[00:00:40] Speaker ?: Okay. [00:01:04] Speaker ?: Okay. [00:01:04] Speaker ?: Okay. [00:01:07] Speaker 04: Our final case this morning is number 14-1417, order store technology LLC versus SMM distributors, Mr. Coyne. [00:01:19] Speaker 01: Thank you, Your Honor. [00:01:21] Speaker 01: Judge Dyke, Judge Ray, Judge Wallach. [00:01:23] Speaker 01: With the accounts at table, with Parker Kumar, one of my colleagues. [00:01:27] Speaker 01: This appeal really involves one fundamental issue, and that is, did the district court properly construe the term WIC means? [00:01:36] Speaker 01: in this patent for a deodorizer. [00:01:39] Speaker 01: The law of the circuit is very clear under JVW, under microchemical, a number of other cases that are cited in our briefs. [00:01:48] Speaker 01: It is the claimed function for that means, not other functions in the specification. [00:01:55] Speaker 01: And then you look at all of the structure. [00:01:57] Speaker 05: You say throughout this thing that claim one includes no functional requirement that the WIC means absorb water outside the compartment. [00:02:06] Speaker 05: Yes. [00:02:08] Speaker 05: If water doesn't come from outside the shell, where's it coming from? [00:02:14] Speaker 01: The water does come from outside the shell, but it's not necessary that it come through the wick. [00:02:19] Speaker 01: Your honor, if you could look at page A47 of the joint appendix is the 661 patent. [00:02:26] Speaker 01: At the top of column seven specifies that there are different ways to construct this device. [00:02:33] Speaker 01: you could have an impervious shell to which water cannot pass. [00:02:37] Speaker 01: And at column seven, line 50, it makes it very clear that the only way for water to get in in that configuration is through the WIC. [00:02:46] Speaker 01: But if you look at the top of column eight, it also provides an alternative embodiment. [00:02:52] Speaker 01: Namely, it's on page A47, column eight, starting at line one. [00:02:58] Speaker 01: And it reads, in another embodiment, [00:03:00] Speaker 01: The membrane shell 22 is permeable to liquid, water and chlorine dioxide solution and gas, chlorine dioxide gas. [00:03:08] Speaker 01: In this embodiment, water can enter the device and aqueous solution that is formed in the device can exit the device by way of the membrane shell. [00:03:17] Speaker 01: So that's not the only way for water to get in. [00:03:19] Speaker 04: But that may be in the specification. [00:03:21] Speaker 04: Your problem is that the claim language talks about transporting water into said compartment. [00:03:28] Speaker 04: And the question is, does that mean [00:03:30] Speaker 04: transporting it from outside into the compartment as the claim construction here specified? [00:03:39] Speaker 04: And why isn't the language of the claim on the face of it perfectly clear that it has to be transporting water from outside to inside? [00:03:47] Speaker 01: Well, Your Honor, I'm not going all the way the other way, but it is not perfectly clear that it has to be the WIC [00:03:53] Speaker 01: transporting the water from outside. [00:03:56] Speaker 01: And let me explain why. [00:03:57] Speaker 01: There are three. [00:03:57] Speaker 05: The point of all these devices is to keep water away from the chemical until it's needed to create the gas. [00:04:05] Speaker 01: Yes. [00:04:05] Speaker 01: And the patent provides a number of ways to do that. [00:04:07] Speaker 01: You can wrap it in a foil pouch. [00:04:10] Speaker 01: You could have different types. [00:04:12] Speaker 01: And if I could explain, there are three different ways they do this. [00:04:16] Speaker 01: One is with a wick that extends outside. [00:04:18] Speaker 01: And that can be a permeable or impermeable shell. [00:04:21] Speaker 01: But in those situations, [00:04:22] Speaker 01: The wick clearly is, as Judge Wallach's question pointed out, the way water gets in. [00:04:27] Speaker 01: Secondly, you could have a permeable shell. [00:04:30] Speaker 01: And if you look at column six, there's a specific disclosure that the wick can be merely inserted inside the compartment. [00:04:38] Speaker 01: So no, the wick does not. [00:04:39] Speaker 01: This specification makes clear that a second group of embodiments is the wick being fully inside the compartment. [00:04:46] Speaker 04: Well, whether or not that's true, the problem that you have is that the claim says that the wick means [00:04:52] Speaker 04: is for absorbing water and transporting water into said compartment, which suggests that the WIC means is transporting water from outside inside. [00:05:02] Speaker 01: Your honor, I would agree that that is a plausible inference, a suggestion. [00:05:06] Speaker 01: But the claim is not on its face that clear. [00:05:09] Speaker 01: And that reading, more importantly, is not consistent with these portions of the spec. [00:05:14] Speaker 01: There is a third. [00:05:15] Speaker 01: So we have the first group, which is the nine preferred embodiments, where the WIC is bringing water in from outside. [00:05:22] Speaker 01: And that's the construction that Judge Middlebrooks accepted. [00:05:25] Speaker 01: The second group is starting at the top of column eight with the disclosure at column six. [00:05:30] Speaker 01: I have a permeable shell that allows the water in through another means. [00:05:34] Speaker 01: And I have the wick fully inside. [00:05:37] Speaker 01: So yes, in that situation, it would be transporting it from inside more deeply inside. [00:05:42] Speaker 01: And then there's a third alternative. [00:05:45] Speaker 01: There is a disclosure at column 13, page A50, [00:05:50] Speaker 01: in which the acid powder is wrapped in the same wicking material. [00:05:55] Speaker 01: And it specifically states that the same material that performs the same wicking action. [00:06:01] Speaker 01: And again, it's the wicking action that's repeated throughout this spec, absorbing water and transporting the water inside or into the compartment. [00:06:10] Speaker 01: So the question is, does that require that it be from outside? [00:06:13] Speaker 01: The answer is no. [00:06:14] Speaker 01: I have three alternatives here, only one of which requires that the wick transport from outside [00:06:20] Speaker 01: Two of which, again, they're not preferred embodiments. [00:06:23] Speaker 01: They are disclosed, however, very clearly. [00:06:25] Speaker 01: So reading it that way, given the ambiguity of the claim language, which I will concede, reading it that way would eliminate these other two embodiments. [00:06:35] Speaker 01: And that's not how a means plus function claim should be read. [00:06:38] Speaker 01: The claim appears to have been written this way to specify the endpoint of the wicking means without specifying that it has to be starting outside [00:06:49] Speaker 01: in order to accommodate those other two disclosed sets of embodiments that are non-preferred. [00:06:56] Speaker 01: If it is read the way the district court read it, it would eliminate those portions of the specification. [00:07:02] Speaker 01: So what the claim does say is it has to finish up inside and it has to finish up, I'll agree, more deeply inside than it started. [00:07:10] Speaker 01: So it could be touching the inside of the compartment shell and have to extend in. [00:07:15] Speaker 04: Are there other claims here which are [00:07:19] Speaker 04: directed to the other embodiments as you described them? [00:07:24] Speaker 01: The broadest independent claims are the only ones that would cover those other non-preferred embodiments. [00:07:29] Speaker 01: The closest it comes is claim 15, which makes it clear, for example, the district court construed it has to be from outside to inside and then on extending into that it has to go through the membrane shell. [00:07:43] Speaker 01: If you look at claim 15, page A54 of the Joint Appendix, it's at column 22, [00:07:49] Speaker 01: That specifically states, for that dependent claim of claim one, that the wicking mean does extend beyond the outer shell. [00:07:59] Speaker 01: So there's at least a claim differentiation argument that claim one is not so limited. [00:08:05] Speaker 01: It appears to be written, so they did specify the endpoint extending farther into, but they didn't specify the starting point, which appears to have been to accommodate these other two non-preferred embodiments. [00:08:16] Speaker 01: So, Your Honor, yes, I agree that [00:08:18] Speaker 01: It isn't crystal clear, at least that it does cover that. [00:08:22] Speaker 01: But it's also not crystal clear in terms of its common ordinary meaning that it excludes it. [00:08:27] Speaker 01: And excluding it does violence to these other sections of the specification that I mentioned, the wicking means wrapping these acid components, which are, let's face it, this is all cellulose sponge. [00:08:40] Speaker 01: It's all pieces of cellulose sponge. [00:08:42] Speaker 01: That's what the defendants are using. [00:08:44] Speaker 01: And that's one of the specifically disclosed embodiments of the invention here. [00:08:48] Speaker 01: So the question is, does it have to extend front? [00:08:51] Speaker 01: Does the wick have to be the only way water gets in? [00:08:54] Speaker 01: And the answer from this spec is no. [00:08:57] Speaker 04: That may be, but you keep having the problem that, like column eight, this other embodiment that you're incurring to doesn't describe a wick or wicking means, whereas the claim does. [00:09:10] Speaker 04: It seems to be irrelevant to the claim that you're looking at. [00:09:15] Speaker 01: Well, Your Honor, it isn't irrelevant to the claim I'm looking at because the claim is a means plus claim. [00:09:21] Speaker 01: It's supposed to cover all of the structures that cover that claimed function. [00:09:26] Speaker 01: And the claim that structure would include which at column six where the WIC can be merely inserted. [00:09:32] Speaker 01: If the WIC is merely inserted and the wrapper is impervious, it won't work. [00:09:36] Speaker 01: Agreed. [00:09:36] Speaker 01: But if the wrapper is permeable or has holes in it, which are two of these non-preferred embodiments, [00:09:41] Speaker 01: merely inserting the wick into the compartment will work, and it will draw water. [00:09:45] Speaker 01: It will absorb water, granted, inside the compartment. [00:09:48] Speaker 01: And it will also bring it more deeply inside the compartment because it's a sponge. [00:09:53] Speaker 01: And that is why we say that Judge Middlebrooks erred when he construed it to be limited to these nine preferred embodiments. [00:10:00] Speaker 01: It does cover these other, at least the broadest independent claims, cover these other non-preferred embodiments as well. [00:10:07] Speaker 01: The other two issues that are raised by the appellee [00:10:10] Speaker 01: are the connected to, again, even if we were to accept that connected to has a common ordinary meaning that requires some physical link, which is what the district court found, this language at column six refutes that. [00:10:25] Speaker 01: So the construction he's adopted is inconsistent with an express statement in the specification that connected to, for example, it says that page A46, column six, [00:10:38] Speaker 01: I'm reading from about line 34, 34 to 37. [00:10:41] Speaker 01: The WIC member can be connected to the membrane shell by being directly or indirectly fastened to a portion of the shell, which is the construction the district court adopted, or by being merely inserted into the compartment. [00:10:56] Speaker 01: The district court's construction reads out that last clause. [00:10:59] Speaker 01: And that is, in our view, improper. [00:11:01] Speaker 01: At a minimum, this language would constitute fairly clear lexicography [00:11:06] Speaker 01: from the patentee that he was intending that the WIC could be fully enclosed within the compartment. [00:11:12] Speaker 01: And that the district court's construction reads that out. [00:11:15] Speaker 04: Well, column six doesn't say that, does it? [00:11:18] Speaker 01: Well, I'm sorry, Your Honor. [00:11:18] Speaker 01: It says that the WIC member can be merely inserted into the compartment. [00:11:22] Speaker 04: It doesn't require it. [00:11:23] Speaker 04: That doesn't necessarily suggest that it's contained entirely within the compartment. [00:11:29] Speaker 01: OK, Your Honor. [00:11:30] Speaker 04: Inserting something doesn't mean that it can't stick out still. [00:11:34] Speaker 01: It doesn't mean that it can't stick out, but it doesn't mean that it has to stick out either. [00:11:38] Speaker 02: Even if it means it can be inserted all the way in, it doesn't mean that it can be inserted all the way in and not touch the membrane. [00:11:47] Speaker 01: No, Your Honor. [00:11:48] Speaker 01: Clearly, in terms of touching the membrane, we're not contending that it doesn't have to touch the membrane at all. [00:11:54] Speaker 01: It has to have some connection, as we cited in our brief, if I'm wearing my athletic shirt. [00:11:59] Speaker 01: It's not fixed to me, but it is touching me and that's how it's working. [00:12:03] Speaker 01: It's performing the same kind of wicking action with a capillary action. [00:12:07] Speaker 01: So yes, we would concede that it has to be touching the inner surface of the shell in order to be able to absorb water that's brought in through that permeable membrane shell. [00:12:18] Speaker 02: The last issue... How is that inconsistent with the quartz construction then? [00:12:23] Speaker 01: Well, the district court specifically addressed this point and cited that particular portion of the specification at page 11 of its opinion, and then at page 12 it expressly rejected it. [00:12:37] Speaker 01: It acknowledged it, it cited the language verbatim, and it said that's basically inconsistent with my instruction and I'm not going to do it. [00:12:45] Speaker 01: So he did recognize there was a conflict with that portion of the specification. [00:12:50] Speaker 04: You agree that the claim construction was right? [00:12:53] Speaker 01: You lose? [00:12:54] Speaker 01: Your Honor, yeah, absolutely. [00:12:55] Speaker 01: I agree that if this claim construction is correct, there is no infringement. [00:13:00] Speaker 01: We do. [00:13:01] Speaker 01: But we do not believe that it's correct, because we thought this is a means plus claim, and we don't feel that it was properly construed. [00:13:08] Speaker 01: The last issue, I feel I have a few minutes before, saving a few minutes for rebuttal time, is this extending into point, which gets back to your Honor's question. [00:13:18] Speaker 01: With respect, the district court specifically held that it means sticking into the compartment through the membrane shell. [00:13:25] Speaker 01: It gets back to the same issue. [00:13:26] Speaker 01: So yes, if the WIC means is lost, then all of these issues are lost. [00:13:32] Speaker 01: But if the WIC means is one, if it merits a vacation and remand to the district court, this does not provide an independent grounds for judgment, because this interpretation that it has to stick through the membrane shell is incorrect. [00:13:46] Speaker 01: Quick question. [00:13:47] Speaker 01: before you wrap. [00:13:48] Speaker 05: Yes, sir. [00:13:50] Speaker 05: In the appellant's brief, you say, nowhere does Older Star act as its own lexicographer to limit the claims in its manner, as cited by the district court. [00:14:00] Speaker 05: In its reply, it says, to the extent the district court considered the common ordinary meaning of connected to to be more limited, the patentee acted as its own lexicographer and gave the term connected to a broader meaning, clear and unambiguous terms. [00:14:17] Speaker 05: Does the 661 patent contain express lexicography? [00:14:22] Speaker 01: Well, Your Honor, we don't feel that the district court's construction of connected to was correct. [00:14:27] Speaker 01: But if this court feels that it was, then yes, we did act as our own lexicographer in giving it a contrary meaning and the district court recognizes that it's contrary. [00:14:36] Speaker 01: So our position is, as it was in the beginning brief, that we don't think that the ordinary meaning is so limited, but if you feel that it is, [00:14:43] Speaker 01: it's clearly inconsistent with the specification and the specification controls under this court's precedent. [00:14:50] Speaker 04: Your Honor, look, I'm into my rebuttal time, I'd like to... I get that the specification doesn't control what the claim language doesn't include one of the embodiments of the specification, right? [00:14:59] Speaker 01: Well, Your Honor, if the patentee is given under Phillips, under a number of this court's precedents, if we've given that term connected to a different meaning, namely that it can be merely inserted into, [00:15:10] Speaker 01: and the ordinary meeting is inconsistent. [00:15:12] Speaker 03: Well, I was talking about the WIC means. [00:15:15] Speaker 01: I'm sorry? [00:15:16] Speaker 03: I was talking about the WIC means. [00:15:17] Speaker 01: Oh, I'm sorry, Your Honor. [00:15:18] Speaker 01: Yes, no. [00:15:19] Speaker 01: The WIC means I've explained, but this is limited only to connected to. [00:15:24] Speaker 01: There is ample evidence of record. [00:15:25] Speaker 01: We've summarized in our reply brief why extending to creates a genuine issue of fact. [00:15:29] Speaker 01: It does not merit an alternative ground. [00:15:31] Speaker 01: I'd like to reserve the rest of the time, Your Honor. [00:15:37] Speaker 04: Mr. Pennington. [00:15:41] Speaker 00: It's still morning, your honor. [00:15:42] Speaker 00: Good morning. [00:15:43] Speaker 00: Edward Pennington for the aptly at my table is my colleague, Mr. Sean Phelan. [00:15:49] Speaker 00: And I'm sorry, I have a little bronchitis, so I'm a little hard to hear right now. [00:15:54] Speaker 00: One thing that I'd like to address is what you seized on when they were talking about, Mr. Coyne was talking about the different ways water can get into the device. [00:16:04] Speaker 00: Those are not alternative ways. [00:16:06] Speaker 00: If you look at claim one, claim one says, [00:16:09] Speaker 00: We have a wick means, and it does certain things. [00:16:13] Speaker 00: It absorbs water and it transports water. [00:16:16] Speaker 00: That is required. [00:16:17] Speaker 00: It's not an alternative. [00:16:18] Speaker 00: You can't put holes in the shell and let water go in that way and avoid the wick. [00:16:26] Speaker 05: So whatever you're saying is that in some sense, all of those embodiments are a wick means. [00:16:33] Speaker 00: I'm saying in every embodiment, you have to have a wick means that transports water. [00:16:37] Speaker 00: So what he was talking about is an alternative way of getting water into the shell. [00:16:43] Speaker 00: And if you add different means to it, you don't avoid the fact that you still have to have a wick. [00:16:49] Speaker 04: And what the lower form- Why is that true? [00:16:51] Speaker 04: I understand your argument in that respect with respect to the embodiment described in column six, but why is that true with respect to the embodiment described in column eight? [00:17:01] Speaker 04: It strikes me that that doesn't contemplate a wick. [00:17:11] Speaker 05: said permeable. [00:17:13] Speaker 05: Oh, yeah. [00:17:14] Speaker 00: Well, that's just, I mean, that's just another way of getting water in, in addition to having the wick. [00:17:19] Speaker 04: Well, we're right, but it doesn't require a wick. [00:17:22] Speaker 04: There's an embodiment in column eight that doesn't require a wick. [00:17:25] Speaker 00: But that's not what is claimed in claim one, that claim one requires a wick. [00:17:28] Speaker 04: Fair enough, but you said that all the embodiments require a wick, and I'm just suggesting that that's not correct, that the embodiment in column eight doesn't require a wick. [00:17:36] Speaker 00: You are correct on that, but we're dealing with claim one, and claim one requires a wick. [00:17:41] Speaker 00: I thought you were going to say the shell asset is a WIC. [00:17:44] Speaker 00: No. [00:17:45] Speaker 00: What I will say, though, is this. [00:17:47] Speaker 00: The court said that we had no WIC. [00:17:49] Speaker 00: We had no WIC means. [00:17:50] Speaker 00: And that's very fundamental to this case. [00:17:53] Speaker 00: The claims require WIC means. [00:17:55] Speaker 00: And it's not just a means plus function, but it's one that is connected to and extends into. [00:18:00] Speaker 00: It's not simply means plus function language. [00:18:03] Speaker 00: There is structural limitation in the claim. [00:18:06] Speaker 00: And the reason for that is very important. [00:18:09] Speaker 00: These devices are all about how you control the introduction of water into the device. [00:18:15] Speaker 00: You don't want them going off haphazardly because they create a gas, and it's somewhat caustic if you were too close to it. [00:18:23] Speaker 00: So what all of these patents that were cited in the file history do the same thing. [00:18:29] Speaker 00: They have different ways of doing it. [00:18:31] Speaker 00: And this particular applicant decided to use a wick to allow water to come into it relatively slowly. [00:18:38] Speaker 00: That wick is the water highway through which water comes from the outside to get into the inside. [00:18:44] Speaker 00: If it wasn't for that wick and you just poke holes through the whole thing, you can just dump water in and you'd have an immediate reaction. [00:18:51] Speaker 00: And then that would be the end of it. [00:18:53] Speaker 00: This device is a very, very specific device. [00:18:56] Speaker 00: The reason you have the word connected in there is that if the wick was not connected to the shell, there'd be opportunities for the wick to move around. [00:19:08] Speaker 00: Let's say fall out, for example. [00:19:10] Speaker 00: And if that were to happen, it would no longer function. [00:19:14] Speaker 00: So connection is actually part of the functionality of the means plus function. [00:19:20] Speaker 00: If you were to take a look at A32, which shows the WIC clearly sticking out there, if there was no connection at all, and you were just to move this thing around, the WIC could fall out. [00:19:33] Speaker 00: And it's important that the orientations stay the same. [00:19:37] Speaker 02: So what if it falls out? [00:19:40] Speaker 02: That doesn't require it to be connected. [00:19:42] Speaker 02: It's just more of a faulty device. [00:19:44] Speaker 00: If it fell out, there'd be no way for the wick to transport water into the shell. [00:19:49] Speaker 00: If it was not sticking into the shell, it couldn't transport. [00:19:53] Speaker 00: So that's why connection is an important limitation. [00:19:56] Speaker 00: It's not something that we construed as part of the claim language. [00:20:00] Speaker 00: It's in the claim. [00:20:02] Speaker 00: And the judge did not, I don't think he construed connection [00:20:06] Speaker 00: He denied the opportunity to do so. [00:20:09] Speaker 00: It just used the ordinary meaning of the word. [00:20:11] Speaker 00: Connection cannot mean not connected. [00:20:14] Speaker 00: And so very importantly, what the other side refers to is this language that talks about being merely inserted. [00:20:21] Speaker 00: If you look at that language, that's not what it says. [00:20:25] Speaker 00: There are a couple of different ways to do the connection. [00:20:29] Speaker 00: One is by directly connecting. [00:20:31] Speaker 00: One is by indirectly connecting. [00:20:33] Speaker 00: And one is by insertion. [00:20:35] Speaker 00: But if you read the sentence, [00:20:37] Speaker 00: It says connection by insertion. [00:20:40] Speaker 00: If I take insertion to mean loosely inside the pouch, it's no longer connected. [00:20:45] Speaker 00: So under no circumstance can I construe this or read this claim to say connection is not connected. [00:20:52] Speaker 00: A perfect example of a connection by insertion is something we mentioned in the lower court's briefing. [00:20:59] Speaker 00: If I have a wine bottle and I use half the bottle and I want to save the rest and I put the cork in the neck of the bottle, [00:21:06] Speaker 00: There's an interference fit there. [00:21:08] Speaker 00: The cork is extending into the net, and it's connected because of the interference. [00:21:14] Speaker 00: But I can open the wine bottle again by pulling it out if I supply sufficient force. [00:21:20] Speaker 00: Now, there's not a great deal of detail describing that in the patent, but just look at the drawings. [00:21:26] Speaker 00: If you look at the drawings like A33, they show how the direct connection can be made. [00:21:32] Speaker 00: They show a stitching line. [00:21:34] Speaker 00: where the wick is stitched into the pouch. [00:21:38] Speaker 00: When they're describing the insertion, there's no figure that they're referring to other than figures one through four. [00:21:45] Speaker 00: If you look at where that language occurs, it's while you're reading, while you're looking at figures one through four. [00:21:52] Speaker 00: And then if you were to try to help them out and look elsewhere in the patent, there are no drawings where the wick does anything except extend outside the shell. [00:22:04] Speaker 00: And that brings me to another one of their arguments, which was Mr. Corn was talking about this pouch that has wick-like functionality. [00:22:13] Speaker 00: That's A39 is some kind of little pouch in figure 15. [00:22:19] Speaker 00: If you see it in figure 14, there it is. [00:22:23] Speaker 00: Well, lo and behold, that pouch is all the way inside here, but that's not the wick. [00:22:29] Speaker 00: The wick is 24. [00:22:30] Speaker 00: It's not described as a wick, even if the pouch it's contained in is made out of the same material. [00:22:37] Speaker 00: That's not the wick that is used to bring water in. [00:22:40] Speaker 00: This is, and you can see it extends out both sides. [00:22:43] Speaker 00: And in fact, in this embodiment, it extends out all sides. [00:22:47] Speaker 00: So this thing goes well beyond even the most simple embodiment, where it just extends out the top surface. [00:22:54] Speaker 00: In the embodiment that they're using for support, it actually goes beyond all the surfaces. [00:22:59] Speaker 00: So I think, your honor, what I would say to all of us is we just didn't have what they claimed. [00:23:08] Speaker 00: We did not have a WIC or a WIC means I brought the product, but I didn't do a notice to the court. [00:23:15] Speaker 00: Mr. Coyne said he wouldn't mind if we talked about it. [00:23:18] Speaker 00: I'm happy to show it to you. [00:23:19] Speaker 00: But what you'll find is those little pellets that we have are just loosely disposed within a pouch. [00:23:28] Speaker 00: And they're just hanging out in there. [00:23:30] Speaker 00: And there's a separate pouch that contains the active ingredients. [00:23:34] Speaker 00: And for all our benefit, I removed that before I came into the courtroom. [00:23:38] Speaker 00: So what we have on the table is just what's actually accused of infringement. [00:23:43] Speaker 00: And they're just little loose pieces of tiny little sponges, if you want to call them that, that are inside the pouch. [00:23:49] Speaker 00: They are completely enclosed within the pouch. [00:23:53] Speaker 00: They cannot possibly bring water from outside to inside. [00:23:57] Speaker 00: as a WIC means, which is, again, this is a very, very specific kind of product that they patented. [00:24:05] Speaker 00: We felt no compunction to try to invalidate it because we don't want to do it. [00:24:10] Speaker 00: We do it a different way. [00:24:12] Speaker 00: We do it a more simple way. [00:24:15] Speaker 00: We add water to the device. [00:24:17] Speaker 00: We don't wait for water to seep in through a WIC. [00:24:22] Speaker 00: Your Honor, the most I can say about this is I've looked through this patent so many times, and I'm sure everybody has, but there's not an embodiment anywhere where there is a wick that is completely enclosed in the shell. [00:24:35] Speaker 00: And the only thing they can point to, again, is A37. [00:24:39] Speaker 00: Again, that is a pouch of active ingredients. [00:24:44] Speaker 00: It's not the wick. [00:24:45] Speaker 00: The wick is, if you go back to A38, there it is. [00:24:49] Speaker 00: It's a giant sheet. [00:24:50] Speaker 00: Just like all the other embodiments, it is a particular kind of product that we just don't use. [00:24:56] Speaker 00: And then on the inserted end, if you just read the entire sentence and don't focus on inserted end, where it says it is connected by directly, it's directly connected, which would be stitching indirectly, which if you think about glue, they mentioned gluing is one way to do it. [00:25:17] Speaker 00: If this is the wick and this is the shell and I have glue in between, I'd call that an indirect connection because there's a glue interface between the two. [00:25:27] Speaker 00: If it's by insertion, you have to say, well, what exactly do they mean by that? [00:25:32] Speaker 00: There's not a whole lot of description, but read the whole sentence. [00:25:36] Speaker 00: It says connection by this or by this. [00:25:39] Speaker 00: And the second alternative by this is insertion. [00:25:43] Speaker 00: It still means connection. [00:25:45] Speaker 00: connection by insertion. [00:25:48] Speaker 00: If insertion means poke the cork all the way into the wine bottle, it's no longer connected to the wine bottle. [00:25:55] Speaker 00: Nobody in their right mind would say that's connected to the wine bottle. [00:25:59] Speaker 00: And that's what I would say to their argument, that a description cannot support the notion that a wick can be completely inside the device. [00:26:11] Speaker 00: Unless you have any questions, that's about all I have. [00:26:15] Speaker 00: Oh yeah, I have one question. [00:26:16] Speaker 05: What do you tell your customers, as opposed to what they tell their customers, about how to use this thing? [00:26:21] Speaker 05: Just pour the water in and put it out in the space, right? [00:26:27] Speaker 00: What I think we do, and again, the product is in all the briefing, you'll see photographs of this. [00:26:36] Speaker 00: The customer will take this little cup, they'll open this package, [00:26:41] Speaker 00: This is what goes in here. [00:26:47] Speaker 00: They fill this with water and they pour it on. [00:26:51] Speaker 00: So this is not the shell. [00:26:52] Speaker 00: This is just a mechanism to make this work. [00:26:55] Speaker 00: Within this pouch, I guess arguably this is the membrane shell. [00:27:00] Speaker 00: Within here, these are the active ingredients which I removed this morning by cutting it open and dumping them out. [00:27:07] Speaker 00: But this is what they're calling the [00:27:10] Speaker 00: those little guys right there are just loosely inside here. [00:27:15] Speaker 00: And if I dump the water in here and all those little squares are properly in the pouch, the water seeps through the membrane shell, if you want to call it that. [00:27:27] Speaker 00: We call it the teabag because that's exactly the same material that it's made out of. [00:27:31] Speaker 00: And the water goes into there and it eventually dissolves [00:27:36] Speaker 00: This package, which contains the active ingredients, the water reacts with the dry constituents. [00:27:42] Speaker 00: And the pellets are just there to absorb water. [00:27:45] Speaker 00: What they have found, just from a marketing standpoint, is if I let one of these off in my car because somebody smoked in it, if the cat comes along and knocks it over, that stuff will bleep the heck out of your seat. [00:27:58] Speaker 00: So it can ruin the interior of a car if it's knocked over. [00:28:01] Speaker 00: So they put those in there to hold it. [00:28:03] Speaker 00: And that's another way of controlling the release [00:28:06] Speaker 00: It's different from what they're doing. [00:28:07] Speaker 00: They use the whip to control the introduction of water. [00:28:11] Speaker 00: Here's how we introduce water. [00:28:12] Speaker 00: That's not really controlled. [00:28:14] Speaker 00: It's a controlled amount. [00:28:16] Speaker 00: But what we're now doing is controlling the evaporation of the product. [00:28:21] Speaker 00: So it doesn't just flash and kill a couple of spores or whatever instantly. [00:28:27] Speaker 00: So it's a way of timing it out. [00:28:30] Speaker 00: So thank you. [00:28:33] Speaker 04: Thank you. [00:28:34] Speaker 04: Mr. Cormoran, we'll give you two minutes here. [00:28:44] Speaker 01: Thank you, Your Honor. [00:28:45] Speaker 01: With respect to the wick, yes. [00:28:48] Speaker 01: Whether or not the water is permeable and the water comes in through the shell, we require a wick too. [00:28:53] Speaker 01: It's just that simple. [00:28:55] Speaker 01: With respect to the point that Mr. Cormoran made about the limitations, it really does come down to whether the wick has to extend outside. [00:29:02] Speaker 01: And there's no express language. [00:29:04] Speaker 01: in this claim that says that. [00:29:06] Speaker 01: Is it ambiguous between the two, whether it does or doesn't, on the literal language of the claim? [00:29:10] Speaker 01: Sure, but the specification makes clear there are these alternatives. [00:29:14] Speaker 01: And if we look at the alternative, for example, page 39 that Mr. Pennington pointed to is one of the embodiments where we have the acid component in these small pellets of wicking material performing the same wicking action, is what the spec says. [00:29:32] Speaker 01: There aren't rattling around. [00:29:34] Speaker 01: They are adjacent to and abutting the sides of the shell. [00:29:37] Speaker 01: That's what these small pellets 34 are. [00:29:40] Speaker 01: And 34 also depicts those at page 839 at figure 15. [00:29:46] Speaker 01: So they are comparable to the small pieces of cut-up sponge that are in the accused device. [00:29:52] Speaker 01: And if we look at 905 and 905. [00:29:57] Speaker 05: I think it was item 24. [00:30:01] Speaker 05: Those extend on all sides, right? [00:30:04] Speaker 01: The preferred embodiments of the invention, yes, they do. [00:30:07] Speaker 01: And some of them can go out one side or at least be flush. [00:30:10] Speaker 01: But on the preferred embodiments, all of them, he's right, there are no drawings showing these alternative embodiments. [00:30:15] Speaker 01: All the drawings depict the preferred embodiments. [00:30:18] Speaker 01: If we look at pages 905 and 908 of the Joint Appendix, it is SMM's patent that they filed and abandoned after this dispute came up describing how these pieces of sponge [00:30:32] Speaker 01: work and what they say at page 908 at paragraphs 29 and 30 of their own patent application and admission by the party opponent is that they wick water farther into the device. [00:30:45] Speaker 01: So they're doing the same thing. [00:30:48] Speaker 01: Are they the same wick as the preferred embodiments? [00:30:50] Speaker 01: No. [00:30:51] Speaker 01: Your Honor, I see that my time has ended. [00:30:53] Speaker 01: Okay. [00:30:53] Speaker 01: Thank you, Mr. Cormann. [00:30:54] Speaker 01: Thank you. [00:30:55] Speaker 01: Thanks, Your Honor. [00:30:55] Speaker 04: The case is submitted and that concludes our session for the day. [00:31:02] Speaker 05: The audible court is adjourned until tomorrow morning at 10 o'clock a.m.