[00:00:08] Speaker 01: We will hear argument next in number 1400, Medtrica Solutions against Cygnus Medical. [00:01:05] Speaker 01: Mr. Lieberger? [00:01:08] Speaker 01: Lieberger. [00:01:08] Speaker 01: Thank you. [00:01:15] Speaker 02: Good morning. [00:01:16] Speaker 02: Ben Lieberger here on behalf of Cygnus Medical. [00:01:19] Speaker 02: We submit that the district court erred in construing the term weak in line in the claim for the other 23 patents and in finding non-infringement on summary judgment. [00:01:27] Speaker 02: Now the district court construed the weak in line to be a physical identifiable segment of material that is less strong than surrounding material. [00:01:34] Speaker 02: We submit the district court did not give this term its plain and ordinary meaning as required by Phillips. [00:01:40] Speaker 02: The Pellies and parties agreed that the weakened line was given no special definition in the patent. [00:01:45] Speaker 02: The technology is simple and the words involved are common as admitted by the Pellie. [00:01:49] Speaker 02: Now if you look at the words and the claims in the patent, the claims require a portion adapted to be opened comprising a weakened line. [00:01:56] Speaker 02: The specification describes how this portion adapted to be opened [00:01:59] Speaker 02: may comprise a line of weakness that extends laterally across both sidewalls in proximity to the top peripheral seal. [00:02:07] Speaker 01: Can I ask this? [00:02:08] Speaker 01: It seems to me that there are at least, before you know anything else within the context of the patent, two conceivable ways of thinking about the weakened line. [00:02:21] Speaker 01: One is that there is an actual difference in the physical property of the material running in some sort of one-dimensional direction. [00:02:30] Speaker 01: which I think is roughly what the district court said, although oddly enough didn't say anything about one dimensionality at all. [00:02:39] Speaker 01: The other is something I gather that you say that the same exertion of force should produce a tear along this line. [00:02:53] Speaker 01: And that's what the notch does. [00:02:58] Speaker 01: As a matter of meaning wholly outside the context of the patent, let's assume that there are two different ways of looking at it. [00:03:08] Speaker 01: Why, though, doesn't the specification make absolutely clear that the inventor here was describing notches as something quite distinct from whatever was going on between the notches, namely the weakened line? [00:03:26] Speaker 01: And why doesn't that resolve the matter in favor of what the district court said, putting aside the aspects of one dimensionality, which can't possibly help you? [00:03:36] Speaker 02: Well, I think it is resolved in the patent. [00:03:39] Speaker 02: I mean, we give specific examples of what this could be. [00:03:42] Speaker 02: It could be scoring, could be perforations, could be notches. [00:03:45] Speaker 02: And I think what appellees are trying to say is the material itself has to be weakened in some way. [00:03:50] Speaker 02: And I think if you look at those examples, it's really showing that that's not necessarily the case. [00:03:54] Speaker 02: A perforation and notch. [00:03:56] Speaker 02: really function the same way. [00:03:57] Speaker 02: They just put a hole in the material that, as Appellee discussed, create a stress concentration. [00:04:03] Speaker 01: They may both achieve greater ease of opening, but I don't see how that takes away from the apparent implication of the specification to distinguish the weakened line from notches on one or both ends of [00:04:25] Speaker 01: of the front and back service. [00:04:29] Speaker 02: Well, yeah, I think the weakened line can include any of those. [00:04:33] Speaker 02: I don't think notches was supposed to be something separate. [00:04:35] Speaker 02: I mean, I think, you know, anything that allows you to use less force in opening this. [00:04:40] Speaker 01: I mean, these specification passages talk about a weakened line plus notches or without notches. [00:04:48] Speaker 01: Why doesn't that discussion distinguish the two so that notches alone [00:04:54] Speaker 01: do not create a weakened line, even though they enable tearing with the same exertion of force that might not work without notch. [00:05:06] Speaker 02: Well, I think it's discussed in two sections of the specification. [00:05:09] Speaker 02: I think it says in one portion, it may also include notches. [00:05:12] Speaker 02: And in one other section, it just said it preferably includes notches. [00:05:15] Speaker 02: So I still believe that that could be a separate embodiment. [00:05:19] Speaker 02: I mean, anything that allows you to get through these rigid sidewalls [00:05:24] Speaker 02: with exerting less force than it would require. [00:05:27] Speaker 02: As the declaration we submit said, you cannot tear through the sidewall with your hands alone. [00:05:32] Speaker 02: So whether it's a weakened line by scoring or a notch, there's something there that allows you to tear in a linear fashion across the top. [00:05:39] Speaker 02: And there's nothing in the specification that, even with these examples, it shouldn't be limited just to those. [00:05:44] Speaker 02: I think the claim is broad enough to cover any way of tearing along the top portion of the pouch in a linear fashion. [00:05:52] Speaker 02: I think one point you [00:05:55] Speaker 02: you raise was with the court's construction here in other areas, the court only provides a segment of material. [00:06:02] Speaker 02: And they've written the linear element out of the construction entirely. [00:06:06] Speaker 01: Right. [00:06:07] Speaker 01: But that's an argument that it was too broad. [00:06:09] Speaker 01: And you don't gain anything by arguing for a narrowing of the construction, right, to that everything the district court said would be OK if only the district court had also said that segment has [00:06:25] Speaker 01: be one-dimensional. [00:06:27] Speaker 02: Right, but I think for the purpose of our patent and indolidity challenges later, I mean, we don't want this to potentially cover the embodiments that were also in the stack that weren't included, such as a whole, you know, arguably with a segment of material that's not linear. [00:06:43] Speaker 02: Someone could make an argument that this covers a whole and not a linear tear line. [00:06:53] Speaker 02: We believe the district court also erred in requiring that this line be physical and identifiable. [00:06:57] Speaker 02: And I think it's clear in the claim construction order that by physical and identifiable, the court said that Cygnus limited its invention to a pouch with a visible weakened line. [00:07:07] Speaker 02: And there's really nothing in the specification or anywhere in the intrinsic record that imposes this requirement. [00:07:13] Speaker 02: In fact, as we pointed out in our brief, if you look at Figure 1, which shows the weakened line, it's shown as a dashed line. [00:07:20] Speaker 02: in the manual patent procedure actually says that a dashed line is a hidden line. [00:07:24] Speaker 02: Therefore, it does not need to be visible and there's nothing else in the record to the contrary. [00:07:28] Speaker 01: Am I remembering right that the references to visible or discernible did not play a role in the determination of non-infringement? [00:07:39] Speaker 01: That was part of the claim construction, but that was no part of the reason the district court gave for saying these accused products are outside [00:07:48] Speaker 02: That's correct, yes. [00:07:49] Speaker 02: The district court found that their notches were physically identifiable. [00:07:54] Speaker 02: Now we submit the district court also erred in finding non-infringement. [00:07:57] Speaker 02: There was genuine issues and material facts with respect to literal and stockroom equivalents. [00:08:04] Speaker 02: We submit that in construing the claims incorrectly, that influenced the decision on non-infringement, so therefore on that basis alone it should be [00:08:12] Speaker 02: vacated. [00:08:13] Speaker 02: However, even under the court's construction, we believe a reasonable jury could have found infringement both literally and under doctor of equivalence. [00:08:20] Speaker 01: What's your answer to the prosecution history estoppel point or the Johnson and Johnson point, which in this case I think amount to the same thing, which is there's an estoppel by amendment. [00:08:37] Speaker 01: The presumption under FESTO is that everything that was [00:08:41] Speaker 01: covered before the amendment is surrendered with the amendment in the absence of some special reason that you really couldn't have reasonably anticipated this example. [00:08:57] Speaker 01: And the specification makes it perfectly clear not only could you have, but you did because it talks about notches. [00:09:04] Speaker 02: Right. [00:09:04] Speaker 02: Well, I think in claiming a weakened line, that was intended to include notches. [00:09:08] Speaker 02: So I don't think we were giving up on notches. [00:09:11] Speaker 01: Right. [00:09:11] Speaker 01: But this is an argument that takes as an assumption, as you said, that the district court was right about its claim construction. [00:09:18] Speaker 02: Right. [00:09:18] Speaker 01: OK. [00:09:18] Speaker 01: So let's keep that fixed. [00:09:22] Speaker 02: OK. [00:09:22] Speaker 02: Well, I think with respect to the arguments of revitiation and prosecution history estoppel, I think with respect to estoppel specifically, if you look at the file history, the weakened line was already in one of the asserted independent claims. [00:09:37] Speaker 02: It was originally an independent claim 13. [00:09:39] Speaker 02: which became 10 upon issuance. [00:09:42] Speaker 02: So this was already in the claims. [00:09:44] Speaker 02: It was not added to claim 10. [00:09:45] Speaker 02: The only element that was added to every claim was that the pouch was adapted to stand upright. [00:09:51] Speaker 02: So that was added to every claim. [00:09:53] Speaker 02: Claim one week in line was added to it, but it essentially made claims one and 10 have the same scope. [00:10:00] Speaker 02: So I think for that reason, this is not [00:10:05] Speaker 02: was not something that was added by amendment. [00:10:06] Speaker 02: And if you look at the prosecution history, the real argument was that the combination of elements was not obvious. [00:10:12] Speaker 02: There was no motivation or reason to combine. [00:10:15] Speaker 02: So although we discussed the weak in line element, I think the real arguments were about the combination. [00:10:20] Speaker 02: And we already had that element in there. [00:10:24] Speaker 02: And then with respect to vitiation, I mean, the court indicated that we were trying to cover anything, any form of a pouch that is adapted to be open. [00:10:32] Speaker 02: And that's simply not the case. [00:10:35] Speaker 02: trying to make an equivalence argument based on this tear line, this linear element in the accused product. [00:10:40] Speaker 02: And we were not trying to expand the scope of the claims to cover any pouch adapted to be open. [00:10:46] Speaker 02: For example, we weren't trying to cover round straw openings in a juice box, as was discussed in the file history and the specification. [00:10:57] Speaker 02: Now, with respect to the no evidence argument, we believe there was sufficient evidence in the record to at least raise a genuine issue of material fact. [00:11:04] Speaker 02: And those were the product itself, which was cited in both parties' briefs. [00:11:10] Speaker 01: A genuine issue of material fact on what? [00:11:14] Speaker 02: With respect to non-infringement, both literal and doctrinal equivalents. [00:11:18] Speaker 02: And also, Appellee's own admissions throughout the briefs and expert report, as well as the declaration and documentary evidence submitted by Cygnus. [00:11:27] Speaker 02: Now for literal infringement, we had the product itself, which we think alone was enough to defeat summary judgment. [00:11:32] Speaker 02: The only issue here, they had admitted to every other claim in the patent except for weak in line. [00:11:38] Speaker 02: And the court had already found that the notches were physically identifiable. [00:11:42] Speaker 02: So the only issue left was whether there was a segment of material that was less strong. [00:11:46] Speaker 02: So we believe, given the product, which was in evidence, a reasonable juror could have compared the claims to the product and simply put, [00:11:55] Speaker 02: tearing along that line and realizing that it was easier to tear along the notches could have made the conclusion that it was less strong than surrounding material. [00:12:03] Speaker 02: And that, taken together with the Pelley's admissions, it's throughout their briefs and in their expert report that their notches reduced the amount of force necessary to tear open the pouch. [00:12:14] Speaker 02: And we think that raises a genuine issue of material fact on whether this pouch is weakened. [00:12:20] Speaker 02: Further, we had an inventor declaration, which was not [00:12:22] Speaker 02: considered by the court. [00:12:24] Speaker 02: We believe it was disregarded improperly. [00:12:26] Speaker 02: But the inventor reviewed the pouches and described how the pouches opened and indicated that he could not tear where there weren't notches. [00:12:36] Speaker 02: And when he wanted to open it, he had to tear between the two notches across the top along a weakened line. [00:12:45] Speaker 02: We believe the evidence also supports stockroom equivalence. [00:12:49] Speaker 02: the notches perform the same function which is to facilitate opening the pouch in the same way by creating a linear tear line and has the same result by opening the pouch. [00:12:58] Speaker 02: It's like the same function, the appellee's admitted, even in a brief. [00:13:03] Speaker 01: Most equivalence claims stand or fall on the way element since function and results are awfully similar and you'd hardly be in the game if you didn't have those. [00:13:17] Speaker 01: How is it that these [00:13:20] Speaker 01: that there's sufficient testimony that this was in the same way. [00:13:24] Speaker 01: One is an actual physical difference in the material sitting between the ends and the other is a technique that allows the same exertion of force to achieve what without the notches it would not achieve. [00:13:43] Speaker 02: Right, well I think function and way were found by the district court and there's admissions from appellees on those. [00:13:49] Speaker 02: We believe at least that the Sweeney Declaration supports this, where he found in his manipulation of the use of the product that it was weakened along the line between the two notches, and he was unable to completely separate the top portion without tearing the package between both notches, meaning the area between those two. [00:14:08] Speaker 02: We think that is evidence of the way. [00:14:11] Speaker 01: You have only two minutes left of your rebuttal time. [00:14:15] Speaker 01: Perhaps you want to save it. [00:14:20] Speaker 01: Mr. Berman. [00:14:32] Speaker 00: Good morning, Your Honors. [00:14:36] Speaker 00: There are two issues principally before the court. [00:14:40] Speaker 00: One is claim construction. [00:14:41] Speaker 00: The other is summary judgment of non-infringement. [00:14:45] Speaker 00: Both of them are denogable. [00:14:48] Speaker 00: Your Honor was correct. [00:14:50] Speaker 00: in taking a look at the way that the claim was constructed. [00:14:53] Speaker 00: The language of the claim itself says weakened line. [00:14:57] Speaker 00: Weakened line has meaning to it. [00:14:59] Speaker 00: It's a noun modified by an adjective. [00:15:02] Speaker 00: So there has to be a line in the package that is weakened. [00:15:06] Speaker 00: The specification makes very clear, as your Honor pointed out, that there's a difference between notches and the weakened line. [00:15:14] Speaker 00: So it's clear from [00:15:16] Speaker 00: simply the intrinsic evidence by taking a look at the specifications and the claims themselves that we can line is different from the notches. [00:15:25] Speaker 00: Prosecution history is spot on. [00:15:31] Speaker 01: What about his point about claim 10, or I guess claim 13 originally, which became claim 10, I think in the issued patent, always have this element in it? [00:15:43] Speaker 00: Claim 10 had the broad language adapted to be open [00:15:46] Speaker 00: And it was later on amended because of two references. [00:15:49] Speaker 00: It was amended because of the cops. [00:15:50] Speaker 01: Was there some original claim that had a weakened line limitation that was added to claim one or some variant of that? [00:16:02] Speaker 00: Not to my knowledge. [00:16:05] Speaker 00: And irrespective of that, we have to look at the prosecution history based upon its public notice. [00:16:11] Speaker 00: And if you look at the prosecution history where the [00:16:16] Speaker 00: Patentee distinguished the Cox and the Dennis references. [00:16:21] Speaker 00: The claim was amended to include the weak in line limitation and the patentee specifically pointed out to the Patent Office that weak in line was amended to distinguish over the Dennis reference. [00:16:36] Speaker 00: The Dennis reference as you might recall was a juice bag that had a singular opening in there that was franged [00:16:43] Speaker 00: and the claim was amended to specifically include the week in line. [00:16:48] Speaker 00: This is consistent with the specifications, where the specifications spoke of a variety of different ways to adapt the package to facilitate opening, one being a hole, one being a week in line, the other just being the baggie, where you resealable and unresealable top seals. [00:17:07] Speaker 00: And the claim was specifically amended and added. [00:17:11] Speaker 00: distinguished over those references. [00:17:15] Speaker 00: In addition to the intrinsic evidence, and in fact, there's never in the prosecution history, never in the specification does the patentee ever either point out a specification or discuss during the file history that notches alone could meet the week in line limitation. [00:17:33] Speaker 00: Certainly had the opportunity to do so, but it didn't. [00:17:36] Speaker 00: Never mentioned it, never said it. [00:17:37] Speaker 00: It's an afterthought. [00:17:39] Speaker 00: In addition to the intrinsic evidence, which the judge relied upon, the extrinsic evidence, which is consistent with that definition, including the dictionary definitions, as well as the testimony of Dr. Singh, uncontroverted, unrebutted, also is consistent with, we can mine, having specific definition. [00:18:04] Speaker 01: If we were to look at extrinsic evidence and put aside for one minute whether [00:18:08] Speaker 01: particular extrinsic evidence like websites were reliable or proper. [00:18:17] Speaker 01: And also, if we were to disregard the specification for a minute, because we are talking about extrinsic evidence, why is it not at least one reasonable way of talking to say that the [00:18:37] Speaker 01: portion of the package between two notches is weaker than it would be without the notches because a human being applying exactly the same force, exerting the same force, will be able to tear one but not the other because the notches concentrate the identical exertion of force. [00:19:01] Speaker 00: I'll follow your question. [00:19:02] Speaker 00: The problem with [00:19:04] Speaker 00: that hypothetical situation is it places, it misplaces where the notches are. [00:19:11] Speaker 00: If the notches are in the sidewalls of the pouch, the weaken line must be in the front and back walls of the pouch. [00:19:19] Speaker 00: So if you're only looking at the notches where the sidewall, the weaken line has to be in the front or back sidewall panels, not outside the sidewall panels. [00:19:30] Speaker 01: I'm sorry, doesn't the force [00:19:33] Speaker 01: that is concentrated at the tip of the notch in the sidewall as you start to exert it, propagate as the sidewall merges into the two front and back walls. [00:19:51] Speaker 01: I think I do that all the time when I open suit packages. [00:19:54] Speaker 00: No doubt. [00:19:55] Speaker 00: When you concentrate the stress in that notch and there's a tear that propagates along [00:20:02] Speaker 00: the front and back sidewall panels, but those back sidewall panels are not weakened. [00:20:07] Speaker 00: The claim calls for there to be a weakened line. [00:20:11] Speaker 00: It's not the tear line that propagates along. [00:20:14] Speaker 00: And again, you're speaking, ignoring the specification, which is completely contrary to that, and the extrinsic evidence that we have. [00:20:25] Speaker 00: So I think under any [00:20:28] Speaker 00: Let me reach the issue of identifiable. [00:20:31] Speaker 00: First, invisible. [00:20:32] Speaker 00: Visible was, the court mentioned it in its order, but again, this is a de novo review. [00:20:39] Speaker 00: And in applying the evidence to the issue of summary judgment, visibility wasn't considered. [00:20:45] Speaker 00: With respect to identifiable, the weekend informed that it's identifiable. [00:20:53] Speaker 00: So unless you have a bag that has no notches, how are you going to tell? [00:20:58] Speaker 00: there is a weakened line or not, has to be identified. [00:21:01] Speaker 00: And with respect to the physical segment issue, I think the court is correct. [00:21:07] Speaker 01: But I'm sorry, you could tell if there was a notch and there's nothing in the specification, or let me say it more affirmatively, the specification affirmatively describes adding notches to a weakened line, to put it in terms favorable to you. [00:21:24] Speaker 00: I'm sorry, I missed the question. [00:21:27] Speaker 00: The specification certainly distinguishes between notches and a weakened line. [00:21:32] Speaker 01: So you're saying that the specification covers a pouch that has a weakened line but no notches? [00:21:42] Speaker 00: Yes, the specification is absolutely clear on that. [00:21:44] Speaker 00: This is what preferably terminates and it doesn't have to happen. [00:21:47] Speaker 01: And that wouldn't be usable if you couldn't see it? [00:21:51] Speaker 01: You don't have to see it. [00:21:52] Speaker 01: It has to be identifiable. [00:21:54] Speaker 01: or feel it. [00:21:56] Speaker 00: Well, you might not necessarily be able to feel it. [00:22:01] Speaker 00: The fibers in the plastic could be disrupted by a laser, for example, and so that as you tear it, because the line is weak, it helps guide the tear along. [00:22:11] Speaker 00: So identifiable is not necessarily through your senses. [00:22:15] Speaker 00: It could be microscopically identifiable, but it has to be. [00:22:18] Speaker 01: But that would have nothing to do with whether it was [00:22:22] Speaker 01: would it be usable by the user or everybody's going to tear it at the top anyway? [00:22:29] Speaker 00: Probably. [00:22:35] Speaker 00: Perforation argument. [00:22:37] Speaker 00: It's a segment of material. [00:22:39] Speaker 00: So once in the segment of material there are perforations, whether they pass through or not, that segment of material forms a weak in line. [00:22:50] Speaker 00: Scoring is not [00:22:52] Speaker 00: When you score something, it doesn't have to go all the way through. [00:22:54] Speaker 00: And in fact, perforations don't have to go all the way through. [00:22:57] Speaker 00: They could be shallow. [00:22:58] Speaker 00: In fact, the one point that the specification makes, and in fact, Mr. Sweeney makes, is that if the bag was perforated all the way through, it would be decontaminated of the bag. [00:23:11] Speaker 00: So when they're talking about perforations in lining, it's shallow perforations in lining. [00:23:16] Speaker 00: A person of ordinary skill in the art would recognize that. [00:23:22] Speaker 00: summary judgment, there simply is, under any claim construction that's a reasonable claim construction based upon the record, there's simply no evidence that would support not finding... By the way, do you agree that the district court mistakenly omitted some reference to one dimensionality in its claim construction? [00:23:50] Speaker 01: When I read the district course of claim construction, the notion of line does not come to mind because there's nothing in there about one dimensionality or linearity or the shape of the area that is weakened. [00:24:10] Speaker 00: Yeah, you're correct. [00:24:13] Speaker 00: When I say mistake, I want to clarify that because in the construction that Metrica [00:24:20] Speaker 00: offered, we offered it's a long linear line. [00:24:25] Speaker 01: And the judge... A long linear line? [00:24:29] Speaker 00: A long stroke, a stroke with a pen or an instrument that was linear long. [00:24:36] Speaker 00: The court, in its own good knowledge, decided not to add that as a limitation of claim. [00:24:41] Speaker 00: And correct, it's a little bit more helpful to the defendant in the long run. [00:24:48] Speaker 00: But in our case, it's a physical segment of jail. [00:24:50] Speaker 00: Whether it was linear or not, we believe that the specification calls for it to be linear. [00:24:57] Speaker 00: There is no other explanation set forth in the specification of the prosecution history or any other evidence that suggests that it's not linear. [00:25:07] Speaker 00: But I imagine, Your Honor, it could be inundating. [00:25:10] Speaker 01: That's why I kept talking about it as one dimensional, at least locally. [00:25:18] Speaker 00: Yeah, I mean, as I said, it could be that way. [00:25:21] Speaker 00: I don't believe that the specification... Instead of a straight line. [00:25:23] Speaker 00: Instead of a straight line, that's correct. [00:25:26] Speaker 00: With respect to the evidence on summary judgment, there's only two pieces of evidence, or two pieces of evidence that was really presented to the court. [00:25:39] Speaker 00: And one nonsensical piece of evidence. [00:25:41] Speaker 00: What Cygnus urges is that [00:25:45] Speaker 00: the product itself constituted evidence to defeat the motion for summary judgment. [00:25:51] Speaker 00: I think that just begs the question, A, because our product simply has notches, and B, there's no evidence whatsoever that was submitted that indicated that any portion of the front and back sidewall panels between the notches was weakened in any way. [00:26:06] Speaker 00: Number two, the Cygnus submitted web readouts of three or four scientific audit [00:26:14] Speaker 00: No expert testimony, no explanation of those articles, nothing whatsoever. [00:26:19] Speaker 00: Our articles were there. [00:26:21] Speaker 00: If you actually took time to read the articles, the articles talked from a technical standpoint of how notches create, concentrate stress, and help initiate a tear. [00:26:33] Speaker 00: The third piece of evidence is the testimony by declaration of Mr. Sweeney. [00:26:40] Speaker 00: And Mr. Sweeney [00:26:42] Speaker 00: a number of conclusions in his declaration. [00:26:45] Speaker 00: It's based upon his personal knowledge of carrying a bag. [00:26:51] Speaker 00: No scientific testing, nothing of that nature whatsoever. [00:26:58] Speaker 00: There is nothing in his declaration that supports the claim that there was something weakened in the back and the front of the bed. [00:27:08] Speaker 00: Nothing in his declaration that supports that. [00:27:11] Speaker 00: conspicuously absent from his declaration is any evidence to accept there ever was any line, but it was in the front and back side wall panels. [00:27:27] Speaker 00: I believe that the record is absolutely clear that the district court's definition of weak in line is as set forth by the district court, requires something physical, something identifiable, [00:27:41] Speaker 00: It requires a lawn. [00:27:42] Speaker 00: It requires that the front and the back have a deformed, weakened material. [00:27:47] Speaker 00: There's absolutely no evidence in the record that would support any claim whatsoever of infringement, whether literally or under the doctrine of equivalence. [00:28:00] Speaker 01: Thank you. [00:28:04] Speaker 01: Thank you. [00:28:08] Speaker 01: Mr. Lieberman, you have two minutes and two seconds. [00:28:11] Speaker 02: Thank you. [00:28:12] Speaker 02: I just want to point out the amendment I was discussing was originally Claim 13, which became Claim 10. [00:28:18] Speaker 02: You can find it at A123 through 125. [00:28:24] Speaker 02: Another point I want to bring up, there's a lot of discussion about the side seals being something different. [00:28:29] Speaker 01: One of the problems with statements like that is that you may know what's on A123 and 125, but it's not in here. [00:28:40] Speaker 01: I know [00:28:41] Speaker 01: that people assign appendix numbers to large volumes of material. [00:28:46] Speaker 01: And then by our rules, we say, submit only the stuff you cited. [00:28:50] Speaker 01: Those aren't in here. [00:28:55] Speaker 02: OK. [00:28:55] Speaker 02: Is that something we could submit to the court? [00:28:57] Speaker 01: I think we can find them in the prosecution history. [00:29:04] Speaker 02: OK. [00:29:04] Speaker 02: Thank you. [00:29:05] Speaker 02: There was discussion about the side seals and the notches being the side seals versus the front and back panel. [00:29:11] Speaker 02: And I just want to point out that Pelley submitted a declaration of their principle. [00:29:15] Speaker 02: It's at A380. [00:29:17] Speaker 02: And he discusses how this pouch is manufactured. [00:29:20] Speaker 02: And it's really just two front and back pieces of plastic that are overlaid over one another and then heat sealed on the side. [00:29:27] Speaker 02: So really the side seals are the front and back. [00:29:29] Speaker 02: There's not a separate material or anything out of the side. [00:29:33] Speaker 02: It's literally just the edges of the front and back. [00:29:35] Speaker 02: So we would submit that the side seals are the front and back. [00:29:39] Speaker 02: And as your honor pointed out, [00:29:41] Speaker 02: once you tear through the side seal, now you are in the front and back. [00:29:44] Speaker 02: So we believe that element is met. [00:29:47] Speaker 02: There has also been some discussion in the briefs and just now about our lack of expert. [00:29:52] Speaker 02: And I think it's pretty clear in the case law, it's not required to have an expert for infringement. [00:29:58] Speaker 02: And we believe that a jury could have applied the technology to the claims in a simple case like this and found infringement without an expert. [00:30:07] Speaker 02: Thank you. [00:30:07] Speaker 01: Thank you. [00:30:09] Speaker 01: The case is submitted.