[00:00:10] Speaker 01: We have four cases for schedule for oral argument this morning. [00:00:16] Speaker 01: Our first case is Lugas IP versus Volvo Car Corporation. [00:00:23] Speaker 01: Mr. Which? [00:00:24] Speaker 00: Fuse. [00:00:25] Speaker 00: Fuse. [00:00:26] Speaker 00: Fuse. [00:00:27] Speaker 01: Fuse. [00:00:28] Speaker 01: And I understand you have your reserving seven minutes for rebuttal, is that correct? [00:00:32] Speaker 00: I believe so, Your Honor. [00:00:35] Speaker 01: OK, you may proceed. [00:00:36] Speaker 00: May it please the court, my name is John Fuse for Pellance Lugas. [00:00:40] Speaker 00: I'd like to briefly address two points that I think the case is focusing on at this point. [00:00:47] Speaker 00: The first has to do with the district court's construction of the phrase, when said child is not located in said child's safety seat. [00:00:59] Speaker 00: The district court, in construing when, did not adopt Lugas's position, did not adopt the Volvo. [00:01:07] Speaker 03: Let's assume that you're right and the district court was wrong [00:01:11] Speaker 03: about its construction, the word win. [00:01:15] Speaker 03: Isn't there still a problem for you with respect to the requirement that the Volvo seat automatically go into a fully contoured position to accommodate an adult, but it doesn't. [00:01:32] Speaker 03: There has to be some human intervention. [00:01:35] Speaker 03: I mean, that's separate from the win issue, I think. [00:01:37] Speaker 00: Correct. [00:01:38] Speaker 00: That's my second point, which I can jump to now for your honor. [00:01:41] Speaker 00: And that is, there's a fundamental disagreement between the parties and even the district court in terms of how the Volvo seat operates. [00:01:48] Speaker 00: The district court in granting the summary judgment motion stated, a user must manually press the Volvo seat bottom from the elevated child position into the stowed adult position. [00:02:00] Speaker 00: That's an A70. [00:02:02] Speaker 00: That's an incorrect understanding of how the Volvo seat operates. [00:02:05] Speaker 00: Even Volvo in the Markman admitted [00:02:08] Speaker 00: When you pull the lever, the seat bounces back a bit. [00:02:10] Speaker 00: That's A384. [00:02:12] Speaker 00: The video in the Connolly Declaration, which is A879, all shows the seat. [00:02:19] Speaker 03: Do we have the video? [00:02:20] Speaker 03: I don't remember. [00:02:21] Speaker 00: I mean, there's pictures from the video. [00:02:23] Speaker 00: The video was submitted, I believe, several weeks ago. [00:02:28] Speaker 03: I know there was a picture from the video. [00:02:30] Speaker 00: Correct. [00:02:30] Speaker 00: Shows the seat. [00:02:32] Speaker 00: After the lever is pulled, the seat automatically flies down. [00:02:37] Speaker 00: The issue is what happens after it flies down. [00:02:42] Speaker 00: The court then focused on subsequent pushing and locking and only analyzed infringement from that position. [00:02:49] Speaker 00: The district court did not analyze infringement from the point at which the seat is in a retracted position. [00:02:55] Speaker 00: And those are the pictures you see in our brief. [00:02:57] Speaker 00: The seat comes down and then subsequently can be pushed back. [00:03:01] Speaker 00: So then the question is, as the seat is released and is in that [00:03:05] Speaker 00: retracted position. [00:03:07] Speaker 00: Does that or does that not mean the claim limitations? [00:03:10] Speaker 03: When you're saying this is the picture, I guess it'd be at 32 of your brief? [00:03:15] Speaker 00: That's prior to release, Your Honor. [00:03:24] Speaker 03: It goes 32 through 34. [00:03:27] Speaker 00: 34 will be the state in which the seat is [00:03:32] Speaker 00: after the automatic retraction, but prior to the manual locking. [00:03:40] Speaker 00: The question is, the seat, as you see in 34th, does that or does that not meet the claim limitations? [00:03:47] Speaker 00: And that's what we get into. [00:03:49] Speaker 02: So I'm a little confused because I thought your main point was to claim construction was wrong, but now you seem to argue that there's just a tribal issue of fact here. [00:03:57] Speaker 00: Two issues. [00:03:58] Speaker 00: One, the claim construction certainly is wrong. [00:03:59] Speaker 00: And that's my first issue with respect to the issue of when. [00:04:03] Speaker 02: No, OK. [00:04:04] Speaker 02: So I'm not talking about the when. [00:04:05] Speaker 02: So you don't have a claim construction on the automatically returning to the polyadult. [00:04:11] Speaker 00: Both parties agree that automatically retracting, as the district court stated, meant some form of self-acting or self-regulated motion. [00:04:20] Speaker 02: So you agree, I take it then, that in order for Volvos to infringe, it has to, once you push the button, automatically return to the adult seat. [00:04:30] Speaker 00: Not to the adult seat position as defined by Volvo. [00:04:33] Speaker 00: And that's, if you look at figure one, A78 of the patent, you see a deployed and undeployed state. [00:04:41] Speaker 00: We all agree then that whatever the claim limitation is, that that has to meet the claim limitations. [00:04:49] Speaker 00: We do not have the seat locked. [00:04:52] Speaker 00: We do not have the seat flush. [00:04:56] Speaker 00: We do not even have adult seat belts. [00:05:00] Speaker 02: Which gets to the point of- Are you suggesting in figure one, when this is automatically returned to the adult seating position, that the back of the seat, which I think is what you're concentrating on, is not flush with the back of the frame? [00:05:14] Speaker 00: Correct. [00:05:15] Speaker 00: There seems to be, there was a discussion in the briefs with respect to figure 18, and whether or not the right side is flush versus the left side. [00:05:21] Speaker 00: And the fact that as that's retracting, it's coming back up against those child seat belts now that are between it and the back of the frame, and whether or not that seat will always be flush or not. [00:05:30] Speaker 00: If it's not always flush, then this seat wouldn't even be within the scope of the claims. [00:05:39] Speaker 01: So your argument is when the Volvo seat retracts to an intermediate position, that that intermediate position is a fully contoured adult seat? [00:05:48] Speaker 00: It's defined by the parties and the court, yes. [00:05:50] Speaker 00: I wouldn't call it intermediate, but in the retracted position, certainly. [00:05:54] Speaker 00: The question is, in terms of fully contoured adult seat, the definition that the parties have been using is, can it be used by an adult? [00:06:01] Speaker 00: And that's when the brief you saw where people were talking about, can someone sit on it? [00:06:04] Speaker 00: Can someone use the seat belts, et cetera? [00:06:06] Speaker 00: And the answer was yes. [00:06:07] Speaker 03: Well, someone, is there a difference between whether they could sit on it or whether they would sit on it? [00:06:13] Speaker 03: I mean, would you sit on it that way, or wouldn't you wait to sit on it until it was fully pushed down? [00:06:19] Speaker 00: I think indicative of that question is there is nowhere in the Volvo owner's manuals that tell you not to sit on it, to provide a warning, or provide you with any other type of notice not to use a seat in that position. [00:06:31] Speaker 00: contrary to a child seat and to the child positions. [00:06:36] Speaker 00: Tons of warnings. [00:06:37] Speaker 00: Don't use the child seat unless it's locked. [00:06:40] Speaker 00: With respect to the adult seat, no warnings whatsoever. [00:06:43] Speaker 00: So can it be used? [00:06:44] Speaker 00: Absolutely. [00:06:45] Speaker 01: Well, isn't it partially elevated at that point? [00:06:49] Speaker 00: As is the seat in figure one of the patent. [00:06:52] Speaker 01: Yes. [00:06:52] Speaker 01: Yes. [00:06:53] Speaker 01: When you retract the Volvo seat to an intermediate position, doesn't the intermediate position have it still in an elevated [00:06:59] Speaker 01: Our position? [00:07:00] Speaker 00: As shown on page 34 of our brief, there is a portion that can still be elevated. [00:07:05] Speaker 00: But I think that's, if you look at the claims and the actual claim language. [00:07:08] Speaker 01: Why would that be then something that an adult would sit on or use? [00:07:14] Speaker 00: The claim talks about the, because it's still usable, it still can be used. [00:07:18] Speaker 00: The adult portion where the adult places his bottom or her bottom is exposed. [00:07:23] Speaker 01: Is it fully contoured? [00:07:26] Speaker 01: adult seat. [00:07:27] Speaker 00: Claims don't require it to be a fully contoured seat. [00:07:29] Speaker 00: It requires it to be part. [00:07:31] Speaker 00: So the claim is having retracted means for automatically retracting said child safety seat into a portion of said adult seat to form part of a fully contoured adult seat when said child is not located in said child safety seat. [00:07:46] Speaker 00: If you require the second part of that claim to have full complete retraction, you've rendered the first portion meaning [00:07:57] Speaker 00: And that's where I think we need to focus on, not lose sight of the actual claim language, part and portion, not lose sight of the fact that we have two different clauses here. [00:08:08] Speaker 00: We've certainly disputed whether they should all be part of the same means for clause, which we still maintain. [00:08:14] Speaker 00: But nevertheless, there are still two. [00:08:18] Speaker 00: And there is the intermediate, the retracted statement of our sequence. [00:08:21] Speaker 03: What was your argument on the [00:08:23] Speaker 03: automatically retracting said child safety seat into a portion of said adult seat to form part of a fully contoured seat. [00:08:35] Speaker 03: Still, the seat has to be fully contoured, right? [00:08:40] Speaker 00: This seat is. [00:08:43] Speaker 03: But you referred to the Volvo manual, it doesn't look like it's fully contoured. [00:08:49] Speaker 00: I have a fully contoured adult seat that's molded, et cetera. [00:08:52] Speaker 00: I have a child safety seat that's within it. [00:08:54] Speaker 00: And then I have a retraction. [00:08:55] Speaker 00: The issue is, what does the attracting mean? [00:08:57] Speaker 00: What is that spring? [00:08:58] Speaker 00: How far is it pulling it down? [00:08:59] Speaker 02: Let's assume we don't agree with your view of the facts and the way the Volvo seat operates. [00:09:04] Speaker 02: And that when it retracts, it actually is in this intermediate position. [00:09:08] Speaker 02: How is that part of a fully contoured adult seat? [00:09:16] Speaker 00: the definition of a fully contrary adult seat is a seat that can be used by an adult. [00:09:21] Speaker 02: Well, that seems a little broad. [00:09:22] Speaker 02: I mean, that's what we're dealing with at the district court. [00:09:25] Speaker 02: Depending on the size of the adult, they could probably sit on the child seat. [00:09:29] Speaker 02: That clearly doesn't meet the definition. [00:09:31] Speaker 02: I mean, the definition of your claim, the way it's written, seems to suggest somehow you push a button or you do something, the child seat springs back into the adult seat. [00:09:43] Speaker 00: I can, at the end of the day, this is part of the problem of having a markment of issues after a summary judgment is filed. [00:09:49] Speaker 00: Even with respect to the markment, I'm limited by the markment in terms of what the judge did with fully contoured adult seat and can be used. [00:09:58] Speaker 00: To the extent your honor disagrees with that and wants to raise a new issue, that's certainly for your honors to do. [00:10:06] Speaker 00: I would just ask at that point that we be given opportunity, a notice and opportunity to respond. [00:10:13] Speaker 00: I have nothing else per se at this point unless you have any more questions. [00:10:28] Speaker 04: Good morning and may I please record? [00:10:31] Speaker 04: I'll start with the issue of do the Volvo seats automatically retract to form a fully contoured adult seat? [00:10:36] Speaker 04: And here there's no dispute regarding how the products work. [00:10:39] Speaker 04: As the Volvo user manual show, [00:10:41] Speaker 04: Once the seat is put in a raised booster position for them to work, a user must pull the handle and then push it down. [00:10:48] Speaker 04: You can see that. [00:10:49] Speaker 02: Can you talk to me about the picture on page 34 in the blue blue? [00:10:53] Speaker 02: These are the stills from the video. [00:10:55] Speaker 02: I'm not sure the district court even looked at these, but at least on page 34, it looks like this seat is after the button push or whatever is down in the fully adult position. [00:11:09] Speaker 04: Well, the video was shown to the district court. [00:11:11] Speaker 04: They did see it. [00:11:12] Speaker 04: They did have copies of it. [00:11:13] Speaker 04: And here, the key things with the video are first, one, we don't even know that's a Volvo seat. [00:11:18] Speaker 04: We're not even sure that's admissible evidence because they can't identify where they got it from. [00:11:22] Speaker 04: They can't identify the chain of custody. [00:11:24] Speaker 01: Did you argue that below? [00:11:27] Speaker 04: We didn't really get into a motion to preclude it, so we didn't go that far. [00:11:30] Speaker 01: This video was admitted into evidence? [00:11:32] Speaker 04: It wasn't ruled one way or the other. [00:11:34] Speaker 04: It wasn't relied on by the court, but the court didn't rule one way or the other, and I think that's probably because we didn't make a formal motion to exclude it. [00:11:40] Speaker 04: And we didn't because it doesn't matter. [00:11:42] Speaker 04: If you look at page 34 of the blue brief, where they show that video, they've got another, that same picture is on page 36 of the blue brief. [00:11:49] Speaker 04: In page 36 of the blue brief, Lugas admits that that position extends above the adult seat. [00:11:56] Speaker 04: So even in their video, when somebody's pulled the lever and it goes to that position, they admit it extends above so that intermediate booster cushion is raised [00:12:04] Speaker 04: and the sides are lower. [00:12:05] Speaker 04: They also admit several places, like page 12 of their opening reading. [00:12:10] Speaker 01: So the picture on page 36, if you look on the right-hand side, is that the front part of the seat or the back? [00:12:15] Speaker 04: It switched perspectives from page 34. [00:12:21] Speaker 01: Look at page 36. [00:12:28] Speaker 01: On the right-hand side of the seat, is that the front or the back part of the seat? [00:12:33] Speaker 04: On page 36, that would be the front part of the seat. [00:12:41] Speaker 04: And what's important there is it's both raised and extended as they admit, and it's unlocked. [00:12:46] Speaker 04: And they admit that on page 12 of their brief. [00:12:48] Speaker 04: They admit in their complaint at page A110 that it's gotta be further pushed down. [00:12:53] Speaker 04: There's no dispute about that. [00:12:54] Speaker 04: Even if you look at the Connolly Declaration, which describes the video, they talk about after the person pulls lever, they qualify it goes to an initial retracted seat. [00:13:04] Speaker 04: They admit it doesn't have to go all the way down, it's gotta be further pushed down. [00:13:07] Speaker 04: And that's fundamental. [00:13:08] Speaker 04: We heard that the Volvo user manuals don't include warnings. [00:13:12] Speaker 04: That's not true. [00:13:12] Speaker 04: If you look at the joint appendix here, we got A624, A629, and A619. [00:13:20] Speaker 04: Right next to the instructions that show a user must pull the handle and push it down, there is a warning to the right that says follow all instructions. [00:13:28] Speaker 04: And here the instructions are the two instructions of pulling the lever and pushing the seat down. [00:13:36] Speaker 04: So for all those reasons, it does not form a fully contoured adult seat. [00:13:39] Speaker 04: There also has been no construction by the district court. [00:13:42] Speaker 01: Your opponents are arguing that an adult could sit on that anyway, that that is an adult seat. [00:13:50] Speaker 01: Why is that not possible? [00:13:53] Speaker 04: First of all, if an adult sits on it, you don't know if it'll lock or not lock. [00:13:56] Speaker 04: It's got a 53-pound force requirement to lock it. [00:14:00] Speaker 04: And so if an adult sits on it, that's not automatic. [00:14:03] Speaker 04: If an adult has to sit on it to stow it, [00:14:05] Speaker 04: That's just like the hand pushing it down. [00:14:08] Speaker 04: It's manual, not automatic opposites. [00:14:10] Speaker 04: And in fact, if an adult has to sit on it to lock it, that makes the point. [00:14:14] Speaker 04: It's not a fully contoured adult seat, because it still needs that manual pressure. [00:14:18] Speaker 04: And even the 926 patent itself describes, and we talk about this in our red brief at page 33, that downward pressure like that, manual. [00:14:27] Speaker 01: Now, apart from locking it, can an adult sit on that? [00:14:30] Speaker 01: And is that a fully contoured adult seat? [00:14:33] Speaker 04: No. [00:14:33] Speaker 04: It wouldn't be safe. [00:14:34] Speaker 04: As the warning said, you haven't followed the instructions to still unlock the seat. [00:14:38] Speaker 04: It would one, be extended above the sides of the seat, so it wouldn't be fully contoured, and it wouldn't be safe because it wouldn't be secure. [00:14:49] Speaker 03: Mr. Morton, one question. [00:14:51] Speaker 03: We were talking a little bit earlier about the drawings at 32, 34, 36. [00:14:56] Speaker 03: Well, 32 through 34 and 36. [00:15:01] Speaker 03: And we also have the Volvo manual in the appendix. [00:15:06] Speaker 03: Was there discussion at the district court as to the differences between what's shown in the Volvo manual and the drawings from the video? [00:15:18] Speaker 03: No. [00:15:18] Speaker 03: What was the discussion about? [00:15:20] Speaker 03: Everyone agrees the Volvo manual shows the Volvo seat, right? [00:15:25] Speaker 03: There's no question about that. [00:15:26] Speaker 03: I was just trying to want to make sure I understand. [00:15:30] Speaker 03: discussed about what is actually shown in terms of whose seat is in the video. [00:15:36] Speaker 04: The only thing that district court said is he can't even be sure this is a seat because it's been disassembled. [00:15:40] Speaker 04: It's been taken out. [00:15:41] Speaker 04: We don't know who it's from, and you don't know how it's been changed. [00:15:45] Speaker 04: It's obviously been disassembled from the seat. [00:15:47] Speaker 03: So the court was there any discussion when the plaintiff presented the seat? [00:15:54] Speaker 03: I'm sorry, presented the video? [00:15:56] Speaker 03: I'll ask Mr. Fries about that. [00:15:59] Speaker 03: was curious, what discussion took place when this video was offered? [00:16:05] Speaker 04: The court's reaction to it, I can't even tell that's even a seat. [00:16:09] Speaker 04: That was the court's one line reaction to the video. [00:16:12] Speaker 04: But our position is even if the video is admissible and allowed, it cannot possibly meet the definitions of the claim and no reasonable jury could conclude it meets the claim because it's an extended, unlocked [00:16:24] Speaker 04: intermediate booster cushion. [00:16:26] Speaker 04: If it's extended, it's not fully contoured. [00:16:28] Speaker 04: Even Lugas admits at their opening brief at page 28, it's got to be all the way back, all the way into a fully contoured adult seat. [00:16:37] Speaker 04: And if it's elevated, it's not. [00:16:39] Speaker 04: And if it's unlocked, it's not seat. [00:16:41] Speaker 02: What about their argument about their embodiment and that in their embodiment, somebody might have to sit in it to push the back of the seat all the way back? [00:16:51] Speaker 04: there's no support for that at all. [00:16:53] Speaker 04: In fact, that would be contrary to what this patent describes as being automatically retracted into a fully contrary adult seat, and it'd be contrary to the purpose of the invention. [00:17:02] Speaker 04: The whole purpose of the invention here was to not distract the operators of the bus or the operators of the mass transfer vehicle, so when a child left the seat, the seat would automatically go to a position that could be used safely by an adult. [00:17:17] Speaker 02: One issue... Sorry, I just wanted to clarify that because it seems a little fuzzy to me. [00:17:23] Speaker 02: I mean, use safely means when they sit in it, it seems like even if it didn't go all the way back, as they say, the seat belt or something may be tangled or something, if they sit in it, doesn't that push it all the way back? [00:17:38] Speaker 02: And how would that actually differ from the bottom of your seat where if you sat in it, it would go down? [00:17:44] Speaker 04: Because in their seat, when it fully retracts, it is ready to be used by a normal adult in a safe capacity. [00:17:50] Speaker 04: In this seat, when it's still elevated, and when it's in an unlocked position, we know, as the instructions and warnings in the user's manual say, that's not an adult position. [00:18:00] Speaker 04: And just the admission that a human would have to sit on it to maybe lock it proves the point that it would require manual pressure to put it down. [00:18:09] Speaker 01: But isn't that automatic, just sitting on it? [00:18:14] Speaker 04: No, that's manual. [00:18:15] Speaker 04: Just like the hand applies the pressure, somebody sitting on it would be applying the pressure. [00:18:19] Speaker 04: It'd be manually pushing the seat down to lock it into place. [00:18:22] Speaker 04: It would require human intervention. [00:18:25] Speaker 04: The parties agreed on construction of automatically as a self-acting, self-regulating mechanism. [00:18:30] Speaker 01: That takes us to the use of the construction of the word when, right? [00:18:35] Speaker 01: When the district court arrived at. [00:18:37] Speaker 01: What's your view on that? [00:18:39] Speaker 04: When the court was just deciding between two [00:18:42] Speaker 04: competing plain meaning proposals. [00:18:44] Speaker 04: And in this case, the plain meaning, as the district court relied on, the district court went with ours and cited Webster's dictionary, consistent with earlier court precedent on that same term at page 40 of the red brief. [00:18:57] Speaker 04: With that, you've got the claim language really compels this conclusion, because it says the seat automatically retracts when a child's not located in the seat, when is used to qualify automatically retracting. [00:19:09] Speaker 04: Even if you look at the parties agreed on definition of automatically, it's a self-acting, self-regulating mechanism that performs a required act at a predetermined point. [00:19:20] Speaker 04: That was agreed on by the parties. [00:19:22] Speaker 04: The predetermined point here is when the child's not located in the seat. [00:19:26] Speaker 04: And the prosecution history is very important here because claims one and two of the patent were originally rejected, but claim nine was allowed. [00:19:35] Speaker 04: And claim nine only added the limitation [00:19:38] Speaker 04: when a child's not located in the seat. [00:19:40] Speaker 04: And so when faced with the sticks in prior art, the court realized that one and two were invalid, but it claimed nine would be allowable if rewritten in independent form. [00:19:51] Speaker 04: And that's what the applicant did in that situation. [00:19:53] Speaker 04: But since Stigson shows something where somebody presses a button and pushes it down, that means Volvo's construction must be correct, because it's the only one that would make Stigson different. [00:20:04] Speaker 04: Because if Stigson [00:20:06] Speaker 04: Stixon doesn't show a seat that automatically attacks at the instant or at the moment that somebody presses the button. [00:20:12] Speaker 04: But if it meant, as Lucas proposes, at any time during which a child's not in the seat, Stixon would show that because the child can get out of the seat, somebody can press the button and push it down. [00:20:24] Speaker 04: So that claim nine wouldn't have been any different than claims one and two. [00:20:29] Speaker 02: You don't need to win on that argument though, do you? [00:20:31] Speaker 02: I mean, if we agree with you on it automatically retracting [00:20:36] Speaker 02: form a fully contoured adult seed. [00:20:40] Speaker 02: That's enough to support the summary judgment in your favor. [00:20:42] Speaker 02: Correct. [00:20:43] Speaker 02: We can win on either basis. [00:20:45] Speaker 03: So let me just ask you again, going back to the pictures from the video, specifically at 33 and 34, I assume, Samuel, you've seen the video, right? [00:20:55] Speaker 03: Correct. [00:20:56] Speaker 03: Okay. [00:20:57] Speaker 03: Looking at 33 and then looking at 34, what is any, and I realize there's some dispute, [00:21:05] Speaker 03: about this video, but looking at 33 and 34, what had to be done, if anything, by way of, we'll say, human intervention or non-automatic intervention to get the seat from where it is in 33 to where it is in the picture on 34? [00:21:22] Speaker 04: The user, and we don't think that's critical to our position, because we think even from the position it did in 34, it requires manual [00:21:31] Speaker 04: pressure to push it down. [00:21:33] Speaker 03: You're saying in 34 it should still be pushed down further. [00:21:36] Speaker 04: It must be. [00:21:37] Speaker 04: They admit on page 36 that it's elevated and unlocked. [00:21:42] Speaker 03: If you recall, what if anything, because I confess, I haven't looked at the video, I've just seen the pictures in the briefs, so what if anything had to be done by way of non-automatic intervention, by way of human intervention to get from where we are in 33 to where we are in 34? [00:22:00] Speaker 04: The user had to pull the handle. [00:22:01] Speaker 04: If you watched the video too, it's fairly interesting, because the person pulled the handle very hard and pulled it forward pretty hard. [00:22:09] Speaker 04: You're not even sure, you wonder why the seat's removed, if they could have done that in the space of a car, because the person pulled the seat forward very aggressively. [00:22:16] Speaker 03: So you're saying that if I look at this picture in 33, I see an arm reaching towards part of the seat, and you're saying that what happened next was, which I don't see here, to get to 34 was that [00:22:29] Speaker 03: hand and arm pulled the seat. [00:22:32] Speaker 04: Correct. [00:22:32] Speaker 04: When they pulled the handle, they also pulled the seat to make it one for us. [00:22:36] Speaker 04: But again, you know, we could debate that. [00:22:38] Speaker 04: We think that- No, I understand. [00:22:39] Speaker 04: I was just trying to understand this video here. [00:22:45] Speaker 04: And just one point I would like to address because it was raised in the reply brief for the first time is in the reply brief on page two, Lucas makes the point that they never got discovery on infringement. [00:22:57] Speaker 04: That's simply not correct. [00:22:58] Speaker 04: First, they're raising it in the report for the first time, so it's waived. [00:23:02] Speaker 04: But second, if you read the district court's summary judgment order at page A65, Lue gets conceded it had all the discovery it needed for model years 2005 through 2013. [00:23:13] Speaker 04: If you look at the declaration from Mr. Fweese, which was at A886, he admits they had the discovery from 2005 to 2013, and that timeframe from the cars makes sense. [00:23:27] Speaker 04: because the case was filed in 2012, and so at that point, going six years forward, took it to 2005, and the cases that were in existence at that time were 2012 and 2013. [00:23:37] Speaker 04: The only discovery issue that was even raised below was some discovery regarding 2014 and 2015 models, and there, they submitted a declaration, but the court found they did not comply with the Third Circuit requirements under Rule 56, and those are laid out in the Dowling case versus the City of Philadelphia, [00:23:57] Speaker 04: at 855, Fed 2nd, 136, Pinpoint Site 139, Third Circuit 1988. [00:24:07] Speaker 04: And you can also see it in the district court's order, the summary judgment order at page A64 and A65, where it said they didn't comply with these requirements. [00:24:17] Speaker 04: And there's a reason that they couldn't comply with those requirements, because as the Isaacton Declaration shows on page A794, [00:24:27] Speaker 04: The seats operated in 2014 and 2015 the same way they did in all the years before. [00:24:32] Speaker 04: And in any event, that discovery was publicly available. [00:24:36] Speaker 01: Okay. [00:24:36] Speaker 01: All right. [00:24:41] Speaker ?: Thank you. [00:24:41] Speaker 00: Thank you. [00:24:42] Speaker 01: Your honor. [00:24:43] Speaker 01: Please, I'll restore you back to seven minutes. [00:24:45] Speaker 00: Okay. [00:24:45] Speaker 00: Thank you very much, your honor. [00:24:48] Speaker 00: With respect to the video and the seats shown in the video, your honor will see the video. [00:24:53] Speaker 00: It's a pulling of the latch, removing of the hand, so it does not get [00:24:57] Speaker 00: essentially smacked by the seat, which is spring-loaded to come down. [00:25:01] Speaker 00: Volvo is never denied. [00:25:03] Speaker 00: Basically, Lugas is the only one with evidence with respect to the internals of the Volvo seat. [00:25:08] Speaker 03: There's apparently some difference of opinion as to the origin of this video. [00:25:15] Speaker 03: Where did Lugas obtain it and what did Lugas say to the district court when it put it into [00:25:24] Speaker 03: the record for purposes of the summary judgment proceedings? [00:25:28] Speaker 00: So what we used was, it's A879 and A80. [00:25:32] Speaker 00: We realized that the provenance of the seat was going to be an issue. [00:25:36] Speaker 00: We're simply, we're buying a seat that's been on the secondary market. [00:25:39] Speaker 00: Could it have been modified? [00:25:41] Speaker 00: Certainly. [00:25:42] Speaker 00: We don't know. [00:25:43] Speaker 00: So what Lubas's president, Mr. Connolly, did was not only analyze the seat, take the video, but then go to the Volvo dealership [00:25:53] Speaker 00: work with the Volvo seat at a Volvo dealership. [00:25:56] Speaker 00: We could not buy a car, nor could we rely upon a seat in the car and then deal with spoliation issues, et cetera. [00:26:04] Speaker 00: We did ask for a seat during discovery. [00:26:05] Speaker 00: We didn't get one. [00:26:07] Speaker 00: How the Volvo seat works on appeal should not be an issue. [00:26:10] Speaker 03: That's a fact. [00:26:11] Speaker 03: No, I'm sorry. [00:26:11] Speaker 03: When you say it was purchased from a vendor, who was the vendor? [00:26:16] Speaker 03: I don't know offhand, Your Honor. [00:26:17] Speaker 03: I mean, was it a secondhand car dealer? [00:26:20] Speaker 03: Was it someone related to Volvo? [00:26:22] Speaker 00: I don't know, Your Honor, which is why we had Mr. Connelly go to the dealership, look at the XC90, and basically confirm that what's shown in the video is essentially representative of how the seat actually works as installed in the Volvo XC90 car. [00:26:37] Speaker 01: At the end of the day, there was no objection or no argument as to the video itself. [00:26:42] Speaker 00: Correct, Your Honor, and it was not addressed by the district court, nor did the district court make any mention whatsoever on non-infringement, whether the seat in a retracted state prior to lock-in [00:26:52] Speaker 00: did or did not meet the claims as properly interpreted. [00:26:56] Speaker 03: So what the district court was told about the video and what's shown is basically what's in the declaration at age 79 through 881? [00:27:07] Speaker 00: The district court certainly saw the video. [00:27:09] Speaker 00: Saw the video multiple times during the markedly hearing as well as when it was presented as part of the summary judgment motion. [00:27:18] Speaker 00: That's where I get to, which I believe was the district court's confusion, where the district court believed that at A-70, where the district court says the user must manually press the Volvo seat button from the elevated child position into the adult position. [00:27:33] Speaker 00: The district court believed that manual intervention was needed for that entire motion all the way down into a locked position, which is not the case. [00:27:42] Speaker 00: There is automatic retraction after pushing of the button. [00:27:45] Speaker 01: So when you push the button, it retracts [00:27:48] Speaker 01: Are you saying that it goes all the way down to its final position? [00:27:51] Speaker 01: There's no intermediate step? [00:27:53] Speaker 01: There's a spring that takes it down into a retracted position where it sits as a page. [00:27:58] Speaker 01: But then at that point, it's still in an elevated position or somewhat of an elevated position, right? [00:28:04] Speaker 01: Correct, Your Honor. [00:28:05] Speaker 01: So to get it down flush, you have to push down on it? [00:28:09] Speaker 00: If you want it completely flush to sit on, yes, Your Honor. [00:28:12] Speaker 01: So if you're a big adult and you want to sit without your legs being elevated, [00:28:18] Speaker 01: You'd have to push it down. [00:28:19] Speaker 01: Or sit on it. [00:28:21] Speaker 01: That would be a two-step process, right? [00:28:24] Speaker 01: You'd have to retract it, and then you'd have to push down in order to have a flush seat. [00:28:30] Speaker 00: Country, if I was a 50-pound adult and didn't weigh enough to meet the threshold to lock the seat, I would be sitting on it in an unlocked position. [00:28:38] Speaker 01: So if the adult just sits on it and uses the weight to lock it, isn't that still the completion of an additional step to get the seat flush? [00:28:48] Speaker 00: Yes, but it's a comprising claim. [00:28:50] Speaker 00: It's not a method claim, first of all. [00:28:52] Speaker 00: It's an apparatus. [00:28:54] Speaker 01: But wouldn't that kind of show that it's not at a fully adult configuration at that point? [00:29:01] Speaker 01: You have to do something else. [00:29:02] Speaker 01: Something else has to happen in order to get the seat flushed down so that an adult can sit on it. [00:29:08] Speaker 00: I don't believe there's any debate that an adult can sit on the seat as retracted. [00:29:13] Speaker 00: What we hear in terms of why they can't, safe, [00:29:16] Speaker 00: insecure and other factual issues that have never been raised before that were not addressed in the district court and are just purely attorney argument. [00:29:25] Speaker 00: If I, if I'm a adult over a hundred pounds and I sit on the seat, it will lock on them, you know, it will click and lock. [00:29:30] Speaker 00: If I'm adult, if I put my child on it who's 50 pounds, it's not going to lock. [00:29:35] Speaker 00: I can still use the seat, but the portion that's underneath their thighs won't be locked. [00:29:42] Speaker 00: It's still usable. [00:29:43] Speaker 00: And there's nothing in the Volvo manual that tells you not to use it. [00:29:46] Speaker 01: I guess the question is, it hasn't automatically retracted, I mean, to that adult position. [00:29:52] Speaker 01: Something else has to happen. [00:29:56] Speaker 00: This gets back to the definition that's applied to the fully contrary adult seat and the district court applied can be used, which is why we get into the safe, secure, et cetera, that we hear from Bulba. [00:30:06] Speaker 00: How the manner of operation of the seat, not to a specific point. [00:30:10] Speaker 00: And that's where I get back to figure one of the patent that also shows retractions. [00:30:14] Speaker 00: and whether or not figure one gets read out because figure one may not retract every time. [00:30:18] Speaker 00: And if I have a seat that retracts sometimes but not other times, does that preclude infringement totally? [00:30:24] Speaker 00: Or just means that I have infringement when the seat's used by a 50 pound individual or when I have someone who enjoys sitting on it in that state as opposed to someone who doesn't? [00:30:33] Speaker 01: So far we've been talking about the retraction and the height of the seat. [00:30:39] Speaker 01: What about the back of the seat and the precluding side [00:30:45] Speaker 00: Figure one, that does show a protruding side, which would indicate I don't have to have a completely flushed seat to have a fully contoured adult seat. [00:30:56] Speaker 00: That would certainly support Lugas's position with respect to that portion of the claim. [00:31:06] Speaker 00: Briefly, with respect to may only, if the court would like to hear about only, otherwise I am. [00:31:10] Speaker 00: We still have 39 seconds left. [00:31:12] Speaker 00: Okay, with respect to only, I just wanted to point out that column three lines 60 through 66, in terms of how the patent describes the retraction, describes the pressure being applied to the seat. [00:31:26] Speaker 00: The source of the pressure is not limited to that of a child. [00:31:29] Speaker 00: The way the district court read the claim to require only, that only the child can provide the source of the pressure, [00:31:35] Speaker 00: would preclude me from pulling a seat down and letting it go. [00:31:38] Speaker 00: If a seat automatically retracts simply because I'd let it go halfway through the process under the district court, that would not be within the scope of the claims. [00:31:46] Speaker 00: And that clearly reads out the majority of the pattern. [00:31:50] Speaker 00: It cannot be correct. [00:31:51] Speaker 00: OK. [00:31:52] Speaker 00: Thank you. [00:31:52] Speaker 00: Thank you.