets smaller as it gets to the top and they're in various colors.

[00:28:56] Speaker 01:
I don't know a person who didn't own this toy at some point in their life.

[00:28:59] Speaker 01:
So, wouldn't you say those rings fit on and that that post is holding those rings?

[00:29:07] Speaker 00:
I would not.

[00:29:08] Speaker 00:
particularly in the context of a socket.

[00:29:12] Speaker 01:
I'm not talking about a socket, I'm talking about the post holding all those little rings.

[00:29:16] Speaker 01:
aren't those rings fitting on that post?

[00:29:18] Speaker 01:
Isn't that post holding those rings?

[00:29:19] Speaker 01:
You wiggle it around, those rings aren't going anywhere.

[00:29:21] Speaker 01:
But if you turn it upside down, the rings fall off.

[00:29:23] Speaker 01:
You see where I'm going, and you're trying to prevent where I'm going by saying you don't agree, but I don't see how that post isn't, how those rings aren't fitting on that post and how that post is not holding those rings.

[00:29:34] Speaker 00:
Yeah, I understand.

[00:29:34] Speaker 00:
And I think that that example is analogous to what I would consider to be a coin holder or a pin holder.

[00:29:41] Speaker 00:
or a serial bowl holding cereal, yes, it is a holder.

[00:29:47] Speaker 00:
It's holding it.

[00:29:48] Speaker 00:
But it is not in the context of a socket.

[00:29:53] Speaker 00:
And when you look at even the dictionary definitions of socket, let alone looking at the difference between socket and chamber, how those were used in the specification, and the restriction requirement, and the fact that the socket claims were pursued, the chamber claims were not pursued.

[00:30:09] Speaker 00:
When they were pursued, they weren't even allowed.

[00:30:11] Speaker 00:
So I think that your example is an example more akin to a pen holder.

[00:30:19] Speaker 01:
My example is pedestrian or juvenile, are you?

[00:30:24] Speaker 00:
I won't comment on that.

[00:30:26] Speaker 00:
But it is not an example of somebody looking at that post to hold those rings as a socket.

[00:30:36] Speaker 01:
Anything further?

[00:30:36] Speaker 01:
If not, let's hear from the opposing council.

[00:30:40] Speaker 01:
A little bit of time left for rebuttal.

[00:30:44] Speaker 03:
Thank you, Ron.

[00:30:45] Speaker 03:
Sorry I didn't catch that.

[00:30:47] Speaker 01:
How much time do I have?

[00:30:49] Speaker ?:
I don't know.

[00:30:49] Speaker 01:
I'm waiting for her to put it back on.

[00:30:51] Speaker 01:
How much time did he have left?

[00:30:53] Speaker 01:
Oh, nothing?

[00:30:54] Speaker 01:
Yeah, go ahead and give him three minutes.

[00:30:57] Speaker 01:
How about that?

[00:30:58] Speaker 03:
Thank you, Ron.

[00:30:59] Speaker 03:
Just to address this evidentiary issue, because our expert was consistent and clear from 2006 onward as to what maps to what in the claims, to the suggestion that this is all

[00:31:14] Speaker 03:
attorney argument, I would direct the court to the record at A1273-74 for discussion of the pump A motor and what maps to what.

[00:31:24] Speaker 03:
Also A2199 for the pump B motor.

[00:31:28] Speaker 03:
Our expert analyzed that at A1271, discussed the operation at A1272 and also at A2198.

[00:31:35] Speaker 03:
This evidence was all in front of the court.

[00:31:37] Speaker 03:
Our expert considered what components of these accused products perform the claimed function, the undisputed function of the electric pump.

[00:31:48] Speaker 03:
is it's an electrically powered machine or device for raising, compressing, or transferring fluids, including gases.

[00:31:54] Speaker 02:
That's not understood.

[00:31:55] Speaker 02:
So is there somewhere in the statement that expressly says the innards by themselves without any kind of housing or chamber or space plate can by itself inflate the air matrix?

[00:32:12] Speaker 02:
Where is that statement?

[00:32:14] Speaker 03:
So if I could take

[00:32:15] Speaker 03:
U2, for example, 1273 to 1274.

[00:32:19] Speaker 03:
This is our expert's report from 2006.

[00:32:25] Speaker 03:
And he says, in paragraph Roman at three, he says, the socket is shown in green in figure 60-10.

[00:32:36] Speaker 03:
That's what they like to call the housing.

[00:32:38] Speaker 03:
So the products contain an electric pump used to inflate and deflate.

[00:32:41] Speaker 03:
He says the electric pump is shown in multiple colors in these figures.

[00:32:45] Speaker 03:
and he goes through and sort of color-codes exactly what they are.

[00:32:49] Speaker 03:
And to call them innards is, that's their semantic narrative.

[00:32:53] Speaker 03:
And I understand why they say that.

[00:32:55] Speaker 03:
But these are innards in the very same way that the sockets in the embodiment, I'm sorry, the pumps in the very embodiments in the patents, they're innards too.

[00:33:04] Speaker 03:
I mean, they get inserted into cups and wells and rings as just as theirs do.

[00:33:09] Speaker 04:
Are all of the pieces of the pump disregarding the housing?

[00:33:15] Speaker 04:
sufficiently connected to each other that you can take the whole thing out as a unit, leaving the housing inside?

[00:33:24] Speaker 03:
Your Honor, you would have to, you know, sort of, generally speaking, you're going to pull them out as separate sub-components.

[00:33:30] Speaker 03:
That's sort of the most direct way I can think to answer that question.

[00:33:34] Speaker 04:
But isn't, I mean, isn't that

[00:33:36] Speaker 04:
something like at the core of their point about this?

[00:33:39] Speaker 03:
Well, I don't think so.

[00:33:41] Speaker 03:
And I don't think that it's germane.

[00:33:43] Speaker 03:
The claims here are clear.

[00:33:44] Speaker 03:
They say it's an electric pump connected to the socket.

[00:33:48] Speaker 03:
This is not like the Millipore case, which was concerned with the state of the part after it was removed, because that's what the claim contemplated.

[00:33:54] Speaker 02:
The claim also says, including a pump body.

[00:33:57] Speaker 02:
Yes.

[00:33:58] Speaker 02:
Right?

[00:33:58] Speaker 02:
So what's the body here?

[00:34:00] Speaker 03:
Well, the body has been construed as the main part of the pump.

[00:34:03] Speaker 03:
And I'm glad you asked that question, Judge Chen, because

[00:34:06] Speaker 03:
The district court in claim construction concluded, found, that no housing was required for the electric pump.

[00:34:13] Speaker 03:
And yet here, their non-infringement argument centers on the existence of what they call housing.

[00:34:18] Speaker 03:
But if one looks at these components, I mean, there's a unitary motor and impeller unit that sits in the socket.

[00:34:27] Speaker 03:
And when you pull it out, you still have a unitary motor and impeller unit.

[00:34:31] Speaker 03:
And if you apply electrical current to the little tabs that stick out of there,

[00:34:36] Speaker 03:
The fan will spin, and it will convey air from one hole of that impeller housing.

[00:34:41] Speaker 03:
There's a little housing that surrounds that impeller fan.

[00:34:45] Speaker 03:
It will convey air from one port to the other.

[00:34:48] Speaker 03:
There's no fundamental distinction here between the way that their device works and the way, frankly, that the embodiments work in our patent.

[00:34:58] Speaker 01:
OK, Mr. Goldstein, I think we have your argument.

[00:35:01] Speaker 01:
Thank you.

[00:35:01] Speaker 01:
The case is taken under submission.

[00:35:02] Speaker 01:
We thank both counsel.

[00:35:03] Speaker 01:
This concludes our proceedings for today.

[00:35:20] Speaker 04:
The Honor Report is adjourned until tomorrow morning at 10 a.m.

[00:35:50] Speaker ?:
I'm sure it's a question.