[00:00:00] Speaker 05: Port Dimension versus the Coleman Company. [00:00:33] Speaker 05: Please proceed. [00:00:36] Speaker 05: Tell me how to say your name. [00:00:37] Speaker 05: Ennis? [00:00:38] Speaker 01: Ennis. [00:00:39] Speaker 01: Ennis. [00:00:40] Speaker 01: Mr. Ennis. [00:00:41] Speaker 01: Good morning, your honors, and may it please the court. [00:00:44] Speaker 01: There are two principal issues that are involved in this appeal. [00:00:47] Speaker 01: And the first, of course, is the district court's claim construction of the D714 patent. [00:00:52] Speaker 01: The second issue relates to the judge's decision to strike an expert, the testimony of Peter Bresler, [00:01:00] Speaker 01: An industrial designer with vast experience in industrial design, over four decades of experience in the field. [00:01:10] Speaker 05: But industrial design is a really, really big field. [00:01:13] Speaker 05: I mean, he could be designing the inside of a power plant, right? [00:01:16] Speaker 05: That is possible. [00:01:17] Speaker 05: Right? [00:01:17] Speaker 05: So that's a big, far cry different from designing floaties. [00:01:21] Speaker 05: This is actually a case I completely grasp the technology in, even though it's a design bug. [00:01:28] Speaker 01: These two issues, Your Honors, [00:01:30] Speaker 01: They are not dependent upon one another. [00:01:32] Speaker 01: The decision in one is not dependent upon the other, but they both are infected by the same problem, and that is that the district court myopically focused on the title of the design patent itself and then defined or constructed that title as it applies to commercial flotation devices themselves. [00:01:55] Speaker 00: Doesn't the claim itself, though, say [00:01:59] Speaker 00: the ornamental design for a personal flotation device as shown and described. [00:02:04] Speaker 00: So the claim itself refers to the personal flotation device. [00:02:07] Speaker 00: You don't even have to look to the title. [00:02:11] Speaker 01: No. [00:02:12] Speaker 01: It does, Your Honor, say the ornamental design of the personal flotation device. [00:02:19] Speaker 01: The NPEP directs us that a design patent's title does not define its scope. [00:02:26] Speaker 01: That's at 1504.04. [00:02:29] Speaker 01: Just after that, the NPEP instructs an applicant that you are required to identify in the claim the same thing that you identified as the title. [00:02:42] Speaker 01: If you're going to suggest then that if the title ends up in the claim, that that defines the claim, right? [00:02:52] Speaker 01: Doesn't that swallow the rule? [00:02:54] Speaker 01: It does. [00:02:54] Speaker 01: It swallows the rule that says the title can't define scope of the claim. [00:02:58] Speaker 01: Therefore, simply by placing the word title in the claim, that doesn't define its scope. [00:03:05] Speaker 01: The scope of the design patent itself is defined by the drawings and what's depicted in the drawings. [00:03:11] Speaker 02: Even if we agree that the functional aspects that make this a personal flotation device have to be not considered in the claim construction, [00:03:22] Speaker 02: Doesn't our precedent say you don't get rid of them altogether? [00:03:25] Speaker 02: You still look at the ornamental aspects of them. [00:03:28] Speaker 01: That's correct, Your Honor. [00:03:29] Speaker 01: And perhaps the best example of that's in the recent decision of Ethicon endosurgery. [00:03:36] Speaker 01: And in that case, particularly, the issue of claim construction was a bar. [00:03:41] Speaker 01: And the lower court there had found each and every aspect of the subject claim functional. [00:03:50] Speaker 01: And therefore? [00:03:51] Speaker 02: So in your case, take for example, I guess the round things that go over the arms. [00:03:56] Speaker 01: Yes, sir. [00:03:57] Speaker 02: They're functional in a certain sense. [00:04:00] Speaker 02: But they also can have design aspects in the way they're shaped, their size, their form, and the like. [00:04:07] Speaker 02: So we have to look at the design aspects, even if there is a certain functional device aspect of them as well. [00:04:16] Speaker 01: That's exactly what the Ethicon endosurgery case says. [00:04:19] Speaker 01: That's true. [00:04:20] Speaker 01: And that is simply a regurgitation that this court's president first put into it. [00:04:24] Speaker 05: Because if we didn't do that, like every bottle which is designed patented, you would just exclude the whole bottle because it's functional and that it holds the fluid inside, right? [00:04:32] Speaker 01: That's correct. [00:04:34] Speaker 01: So one of the teachings, I guess, of Apple versus Samsung also, there was a request there to make a global rule [00:04:46] Speaker 01: And the court rejected the concept of the global rule. [00:04:50] Speaker 01: But nonetheless, the import of construction is to identify the non-functional aspects of the design. [00:04:58] Speaker 01: It didn't say you have to identify the functional aspects. [00:05:01] Speaker 01: By using the term accept in her claim construction, that's exactly what the district court did. [00:05:08] Speaker 01: She didn't endeavor to identify the ornamental aspects of those things that she found had some function. [00:05:15] Speaker 01: and said what she did was if it had some function, it was eliminated from the scope of the claim and could not be considered. [00:05:22] Speaker 00: Is functionality, is that a fact question that should be given deference? [00:05:28] Speaker 01: It's a great question. [00:05:30] Speaker 01: It depends upon what it is that is being considered and if the information considered is competent evidence for the purpose. [00:05:37] Speaker 01: The ultimate issue of claim construction, of course, is an issue that has no deference. [00:05:42] Speaker 01: It's reviewed de novo. [00:05:43] Speaker 01: And if there are [00:05:45] Speaker 01: legal errors that were committed during claim construction and then subsequent factual findings based upon those legal errors, the court also owes those findings no deference either. [00:05:57] Speaker 01: That's pursuant to the Panduit decision. [00:05:59] Speaker 00: But under CAVA, does that change anything here? [00:06:03] Speaker 01: I don't think so, Your Honor. [00:06:05] Speaker 01: In fact, I think that in subsequent cases like Shire, the court has been careful to identify that [00:06:14] Speaker 01: you don't need to focus on those elements, that if you can define the claim without resort to extrinsic material and findings relating to that are not to be considered or of no relevance to the court. [00:06:34] Speaker 01: The dispute here truly isn't about the proper construction of the words personal flotation device. [00:06:42] Speaker 01: Personal flotation device, as we indicated, isn't a term or an element of the patent's claim. [00:06:48] Speaker 01: The claim is, as stated in the drawings, personal flotation device is the title, the title of the patent itself. [00:06:55] Speaker 01: And personal flotation device certainly is not the use or purpose of the claimed article. [00:07:02] Speaker 01: That use or purpose is to provide buoyancy to the wearer while they're in the water. [00:07:07] Speaker 01: That is to float or act as a flotation aid. [00:07:12] Speaker 01: The district court imposed requirements of 46 CFR part 160 as limitations on the underlying article of manufacture and on the qualifications of any what she called suitable or viable alternative designs. [00:07:30] Speaker 01: And I think that the root cause of the district court's error was the determination that the function of the article was personal flotation device. [00:07:38] Speaker 01: Well, personal flotation device is not a function. [00:07:41] Speaker 01: It's a thing. [00:07:42] Speaker 01: the article of manufacture itself. [00:07:46] Speaker 01: An article's function isn't determined by the title of the design patent. [00:07:51] Speaker 01: It's determined by what the thing does, what is its intended use. [00:07:57] Speaker 00: If we agree with you that the district court aired below in eliminating certain elements of the design and therefore had the wrong claim construction, how should the case be treated? [00:08:12] Speaker 01: Go ahead. [00:08:12] Speaker 01: I'm sorry? [00:08:13] Speaker 01: Go ahead. [00:08:14] Speaker 01: I apologize for interrupting. [00:08:17] Speaker 01: Well, I think that the court can decide this matter on the evidence that's before it. [00:08:22] Speaker 01: If the court can also reverse and remand back for further proceedings consistent, is that the question? [00:08:30] Speaker 00: I guess the question is, would we remand for a new claim construction? [00:08:34] Speaker 00: Will we construe the claim? [00:08:36] Speaker 00: There's been a finding of non-infringement here, right? [00:08:40] Speaker 01: That's true. [00:08:41] Speaker 01: I think that your honors could certainly reverse here and make its own decision based upon the claim construction. [00:08:49] Speaker 00: So you're suggesting when you say reverse here, you're saying reverse the finding of non-infringement and remand? [00:08:56] Speaker 01: Well, the non-infringement was based solely upon the claim construction. [00:09:00] Speaker 01: It was stipulated. [00:09:03] Speaker 01: That's true. [00:09:03] Speaker 05: It wasn't even a finding. [00:09:04] Speaker 01: That's correct. [00:09:05] Speaker 01: Once the court made its claim construction, it was clear based upon that construction that there could be no infringement. [00:09:11] Speaker 01: So if the claim construction is wrong, the judgment would go away. [00:09:18] Speaker 00: The only thing we really could do is remand. [00:09:23] Speaker 01: I think that the courts can decide this issue on the record before. [00:09:28] Speaker 01: The court also would be the infringement issue. [00:09:31] Speaker 01: No, no, no, not the infringement issue. [00:09:33] Speaker 01: I'm sorry, the claim construction. [00:09:34] Speaker 01: You could construe the claim right here and send the case back for further proceedings. [00:09:38] Speaker 02: You think we can reverse the claim construction and direct a new claim construction? [00:09:42] Speaker 01: Yes, I do, based upon the record that's before. [00:09:44] Speaker 05: So remand is still what has to be done, even if we completely agree with you on the claim construction. [00:09:50] Speaker 01: Yes, certainly for purposes of infringement and further questioning of infidelity. [00:09:55] Speaker 01: I'm sorry, I misunderstood your question. [00:09:58] Speaker 01: I want to spend a brief amount of time on the court's decision to strike the testimony of Mr. Braslin. [00:10:10] Speaker 01: I think that there were two issues. [00:10:12] Speaker 01: Again, the court myopically focused on this term personal flotation device to title and said that that didn't necessarily define the pertinent art. [00:10:21] Speaker 01: The court misread this court's teaching in Sunday. [00:10:25] Speaker 01: Sundance is a very interesting case where we had a lawyer who was actually serving as a testifier. [00:10:30] Speaker 02: But even putting this all aside, I mean, your expert admitted he had no expertise in actually developing these kind of wearable flotation devices, right? [00:10:41] Speaker 02: He's in industrial design. [00:10:43] Speaker 02: He does a lot of other kind of things. [00:10:45] Speaker 02: It is only [00:10:47] Speaker 02: I guess relevant experience was he owns a boat or something? [00:10:51] Speaker 01: No, he's designed boats. [00:10:53] Speaker 01: He's also designed scuba gear. [00:10:54] Speaker 01: He's designed all kinds of buoyant materials. [00:10:57] Speaker 02: Sure. [00:10:58] Speaker 02: And so it probably wouldn't have been an abuse of discretion to let that in. [00:11:01] Speaker 02: But why isn't it an abuse of discretion to exclude it when he specifically said, I have never in my professional capacity defined wearable flotation devices? [00:11:10] Speaker 00: He said specifically, I'm not an expert on personal flotation devices. [00:11:14] Speaker 01: On personal flotation devices, that's true, when referring back to the title of the patent. [00:11:21] Speaker 01: In Sundance, the court recognized that there was a difference between the pertinent art for defining the pertinent art as the field of tarps and covers, although the patent there was directed to the narrower [00:11:39] Speaker 01: rectangular segmented covering systems, much more narrow. [00:11:44] Speaker 01: So it was the district court failed to follow the teachings of Sundance that led to the error. [00:11:52] Speaker 01: I will reserve the rest of my time for review. [00:11:54] Speaker 05: Very good. [00:11:57] Speaker 05: Tell me how to say your name, counsel. [00:11:59] Speaker 03: Yes, Ms. [00:12:00] Speaker 03: Mikulka. [00:12:00] Speaker 03: Yuri Mikulka? [00:12:01] Speaker 05: Mikulka. [00:12:02] Speaker 03: Okay, Ms. [00:12:02] Speaker 03: Mikulka, please proceed. [00:12:04] Speaker 03: I'm counsel for Appellee Sport Dimension. [00:12:07] Speaker 03: Thank you for your time today. [00:12:09] Speaker 03: I would like to respond to Mr. Annis's position with respect to the patent title that being injected into the claim construction. [00:12:19] Speaker 03: This is an interesting point because as Judge Stoll pointed out, personal flotation device is a term that's used in the claim description as well. [00:12:29] Speaker 03: And in fact, Mr. Annis claims that it should not have been injected in the claim construction [00:12:35] Speaker 03: But that is the proposed claim construction that was requested by Coleman. [00:12:41] Speaker 03: In fact, they requested. [00:12:42] Speaker 02: I don't understand how this matters. [00:12:44] Speaker 02: Because even if we conclude that we can talk about whether these are personal flotation devices and exclude any kind of functional aspects, you still can't just lop off whole parts that might have both functional and design elements. [00:13:00] Speaker 02: I mean, that's what Ethicon says, isn't it? [00:13:03] Speaker 03: Are you referring to Judge Hughes on the actual claim construction itself? [00:13:07] Speaker 02: Yeah. [00:13:07] Speaker 02: The district court said, don't consider the, I guess, the round floaty parts altogether, right? [00:13:15] Speaker 03: The arm bands. [00:13:16] Speaker 03: Very technical. [00:13:17] Speaker 02: Right. [00:13:18] Speaker 03: Correct. [00:13:18] Speaker 02: She said you can't consider those. [00:13:20] Speaker 03: In the court's claim construction, the court identified functional and non-functional features. [00:13:27] Speaker 03: That is consistent with odds on. [00:13:30] Speaker 02: Yes. [00:13:32] Speaker 02: Are you saying that there is no design element at all to the armbands? [00:13:39] Speaker 03: The court found that there weren't any. [00:13:42] Speaker 03: The court found that the armbands were ornamental, non-ornamental, that they were functional and dictated by function. [00:13:49] Speaker 03: Why? [00:13:50] Speaker 03: The armbands, these round thingies, [00:13:52] Speaker 02: But see, this is the error in determining that a certain structure has function. [00:13:57] Speaker 02: Ethicon says, even if it has function, there may still be ornamental aspects to it, and that you have to be able to consider that. [00:14:05] Speaker 02: And the best example of that is the picture. [00:14:08] Speaker 02: I mean, you could have any kind of number of designs for these arm bands. [00:14:12] Speaker 02: They don't have to be round cylinders. [00:14:14] Speaker 02: They could be, I've seen some where they're like four squares put together. [00:14:19] Speaker 02: You know, they could be longer, they could be shorter, they can do all kinds of straps, although that might be functional. [00:14:25] Speaker 02: But those are ornamental aspects, and you can't just exclude the entire structure because you conclude that it has some function. [00:14:32] Speaker 02: And that's what she did, isn't it? [00:14:33] Speaker 03: Your Honor, let me explain that point. [00:14:35] Speaker 03: Those arguments were made before Judge O'Connell [00:14:38] Speaker 03: And what Giorgio Cano decided was that you needed the armbands shaped the way it was, which was tapered and round for it to function as a personal flotation device. [00:14:49] Speaker 02: But that just seems wrong. [00:14:51] Speaker 02: There was no evidence contradicting it. [00:14:55] Speaker 03: There was no evidence contradicting it. [00:14:58] Speaker 02: But the problem is she's adding in things that aren't in the design patent. [00:15:02] Speaker 02: The design patent should be, I think we said in Egyptian goddess mostly, [00:15:07] Speaker 02: You should just look at the picture. [00:15:08] Speaker 02: And there's nothing in the picture that says this is completely functional. [00:15:14] Speaker 03: What the judge did was, and the district court did, was looked at the article manufacturer. [00:15:19] Speaker 03: In this case, it was a personal flotation device. [00:15:21] Speaker 03: There's no dispute about that. [00:15:24] Speaker 03: And for a personal flotation device to function as intended, it has certain requirements, mandatory safety requirements. [00:15:32] Speaker 00: Who would agree that Apple versus Samsung says that you can't just eliminate whole elements [00:15:37] Speaker 03: I don't believe Apple versus Samsung says that. [00:15:40] Speaker 03: In fact, I think Apple versus Samsung says that the Richardson case does not say that, does not state a rule that a district court has to eliminate entire elements from the crime scope. [00:15:51] Speaker 00: I think that's what Apple versus Samsung says. [00:15:53] Speaker 00: Well, what about odds on? [00:15:53] Speaker 00: In odds on, you said that this case is similar to odds on or what the district court here was consistent with odds on. [00:15:59] Speaker 00: But in odds on, [00:16:01] Speaker 00: What they said is that the football is functional, I guess, and the fin is functional. [00:16:05] Speaker 00: You've got to agree that those have functional aspects. [00:16:08] Speaker 00: But they didn't just completely eliminate any particular functional elements of the rocket football. [00:16:14] Speaker 00: And instead, this court said, you've got to look at the overall design. [00:16:19] Speaker 00: You don't just eliminate parts. [00:16:21] Speaker 00: That's correct. [00:16:22] Speaker 00: And so here, if you were following odds on, you wouldn't eliminate the arm bands. [00:16:29] Speaker 00: you would look at the arm bands in combination with the torso portion in combination with the second arm band. [00:16:37] Speaker 03: And that's exactly what the court did in this case. [00:16:39] Speaker 00: No. [00:16:40] Speaker 00: I think the court eliminated the arm bands. [00:16:42] Speaker 03: You mean in the claim construction itself? [00:16:43] Speaker 03: Yes. [00:16:43] Speaker 03: So if you read the claim construction, the court said ornamental design of a personal flotation device except the following features are functional. [00:16:54] Speaker 03: So the court looked at those features in combination of the overall design. [00:16:59] Speaker 03: And that's what the court did in PHG case, in odds-in. [00:17:03] Speaker 03: And that is a typical way that the courts, in considering functionality, look at whether something is functional. [00:17:09] Speaker 03: They look at the features, and they look at it in combination of the overall impression of the design. [00:17:16] Speaker 00: But even after they determine that something has functional aspects, they don't just lop off that element saying this is functional. [00:17:22] Speaker 00: I don't know of any cases that have done that other than what the district court did here. [00:17:27] Speaker 03: Actually, there are some cases where functional aspects were not included at all. [00:17:31] Speaker 03: So for instance, in the Odson case, if you look at the description of the claim construction, it's very detailed. [00:17:39] Speaker 03: And what the court was trying to do there was differentiate between a tossing ball and a ball that tosses like a football but flies faster. [00:17:51] Speaker 03: That was a distinction the court made in its claim construction. [00:17:54] Speaker 03: It was a very detailed claim construction to ensure that the court captured the ornamental aspect of it and the functional aspect. [00:18:02] Speaker 00: But it also said it looked at the overall rocket-like appearance of the design. [00:18:06] Speaker 00: It didn't eliminate the fin or the football. [00:18:08] Speaker 00: It didn't eliminate, but emphasize what the patent scope is. [00:18:12] Speaker 00: That would not have been appropriate to do here. [00:18:15] Speaker 00: Instead of eliminating the art bands, talking about the overall [00:18:19] Speaker 00: design of the whole design of the PFD? [00:18:25] Speaker 03: I think the court was correct in determining that the armbands itself was functional. [00:18:30] Speaker 03: There was no ornamental aspect of it. [00:18:32] Speaker 03: And the reason is, and Judge Hughes might be right, there might be other designs out there that could have been used, but there was no such evidence before the court. [00:18:42] Speaker 03: The only alternative designs before the court... Why does there have to be evidence? [00:18:46] Speaker 02: I mean, the evidence is [00:18:47] Speaker 02: they made a particular design choice in the picture they showed. [00:18:51] Speaker 02: And unless it's purely functional, and it has to be shaped that way, and it only has a functional result, then the rest of it's a design. [00:19:01] Speaker 03: That's absolutely correct, Your Honor. [00:19:03] Speaker 03: That was the only way that the armbands fit. [00:19:05] Speaker 02: But that's not true. [00:19:07] Speaker 02: I mean, it's not in the record, but we all know that the armband doesn't have to be in this specific circular shape. [00:19:13] Speaker 02: in the specific size it is to be functional as a flotation device. [00:19:17] Speaker 03: The size was not issue here, but the shape was. [00:19:20] Speaker 03: And the only evidence before the court, testimony of the inventor, testimony of the only expert that testified, as well as the utility patent application stated that the armbands had to be shaped this way in a way that was tapered and round. [00:19:38] Speaker 03: And the reason is this. [00:19:43] Speaker 03: Let's assume you have a stack of documents, and when you fold the stack of documents in a circle, it becomes tapered. [00:19:51] Speaker 03: That's the way that these arm bands are manufactured. [00:19:55] Speaker 05: The evidence says it has to be round and tapered. [00:20:00] Speaker 05: Yes. [00:20:00] Speaker 05: It has to be functioned. [00:20:01] Speaker 05: In order to function. [00:20:03] Speaker 05: Yes. [00:20:03] Speaker 05: My goodness, I've had my children in the pool with these little ones with wings on them. [00:20:07] Speaker 05: They actually have wings. [00:20:08] Speaker 05: My daughter loves them. [00:20:10] Speaker 05: They're not round and tapered. [00:20:11] Speaker 05: I must be a terrible mommy, because it must not be functioning properly to keep her afloat. [00:20:17] Speaker 03: Your Honor, I'm aware of those as well, and they are not personal flotation devices. [00:20:22] Speaker 02: And if you look at my personal- But you can't be possibly saying that the only way it's a personal flotation device that actually works is that it is this round circular tube. [00:20:35] Speaker 03: It has to fit securely. [00:20:37] Speaker 03: There are many requirements, safety requirements. [00:20:41] Speaker 04: Why can't it be square, in shape, and still function, to flow? [00:20:44] Speaker 00: May I explain? [00:20:45] Speaker 00: What about the pictures on page 42 of the blue brief, for example? [00:20:49] Speaker 00: Just to give some context. [00:20:50] Speaker 00: Are those the alternative proposed? [00:20:52] Speaker 00: These are the alternatives with Kerner and Westman. [00:20:58] Speaker 00: Page 42, Your Honor. [00:20:59] Speaker 00: 42 of the blue brief. [00:21:06] Speaker 03: These are Kierner and Westman. [00:21:09] Speaker 03: Is that right, Your Honor? [00:21:10] Speaker 03: Yes. [00:21:11] Speaker 03: So these are not personal flotation devices. [00:21:13] Speaker 03: It was made clear that the only evidence before the court was testimony of Ms. [00:21:18] Speaker 03: Ballesteri on this point and the utility patent application, which made clear that these are not for... Well, then why the heck would you stick your children in these things if they're not to keep them afloat? [00:21:27] Speaker 04: I mean, these are not pretty. [00:21:29] Speaker 04: They're not decorative. [00:21:30] Speaker 04: They don't have little wings. [00:21:33] Speaker 04: What is the point of these things if they're not floatation devices? [00:21:36] Speaker 03: Judge Moore, to be clear, these are not personal floatation devices. [00:21:40] Speaker 03: Yes. [00:21:40] Speaker 03: How? [00:21:41] Speaker 03: They have a special meaning in the industry. [00:21:44] Speaker 03: Personal floatation device is something that is mandated. [00:21:48] Speaker 03: It's by US Coast Guard standards, by federal regulation. [00:21:52] Speaker 03: Why? [00:21:53] Speaker 03: Because it's a life-saving device. [00:21:54] Speaker 03: It's not a swim aid. [00:21:56] Speaker 03: It's not a bathing aid, which these are. [00:21:58] Speaker 03: It is a life-saving advice. [00:22:01] Speaker 03: device when thrown into the water in an emergency situation, it saves you. [00:22:05] Speaker 03: And that's why the arm bands need to be tight. [00:22:07] Speaker 05: So this is why the whole claim construction thing is so critical to your case and to opposing counsel's case, because if personal flotation device is limited to US Coast Guard regulation, it keeps these things out, and these things show different shapes. [00:22:25] Speaker 05: I now get it. [00:22:26] Speaker 03: That's correct, Your Honor. [00:22:28] Speaker 03: And the important point there is, as the judge pointed out, Judge O'Connell, in the district court case, in the order, that was unrebutted. [00:22:37] Speaker 03: Coleman did not present any evidence that a personal flotation device need not meet US Coast Guard standards. [00:22:48] Speaker 03: May I answer any other questions? [00:22:52] Speaker 03: Thank you. [00:22:52] Speaker 03: I'd like to make a final point, if you don't mind. [00:22:55] Speaker 03: The problem we see with what Coleman is requesting here is that Coleman would like for this court to ignore the nature and intent of this device as a personal flotation device. [00:23:08] Speaker 03: It's not a swim aid. [00:23:10] Speaker 03: It's not a buoyant aid. [00:23:11] Speaker 03: It's not a buoyant device. [00:23:13] Speaker 03: It's a personal flotation device. [00:23:16] Speaker 03: And so what is seeking protection, a patent protection, is on something [00:23:20] Speaker 03: that it is mandated by federal regulations and US Coast Guard standards. [00:23:24] Speaker 02: But it's not seeking patent protection on the fact that it functions as a personal flotation device, because that would be a utility patent instead of a design patent. [00:23:34] Speaker 02: They're just seeking a design patent. [00:23:36] Speaker 02: I don't understand why you're arguing for this extreme claim construction anyway. [00:23:39] Speaker 02: I assume your products don't look exactly like this. [00:23:43] Speaker 03: Your Honor, they were seeking patent protection on a personal flotation device. [00:23:48] Speaker 03: not a buoyant aid, a personal flotation device. [00:23:51] Speaker 03: And as the court found. [00:23:52] Speaker 02: And they can't get a design patent on the utility of a flotation device. [00:23:57] Speaker 02: So they're getting a patent on the elemental parts of a personal flotation device. [00:24:03] Speaker 03: And it is true. [00:24:04] Speaker 03: But here, what was before the court was claim construction. [00:24:08] Speaker 03: And the determination, the key determination, was functionality. [00:24:12] Speaker 03: Were there features that were functional that were not ornamental? [00:24:16] Speaker 03: And what the court determined were that the arm bands and the attachments tapering, these were functional features and not ornamental. [00:24:27] Speaker 00: I don't recall. [00:24:28] Speaker 00: But do you have certain cases that you rely on for the position that this should be limited to a personal flotation device by virtue of the fact that it's in the claim or the title argument? [00:24:40] Speaker 00: Or what case law do you have to support the idea? [00:24:43] Speaker 03: Even Coleman admits in page 7 of their reply [00:24:46] Speaker 03: that in order to determine functionality, you need to determine what the article manufacturer is and its intended use. [00:24:54] Speaker 03: But sure, that helps you to figure out whether something's functional or not. [00:24:57] Speaker 03: So it's undisputed here that the article manufacturer is personal flotation device. [00:25:04] Speaker 03: That is, and it's undisputed again, governed by US Coast Guard standards that have standards on buoyancy, secure fit, and performance, and which miss [00:25:15] Speaker 03: Ballesteri said these features were necessary and dictated by a function. [00:25:21] Speaker 02: Do you have an example of what your accused products look like? [00:25:24] Speaker 03: Yes. [00:25:26] Speaker 03: It's on our brief. [00:25:37] Speaker 03: It is page six of our brief. [00:25:40] Speaker 03: So you're right, Your Honor. [00:25:42] Speaker 03: There is quite a bit of difference. [00:25:43] Speaker 02: Are all of your products like this? [00:25:45] Speaker 02: Do they all have over the shoulder straps? [00:25:49] Speaker 03: Those are shoulder straps, correct. [00:25:52] Speaker 02: Frankly, it just baffles me why you're wasting our time on this extreme claim construction when your things don't look anything like the design patent here anyway. [00:26:01] Speaker 03: Your Honor, we filed a motion for summary judgment on non-infringement. [00:26:07] Speaker 02: But you also, I assume, urged the district court to adopt this claim construction. [00:26:11] Speaker 03: Yes. [00:26:12] Speaker 03: I did. [00:26:13] Speaker 03: That's correct. [00:26:14] Speaker 03: But we filed a motion for summary judgment, which the court did not hear because Coleman requested that the case be dismissed so that it could appeal the court's decision on claim construction. [00:26:25] Speaker 03: So we wanted to be heard on non-infringement. [00:26:30] Speaker 02: Under this extreme claim construction. [00:26:32] Speaker 02: I mean, even if you go with their claim construction, aren't you going to win? [00:26:38] Speaker 05: I believe so. [00:26:38] Speaker 05: I mean, yours is a vest. [00:26:40] Speaker 05: Theirs is a band. [00:26:43] Speaker 05: I mean, so completely different. [00:26:45] Speaker 05: The only thing that is relatively similar is the yarn bands, actually. [00:26:49] Speaker 05: Which are functional in our perspective. [00:26:52] Speaker 03: I get it. [00:26:53] Speaker 03: And that was the court's decision. [00:26:55] Speaker 03: Your Honor, we believe that this case should not have been brought at all. [00:26:58] Speaker 03: And we were hoping to get the court's final determination on non-infringement and validity. [00:27:04] Speaker 03: But Coleman decided to appeal this decision. [00:27:07] Speaker 03: We don't want to waste the court's time. [00:27:08] Speaker 03: But the court made a claim construction, and we believe it should be affirmed. [00:27:13] Speaker 05: Okay, Mr. Annis, you have a few minutes with the bottle left. [00:27:24] Speaker 05: I mean, even if you prevail with us, Mr. Annis, if we find the district court made some mistakes, I mean, the accused product, it doesn't look anything like yours, the patent claims. [00:27:35] Speaker 05: What's going on here? [00:27:35] Speaker 05: It's a vest. [00:27:37] Speaker 05: And the vest dominates the appearance of the item. [00:27:41] Speaker 02: I hope you're not going to turn around and argue that the overly [00:27:44] Speaker 02: shoulder things are functional and therefore have to be disregarded, are you? [00:27:48] Speaker 05: Locked off. [00:27:49] Speaker 05: Locked off. [00:27:49] Speaker 01: Your Honor, the devices are exceedingly similar. [00:27:54] Speaker 01: They have all aspects the same except for the straps that go over the shoulders, which are just fabric. [00:28:01] Speaker 01: It's just the fabric fastener. [00:28:06] Speaker 02: So how are you going to get that excluded, though? [00:28:07] Speaker 02: I mean, the design patent has to be essentially copied. [00:28:12] Speaker 01: It has scope. [00:28:13] Speaker 02: And it has scoped in the eyes. [00:28:15] Speaker 02: So you're going to turn around and do exactly what your friend is doing to us now and say you don't look at those because those aren't part of the design. [00:28:22] Speaker 01: No, Your Honor, that's not it. [00:28:24] Speaker 01: That's not it. [00:28:24] Speaker 05: Because they don't achieve the floating. [00:28:27] Speaker 05: Because they're just fabric. [00:28:29] Speaker 01: Right. [00:28:29] Speaker 05: They're not part of the floatation device. [00:28:32] Speaker 05: Right. [00:28:32] Speaker 05: They're just swim aids. [00:28:34] Speaker 01: Your Honor, I want to get back to the concept of what is in a name, the title. [00:28:38] Speaker 01: Ms. [00:28:38] Speaker 01: Baustari, a sport dimensions expert, admits that [00:28:42] Speaker 01: If this was called a swim mate, it would not be guided by and it wouldn't be limited by US Coast Guard approval. [00:28:49] Speaker 01: The same thing would hold true if you said life jacket. [00:28:51] Speaker 01: If you used the term life jacket, that's not a US Coast Guard regulated term. [00:28:56] Speaker 01: So by focusing myopically on personal flotation device, you have incorporated all of those limitations into the claim inappropriately. [00:29:06] Speaker 01: That is an error of law. [00:29:08] Speaker 01: Judge Dole, you had indicated about what happened in the odds-on case and even though certain aspects were found to be functional, weren't they nonetheless construed? [00:29:19] Speaker 01: And the answer is absolutely that is true. [00:29:21] Speaker 01: That the fins themselves were described in detail by the court in its construction that was upheld on appeal. [00:29:28] Speaker 01: Judge Shees, you had talked about the Kerner and Westman patents. [00:29:35] Speaker 01: It's important to mention had another expert, an expert that was going to testify in the issue of validity. [00:29:41] Speaker 01: And the very references that you cited to, Your Honor, the Kerner reference, the Westman reference, and even the Kelso reference, references that the district court refused to even look at or consider, those were used by that expert to say, an ordinary designer, or sorry, a designer of ordinary skill [00:30:02] Speaker 01: in the art of this particular patent would look to those items to cobble together and create the design of the claims. [00:30:10] Speaker 01: So if these references are relevant to determining how an ordinary skilled designer in this pertinent art would come up with the design claim in the D714 patent, how is it that those same references you couldn't change [00:30:28] Speaker 01: the look or feel, and for the device to continue to work as intended. [00:30:35] Speaker 05: I thank both counsels.