[00:00:33] Speaker 00:
Okay, the next argued case is number 14-17-18, R plus L carriers incorporated against Qualcomm.

[00:00:42] Speaker 00:
Mr. White.

[00:00:43] Speaker 04:
Thank you, Your Honor.

[00:00:46] Speaker 04:
Good morning, Your Honors.

[00:00:47] Speaker 04:
The Council may please the Court.

[00:00:49] Speaker 04:
This case presents an important opportunity for this Court to reaffirm that a patentee can in fact define a characteristically claimed term by implication.

[00:00:58] Speaker 04:
The intrinsic evidence of the 07-8 patent shows

[00:01:02] Speaker 04:
that on the question of how a loading manifest is generated, there is only one answer.

[00:01:07] Speaker 04:
A loading manifest is only generated using load planning software.

[00:01:12] Speaker 04:
Throughout the specification, the patentee repeatedly used the terms loading manifest and advanced loading manifest interchangeably as synonyms.

[00:01:21] Speaker 04:
That shows that the patentee intended that for purposes of the 078 patent, an advanced loading manifest and a loading manifest are the same thing.

[00:01:31] Speaker 04:
The patentee expressly defined an advanced loading manifest as something that is generated using load planning.

[00:01:37] Speaker 02:
What is the word advance added if not to overcome priority?

[00:01:42] Speaker 04:
Your honor, the record reveals that the examiners during the re-examination requested that for clarity purposes the word advance be inserted into claim one, amended claim one, because that the term advanced loading manifest was used repeatedly throughout

[00:02:00] Speaker 04:
the patent.

[00:02:01] Speaker 04:
There's no express statement beyond what I've just said as to any particular purpose beyond that.

[00:02:07] Speaker 04:
I would say this, that a reasonable inference from that evidence in the record is that the examiner's viewed advanced loading manifest and loading manifest to be interchangeable synonymous terms.

[00:02:18] Speaker 04:
Certainly, I think, Your Honor, what we can also take from the record is that it was not intended to overcome any prior art, given the fact that the two amendments previous to this particular amendment.

[00:02:30] Speaker 04:
In fact, this amendment was not proposed by our carriers during the re-examination process to overcome any of the prior art.

[00:02:36] Speaker 04:
The amendments that RNL had proposed to adjust with respect to the prior art were considered by the examiners and tentatively agreed upon with patent counsel that that would satisfy all of the elements of the rejection that had come out of the PTO.

[00:02:52] Speaker 04:
It was only after that that the PTO examiner said, well, let's put this in there as well for clarity purposes.

[00:03:01] Speaker 01:
Well, let's assume

[00:03:02] Speaker 01:
that we find that what the PTO examiner really wanted in the re-exam was to differentiate, to have four shoots differentiated between a loading manifest that's on the original truck and a loading manifest that's on a future

[00:03:18] Speaker 01:
and that their preference for the word advance was for the same reason as their preference for the phrase about a future shipment.

[00:03:31] Speaker 01:
Even if that's the case, if putting advance in could otherwise limit the claim in other ways, does it matter why the PTO wanted the word put in?

[00:03:44] Speaker 04:
I think that, Your Honor, in the end, why the PTO wanted the amendment in there is important background information.

[00:03:52] Speaker 01:
It's better for the other side if the PTO wanted it in there for purposes of the precise debate we're having here.

[00:04:01] Speaker 01:
But even if that's not why the PTO wanted it in there, don't we still have to look to see if in fact the claims were in error?

[00:04:08] Speaker 04:
I agree with you, Your Honor.

[00:04:09] Speaker 04:
I think that while that is evidence of

[00:04:11] Speaker 04:
Whether or not the claims were actually narrowed by why the examiners asked for this particular amendment to be put in, that does not, whether they had a neutral mindset or a mindset that this was for a substantive purpose is not answering the question.

[00:04:25] Speaker 04:
The question is, as your honor said, were the claims in fact narrowed?

[00:04:29] Speaker 01:
Okay, so let's put aside why it might have been amended.

[00:04:32] Speaker 01:
Sure.

[00:04:32] Speaker 01:
It's true that it was amended.

[00:04:34] Speaker 01:
Correct.

[00:04:34] Speaker 01:
So why wasn't the word advanced in claim one in the first instance?

[00:04:38] Speaker 04:
Your Honor, I wish the record does not reveal why exactly loading manifest was used in original claim one as opposed to advanced loading manifest.

[00:04:47] Speaker 04:
The record only reveals what I believe to be the patentee's clear intent, and that is that those two terms mean the same thing.

[00:04:55] Speaker 04:
that they're interchangeably used throughout the patent.

[00:04:59] Speaker 04:
I mean, we could ask, if we had the patentee here, we could ask the patentee, well, why did you refer in Figure 6 to a generate loading manifest 740 and then in the written description say it's the exact same thing at 740, call it an advanced loading manifest?

[00:05:13] Speaker 04:
I think that we can take from that that the patentee was telling us and telling the world that these two terms are used interchangeably.

[00:05:21] Speaker 04:
That they are the same thing for purposes of the 078 patent and why it wasn't used in original claim one with loading manifest versus advanced loading manifest.

[00:05:30] Speaker 04:
If I had to guess, and there's no answer to that question in the record, if I had to guess, I would guess that the patentee did not consider that to be an important distinction at the time because those two terms mean the same thing to a person of ordinary skill in the art.

[00:05:45] Speaker 01:
Looking at the written description though, what's your answer to all those references to the manual extraction of data?

[00:05:56] Speaker 01:
I don't dispute that the patent seems to be focusing on a complete computerized system, but then why talk about the manual extraction of data or that being an option?

[00:06:08] Speaker 04:
Well, because, Your Honor, there's an important distinction in the process that's discussed here in this patent between extraction and the generation of loading manifestos.

[00:06:16] Speaker 04:
You're absolutely correct that the patent over and over again talks about different various ways to extract load planning information from the documentation data.

[00:06:24] Speaker 04:
And the patent recognizes there are several ways to do that.

[00:06:28] Speaker 04:
One way is to do it automatically where you take the data that's been transformed into electronic image and you automatically send it into the load planning software.

[00:06:36] Speaker 04:
Another way to do it, and this varies depending on what truck of company you might be dealing with out there,

[00:06:40] Speaker 04:
is to take the information from the bill of lading and actually manually key it into the load planning software.

[00:06:47] Speaker 04:
The fact of manual keying, the fact of manually extracting information does not mean that the information you are extracting is thereafter must be used by generation by hand in the absence of load planning software.

[00:07:01] Speaker 04:
It's just a recognition that the first step of this is to get the load planning information out of the documentation data.

[00:07:07] Speaker 04:
The second step is generating a loading manifest.

[00:07:09] Speaker 04:
And I would respectfully submit to the court that just merely manually pulling information out of documentation data does not require or even suggest that you're generating a loading manifest on the back end without the use of load planning software.

[00:07:24] Speaker 01:
But don't you actually come right out and say that the system can go so far as to just have use of papers for purposes of preparing a loading manifest?

[00:07:35] Speaker 04:
Yes, Your Honor, that statement does appear in the patent specification.

[00:07:39] Speaker 04:
That statement is referring again to the extraction process.

[00:07:43] Speaker 04:
Because the extraction process, in fact the quote is, in practice this system can range from a fully automatic electronic paperless system to one which relies on paper and uses the system merely as a transmission device.

[00:08:00] Speaker 04:
That quote is entirely in the context of extraction.

[00:08:04] Speaker 04:
If we look at the written description in the specification, where that quote appears, there is no discussion whatsoever about how a loading manifest is generated.

[00:08:14] Speaker 04:
That quote is entirely in the context of how information is extracted from the documentation data, load planning information.

[00:08:24] Speaker 04:
That shows that, and by the way, the load planning extraction system,

[00:08:31] Speaker 04:
does in fact range from a fully automated one to one that merely transmits the bill of lading to a load planner for manual entry into the load planning software.

[00:08:42] Speaker 04:
So if we view that quote in the context of extraction, which is the only context in which it appears,

[00:08:47] Speaker 04:
And we say, okay, does that make sense in the context of extraction?

[00:08:52] Speaker 04:
The answer is yes, it does.

[00:08:54] Speaker 04:
And so I would respectfully submit that a sentence in the context of extraction that makes sense in that context does not tell us that the second part of this process does not require a low-planning software.

[00:09:09] Speaker 01:
So why is it that in the 10 Ohio case and even in this case that you didn't argue for the limitation of computerized preparation of the loading manifest?

[00:09:23] Speaker 04:
Your Honor, when we looked at the question of what is a loading manifest and submitted that for purposes of claim construction of the Trot Court, we felt that there was a difference between what a loading manifest is and how it is generated.

[00:09:35] Speaker 04:
It is clear, we believe in the record, how a loading manifest is generated.

[00:09:42] Speaker 04:
The advanced loading manifest, its synonym, is clearly defined as a document generated by load planning software discussed above, discussed in the written description.

[00:09:53] Speaker 04:
That doesn't tell us what a loading manifest is, but it clearly tells us how an advanced loading manifest is generated.

[00:10:02] Speaker 04:
So when we see synonymous use of advanced loading manifest and loading manifest and a clear description of how that thing is generated, we did not feel and we did not submit to the trial court the question of how an advanced loading manifest is generated as being ambiguous.

[00:10:18] Speaker 04:
Neither did the Qualcomm defendant in this case suggest to the trial court in any respect.

[00:10:23] Speaker 04:
that how an advanced loading manifest is generated was ambiguous in any respect and required construction.

[00:10:30] Speaker 04:
We submitted to the trial court what we felt was the best use of the trial court's time.

[00:10:36] Speaker 04:
Construe what a loading manifest is.

[00:10:39] Speaker 04:
Tell us what that is.

[00:10:41] Speaker 04:
And that's the only thing the trial court considered.

[00:10:43] Speaker 04:
We did not object to the Pitt, Ohio reference to load planning software.

[00:10:46] Speaker 04:
But I will say this, Your Honor.

[00:10:48] Speaker 04:
I think it is important evidence for this court

[00:10:50] Speaker 04:
as to whether or not this term has been defined by implication, that a competitor of R&L carriers, a company that is looking to understand and interpret this patented process, recognized explicitly the implication that we're arguing for here, that a load planning software is used to generate a loading manifest, just like an advanced loading manifest, meaning Pitt, Ohio saw what we're arguing here, and that is that these two terms are synonymous.

[00:11:19] Speaker 00:
Thank you.

[00:11:22] Speaker 00:
Let's hear from the other side.

[00:11:27] Speaker 00:
Mr. Vandenberg.

[00:11:27] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:11:31] Speaker 03:
The claims of the 07A patent were amended during re-examination in order to overcome multiple prior art rejections.

[00:11:40] Speaker 03:
If you look at the remarks that accompanied their amendment, they repeated... Mr. Vandenberg,

[00:11:46] Speaker 02:
On page six of your responsive break, you say the PTO granted to re-examine, rejected the claims, amended to overcome the rejection, R&L amended claim one, and you cite some pages in the record, okay?

[00:12:02] Speaker 02:
In one of those pages, R&L says,

[00:12:05] Speaker 02:
Although the present communication may include alteration of the claims or characterizations of claims, scope, or reference art, patent owner is not conceding in this application that previously granted claims are not patentable over the cited references.

[00:12:22] Speaker 02:
Rather, any alterations or characterizations are being made solely to clarify the previously granted claims.

[00:12:31] Speaker 02:
What evidence do you have that they amended specifically to overcome prior art?

[00:12:37] Speaker 03:
A couple things, Your Honor.

[00:12:39] Speaker 03:
First of all, that comes at the end of a roughly 25-page amendment, and you need to look at that amendment as a whole because what you'll see... You cited me to that page.

[00:12:49] Speaker 03:
But there's a number of pages that come before that, and what you will see in the 20 pages before that

[00:12:55] Speaker 03:
is repeatedly the patentee emphasizing that it was the claims as amended that were patentable over the prior art.

[00:13:03] Speaker 03:
And literally 12 different times they bolded the amended phrase and said that's why these claims are patentable over the prior art.

[00:13:12] Speaker 03:
Then on the very last page they have essentially a boilerplate

[00:13:15] Speaker 03:
paragraph that says, oh, no, by the way, this may not actually change the claim.

[00:13:19] Speaker 03:
They didn't clearly say it doesn't change the claims.

[00:13:22] Speaker 03:
They used the word clarity or to further prosecution, which could mean narrowing the claim.

[00:13:28] Speaker 00:
Are you telling us that that was a concession that the prior claims were unpatentable?

[00:13:35] Speaker 00:
These procedures are for safeguards and clarity.

[00:13:40] Speaker 00:
They don't say that what we had before

[00:13:44] Speaker 00:
I was wrong.

[00:13:45] Speaker 03:
It certainly is possible that claims can be amended during prosecution and their scope does not change.

[00:13:52] Speaker 03:
This court previously called it difficult to conceive many circumstances where that would occur, but it certainly can occur.

[00:14:01] Speaker 03:
But that is not what occurred in this case.

[00:14:04] Speaker 03:
And I want to turn to just the regular claim interpretation analysis.

[00:14:08] Speaker 03:
But one last point I want to make on the prosecution history

[00:14:11] Speaker 03:
is two points.

[00:14:12] Speaker 03:
One is how did the examiners view this?

[00:14:15] Speaker 01:
Well, that's actually important because examiners tell us how they viewed it.

[00:14:19] Speaker 01:
That they viewed both of those amendments as relating to whether or not it was for the current shipping vehicle or a future shipping vehicle.

[00:14:29] Speaker 03:
I don't believe so, Your Honor.

[00:14:31] Speaker 03:
If you look at A3198, this is the patent office's interview summary instead of RNL's interview summary,

[00:14:40] Speaker 03:
frankly, is a bit self-serving.

[00:14:42] Speaker 03:
There are key distinctions between those two interview summary documents.

[00:14:47] Speaker 03:
And you can see, for example, RNL says agreement was reached and everything.

[00:14:50] Speaker 03:
The patent office said no, no agreement was reached.

[00:14:53] Speaker 03:
But if you look at the PTO summary, what you see is, and again, I'm on A3198, there's a paragraph talking about NNM.

[00:15:03] Speaker 03:
So I'll put you around and get to that page.

[00:15:06] Speaker 03:
OK, which paragraph?

[00:15:08] Speaker 03:
Well, probably the fourth paragraph starts out, Mr. Oberhaus pointed out the paragraph four.

[00:15:13] Speaker 03:
So that paragraph talks about N&M.

[00:15:16] Speaker 03:
And that paragraph does essentially acknowledge that N&M was overcome with the amendment about it being for another vehicle.

[00:15:25] Speaker 03:
But then if you get to the next paragraph, it says, Mr. Oberhaus further explains that the Rosenbaum prior are discussed generating resolved address data block before the physical mail pieces arrive at the receiving station.

[00:15:37] Speaker 03:
Here's the key sentence.

[00:15:38] Speaker 03:
It does not generate an advanced loading manifest document as required by the proposed amendment, which will be used for another transport vehicle.

[00:15:47] Speaker 03:
So if they were only talking about the other transport vehicle, that little clause there, as required by the proposed claim amendment, would have been at the end of the sentence.

[00:15:56] Speaker 03:
The examiners believed that the advanced loading manifest document language was critical to allowance

[00:16:04] Speaker 03:
You see that not only on this document.

[00:16:06] Speaker 01:
Again, not because it was computerized.

[00:16:09] Speaker 01:
I mean, if you look at 3088, they talk about M&M and Rosenbaum, Highwaymaster, Quiet, they talk about all of them in combination.

[00:16:19] Speaker 01:
It says whether taken alone or in combination, they failed to keep the package being removed, prior to the package being removed from the transport vehicle, information being sent to prepare

[00:16:29] Speaker 01:
So the whole advance had to do with preparing it for the new vehicle.

[00:16:35] Speaker 03:
That was certainly the focus of their argument, but each and every time they would take this whole long phrase as being the reasons for allowance.

[00:16:44] Speaker 03:
And again, when you turn to the actual reasons for allowance that the examiner gave, the examiner bolded and underlined the

[00:16:53] Speaker 03:
Entire phrase not just before another document It really then turns back to exactly what your honor said is at the end of the day it doesn't matter why It was amended what matters is did the scope of the claims change during re-examination?

[00:17:15] Speaker 01:
So if you look at the abstract, I know it's not supposed to mean a lot, but it is indicative.

[00:17:22] Speaker 01:
I mean, the abstract itself makes it clear that the only thing that they're really talking about being the novel invention here has to do with computerized generation of a loading manifest.

[00:17:35] Speaker 03:
Of course, let's first start with a little bit of history here, Your Honor.

[00:17:38] Speaker 03:
Back in the time this application was filed, we still had 37 CFR.

[00:17:42] Speaker 03:
I think it's 1.71.

[00:17:44] Speaker 03:
that said we don't use the abstract for construing claims.

[00:17:51] Speaker 03:
But even that's still not a statement of this is the only thing the invention does.

[00:17:56] Speaker 03:
If you don't have load planning software, you're not practicing our invention.

[00:18:02] Speaker 03:
That's really what we're talking about here is disavowal.

[00:18:05] Speaker 03:
Does the specification teach us that unless we have load planning software, you're not practicing my invention?

[00:18:12] Speaker 03:
And the best place to look for that outside the claims, of course,

[00:18:15] Speaker 03:
is the summary of the invention.

[00:18:18] Speaker 03:
The summary of the invention says exactly the opposite.

[00:18:21] Speaker 03:
The first sentence just says broadly what you get from reading this patent as a whole, which is that the invention is about this part of having the truck drivers wirelessly transmit in the bill of lading.

[00:18:33] Speaker 03:
The background acknowledges that load planning software is known.

[00:18:36] Speaker 03:
So the alleged invention is about getting the information into the computer system earlier.

[00:18:43] Speaker 03:
But then the summer of the invention says, we then send that load planning data to a load planner or to load planning software.

[00:18:53] Speaker 03:
And that's where the district court correctly recognized that's a clear statement that load planning software is merely optional.

[00:19:00] Speaker 01:
How do you respond to your friend's argument that to the extent you set it to a load planner or to any manual use, that it's only for purposes of extracting the data, but then you still have to input it into the computer to generate the advanced loading manual?

[00:19:16] Speaker 03:
My answer is that's simply not what the specification states.

[00:19:20] Speaker 03:
And certainly both parties have spent a lot of time talking about those paragraphs in column five and column six of the specification.

[00:19:28] Speaker 03:
where it talks about extracting the data.

[00:19:30] Speaker 03:
And I simply urge your honors to read that yourselves, because I think you will agree with the district court and with us that RNL's counsel is not correctly representing what it says.

[00:19:42] Speaker 03:
Because what it talks about, it says you can do this both ways.

[00:19:45] Speaker 03:
You can extract the data either via OCR or manually.

[00:19:49] Speaker 03:
But then it goes on to say what you do in both instances.

[00:19:52] Speaker 03:
And each time, it says, well, you can do one of two things.

[00:19:55] Speaker 03:
You can send it to a load planner or to load planning software.

[00:20:01] Speaker 03:
The first one, the one that relates to OCR, is the one that is right bridges columns five and column six.

[00:20:07] Speaker 03:
And the critical language is right at the top of column six, starts at line two.

[00:20:11] Speaker 03:
It says, as an additional time saver, the load planning information could be transmitted

[00:20:18] Speaker 03:
to a computer, and then the next sentence says, this computer would run load planning software.

[00:20:23] Speaker 03:
So it's saying could, not must, could.

[00:20:26] Speaker 03:
And that's only as an additional time saver.

[00:20:28] Speaker 03:
Then it goes on to talk about the manual option.

[00:20:31] Speaker 03:
And let me make a distinction, because counsel seems to still try to mix these two things up in your mind.

[00:20:37] Speaker 03:
He says, oh, but then it says the load planner would extract the information.

[00:20:41] Speaker 03:
It doesn't say that.

[00:20:41] Speaker 03:
It says a data entry clerk would extract the information.

[00:20:46] Speaker 03:
And then the data entry clerk who extracts information, types it in, it says it can go to load planning software.

[00:20:52] Speaker 03:
But again, another very critical sentence.

[00:20:54] Speaker 03:
It says, this is at column 6, line 11, if a computerized load planning system was not utilized, a paper copy of the electronic bill of lading would be printed and given to the load planner.

[00:21:08] Speaker 03:
Again, it could not be clearer and express recognition

[00:21:11] Speaker 03:
in this specification that load planning software is not necessary.

[00:21:17] Speaker 03:
And then a couple of lines later you have the sentence that you discussed about this could be a fully automatic system or simply a system for transmitting paper.

[00:21:24] Speaker 03:
Again, council says that that relates only to the extraction process.

[00:21:28] Speaker 01:
What about right after that sentence that you quote, the beginning of the next paragraph says, the billing information extracted would be transmitted or inputted into a standard billing and accounting software package, which could automatically invoice the shipper so that we know there'll be a shorter time period.

[00:21:45] Speaker 01:
Doesn't that imply again that we're talking about extraction?

[00:21:49] Speaker 03:
Well, there's two things going on here.

[00:21:52] Speaker 03:
There's extracting billing information and extracting

[00:21:55] Speaker 03:
load planning information.

[00:21:56] Speaker 03:
Certainly it is still talking about the overall process of extracting information and then what you do with it.

[00:22:03] Speaker 03:
But there's no basis to conclude that later in that paragraph when it says fully automatic system versus just transmitting paper around, but that's limited to the extraction procedure.

[00:22:15] Speaker 03:
So again, and let's put it this way, at the end of the day for disavowal, this court's case law says it has to be clear and unambiguous in order for the disavowal to apply.

[00:22:26] Speaker 03:
The Pat D's are the one in this case who are seeking to construe the original claim term, loading manifest, contrary to its ordinary meaning.

[00:22:34] Speaker 03:
We all know that the ordinary meaning of a loading manifest is not a loading manifest that's generated only in a particular way.

[00:22:41] Speaker 03:
And there's nothing in the claim language that tells us how that loading manifest needs to be generated.

[00:22:47] Speaker 03:
So we're talking about disavowal.

[00:22:49] Speaker 03:
It has to be clear and unambiguous.

[00:22:52] Speaker 03:
This is not it.

[00:22:52] Speaker 03:
It's exactly the opposite.

[00:22:54] Speaker 03:
It's telling us pretty clearly that you cannot, you don't need to use load planning software under this invention.

[00:23:03] Speaker 03:
I also want to address the argument that, well, the express definition that applies to advanced loading manifest

[00:23:11] Speaker 03:
It also applies to loading manifest because the specification uses those two terms synonymously.

[00:23:17] Speaker 03:
Your Honor, it does not use the two terms synonymously.

[00:23:21] Speaker 03:
It uses them exactly how you would expect us to use them, which is in a description of ever narrowing terminology.

[00:23:29] Speaker 03:
An advanced loading manifest is a type of loading manifest.

[00:23:34] Speaker 03:
A loading manifest is a type of a manifest.

[00:23:37] Speaker 03:
It's how we ordinarily use the English language.

[00:23:40] Speaker 03:
When you read the few instances of loading manifest and the specification, there's actually only two of them, one in figure six and one in the written language of the specification, you see in both instances they're using it exactly in that sense of loading manifest being broader than advanced loading manifest.

[00:24:04] Speaker 03:
My time's running a little short, but let me talk about the one in particular in column 13, because it makes perfect sense.

[00:24:11] Speaker 03:
The specification is talking about a remote facility requesting data from a remote processor.

[00:24:19] Speaker 03:
And it says, well, the remote facility can request a loading manifest from the remote processor.

[00:24:26] Speaker 03:
And in response to that request, the remote processor extracts loan planning data, generates

[00:24:34] Speaker 03:
an advanced loading manifest and returns it.

[00:24:38] Speaker 03:
And of course, RNL says, aha, that shows that they're using those two terms synonymously.

[00:24:43] Speaker 03:
They're not at all, your honor.

[00:24:44] Speaker 03:
It's exactly what you would expect.

[00:24:46] Speaker 03:
This facility doesn't care how their loading manifest is generated.

[00:24:52] Speaker 03:
They just want a loading manifest.

[00:24:53] Speaker 03:
So you wouldn't say advanced loading manifest there.

[00:24:55] Speaker 03:
you would say they request a loading manifest.

[00:24:57] Speaker 01:
Well look at column 12 where they refer to figure 6 and figure 740 and figure 6 is described as an advanced loading manifest.

[00:25:07] Speaker 01:
So you're saying that's not, they're not comparing

[00:25:11] Speaker 01:
equating the two?

[00:25:12] Speaker 03:
In figure six the only thing they have is the written text of the specification says at this step it generates an advanced loading manifest and when you look to the box in figure six all it says is generate loading manifest.

[00:25:28] Speaker 03:
But again that is consistent with the idea that an advanced loading manifest is a type of loading manifest.

[00:25:38] Speaker 03:
So there's nothing incorrect about the figures, even when these two terms have different sculpts.

[00:25:43] Speaker 03:
Again, there's limited room to put terminology in patent drawings, so it's also kind of expected that you wouldn't see too many words in a patent drawing.

[00:25:52] Speaker 03:
But the mere omission of that word from the drawings doesn't show that they're synonymous.

[00:25:58] Speaker 03:
It's consistent with one being broader than the other.

[00:26:03] Speaker 03:
The last point I want to touch on before my time runs out is this point of the two prior claim interpretation procedures that took place in the district court.

[00:26:16] Speaker 03:
The Pitt, Ohio one could not be clearer.

[00:26:20] Speaker 03:
Pitt, Ohio expressly put the limitation in the proposed construction of loading manifest that the patentee now wants to be read into the claims.

[00:26:31] Speaker 03:
And they fought it.

[00:26:33] Speaker 03:
They responded with a very carefully crafted construction of their own that differed really in two ways.

[00:26:39] Speaker 03:
And we have the two constructions in our brief.

[00:26:42] Speaker 03:
But they tried to track language as much as they could.

[00:26:44] Speaker 03:
There's two striking differences.

[00:26:47] Speaker 03:
One is this very issue of generated using load planning software.

[00:26:53] Speaker 01:
Is there anything in the Penn Ohio hearing or briefing that would rise to a level of judicial estoppel where they said,

[00:27:01] Speaker 01:
Absolutely, this limitation is not necessary.

[00:27:03] Speaker 03:
There's no estoppel here, Your Honor.

[00:27:06] Speaker 03:
Really, what it goes to show is that this is an after-the-fact generation of a proposed construction by R&L that if it was really the case, they would have said it earlier.

[00:27:18] Speaker 03:
It was only when they realized they had an intervening rights problem, they amended their claim right into an express definition of the specification,

[00:27:26] Speaker 03:
They said, oh, well, wait a minute.

[00:27:28] Speaker 03:
We've got a problem here.

[00:27:29] Speaker 03:
Let's go back and try to redefine what this original claim term meant.

[00:27:34] Speaker 03:
What the original claim constructions show is that that was just a mere afterthought.

[00:27:39] Speaker 00:
OK.

[00:27:40] Speaker 00:
Thank you, Mr. Vandenberg.

[00:27:50] Speaker 04:
Thank you, Your Honor.

[00:27:53] Speaker 04:
Let me address the PIT Ohio specifically.

[00:27:57] Speaker 04:
In the PIT Ohio claim construction process, R&L argued to the trial court implicitly, and one could call it explicitly,

[00:28:06] Speaker 04:
that advanced loading manifest and loading manifest were, in fact, synonymous.

[00:28:10] Speaker 04:
When we opposed the Pitt-Ohio definition of loading manifest, because of the limitations at Pitt-Ohio, we believed in proper limitations Pitt-Ohio placed on that term, we cited the trial court to the 25 definitions of advanced loading manifest to inform the court as to what exactly the definition of what a loading manifest is.

[00:28:32] Speaker 04:
So in the Pitt, Ohio case, we did not object to load planning software as a concept for how it is generated.

[00:28:39] Speaker 04:
We objected to the fact that it didn't need to be placed in the question of what is a loading manifest in the course of this particular proceeding.

[00:28:47] Speaker 04:
Now, with respect to the two, let me point out one other thing.

[00:28:54] Speaker 04:
Qualcomm was amongst a group of defendants at the time involved in a multi-district litigation.

[00:29:02] Speaker 04:
one of their own in the claim construction process took the position that a loading manifest is something that is generated by using load planning software, exactly like an advanced loading manifest.

[00:29:14] Speaker 04:
If Qualcomm truly believed that that is incorrect, that that was not the right, that's not a correct interpretation of how you generate an advanced load, a loading manifest, and they're not synonymous in that respect, we should have heard in front of the district court in the claim construction process in which Qualcomm participated to say, hey, look,

[00:29:32] Speaker 04:
People out there might interpret a loading manifest to be generated by load planning software.

[00:29:39] Speaker 04:
We don't think that's the case, judged as ambiguous, construed how a loading manifest is generated.

[00:29:45] Speaker 04:
Qualcomm didn't make that statement.

[00:29:47] Speaker 04:
They sat quietly.

[00:29:49] Speaker 04:
They knew one of their own had taken that exact position.

[00:29:52] Speaker 04:
They did not then suggest in the district court that that needed to be a part of the construction.

[00:29:57] Speaker 04:
Why?

[00:29:57] Speaker 04:
We can infer from that silence that Qualcomm agreed with Pitt Ohio at the time that a loading manifest is one generated with load planning software.

[00:30:06] Speaker 04:
And only now are they attempting to reverse that particular position because it serves ultimately their best interests.

[00:30:13] Speaker 04:
Now, with respect to the particular quotes in the written description that counsel referred to,

[00:30:20] Speaker 04:
I would only ask the court to respectfully look back into the written description and you will see that they are all referring to extraction.

[00:30:28] Speaker 04:
None of those quotes refer at all to the generation of a loading manifest process.

[00:30:35] Speaker 04:
That's the part of the process that's the key here.

[00:30:37] Speaker 04:
I submit to the court respectfully that we cannot answer how a loading manifest is generated by looking at the extraction part

[00:30:45] Speaker 04:
of this particular patented process.

[00:30:47] Speaker 04:
We must look for the loading manifest part, and in that instance, there's only one description, and that description is that a loading manifest, like an advanced loading manifest, is generated using load planning software.

[00:30:58] Speaker 04:
And as I conclude, Your Honor, I want to conclude with maybe the most important point.

[00:31:04] Speaker 04:
The ability of a patentee to define a characteristic of a claim term by implication is an important tool

[00:31:12] Speaker 04:
and one that I respectfully suggest should be protected by this court.

[00:31:17] Speaker 04:
That principle makes this an important case.

[00:31:20] Speaker 04:
I believe that this court will be hard pressed to find a stronger example of a patentee defining a claim term by implication than the case we have here.

[00:31:32] Speaker 04:
Here, a patentee expressly defined how a thing, an advanced loading manifest, is generated.

[00:31:40] Speaker 04:
The patentee then used a claimed term, loading manifest, interchangeably with that expressly defined thing.

[00:31:50] Speaker 04:
The patentee went on to repeatedly and consistently describe the term loading manifest in the specification as necessarily being generated by load planning software.

[00:32:03] Speaker 04:
And we have unrefuted evidence in the record that the public is on notice and understands

[00:32:09] Speaker 04:
This implicitly defined characteristic of a loading manifest in the 078 patent.

[00:32:15] Speaker 04:
Pitt Ohio, a competitor of RNL, recognized that a loading manifest is generated using load planning software.

[00:32:22] Speaker 04:
Each and every aspect of definition by implication is met here.

[00:32:28] Speaker 04:
I respectfully submit to the court that if this court's precedent that a patentee can define a characteristic of a claim term by implication is to have meaning going forward, this court should fine for our health care.

[00:32:43] Speaker 00:
Thank you for your time.