[00:00:03] Speaker 05:
Before we begin our session today, I think Judge Plager would like to note the presence of some students from Indiana.

[00:00:26] Speaker 06:
Yes, we have in our

[00:00:30] Speaker 06:
audience today, several students from Indiana University and law school.

[00:00:37] Speaker 06:
And I wanted to welcome them to our court.

[00:00:39] Speaker 06:
They're visiting here in Washington.

[00:00:43] Speaker 06:
And this is an opportunity for them to see our patent lawyers at work.

[00:00:53] Speaker 06:
And I'm not sure they will or are wanting to be patent lawyers, but maybe you'll convince them.

[00:01:02] Speaker 05:
Welcome.

[00:01:04] Speaker 05:
Welcome.

[00:01:05] Speaker 05:
Thank you.

[00:01:06] Speaker 05:
Our first case this morning is number 151494, A&J Manufacturing LLC versus ITC.

[00:01:14] Speaker 05:
Mr. Carlson.

[00:01:18] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:01:20] Speaker 04:
I've reserved five minutes for rebuttal.

[00:01:22] Speaker 04:
In this Section 337 investigation dealing with accused infringing grills imported from China, dual-mode grills,

[00:01:32] Speaker 04:
The commission excluded the great majority of the accused grills from importation, but did not exclude a limited number on the basis of its interpretation of one of the patent claim limitations, that of openable cover.

[00:01:46] Speaker 04:
We believe that the commission imposed an unduly narrow interpretation of openable cover and have asked the court to review and reverse the commission's interpretation.

[00:01:58] Speaker 04:
Starting with claim one of the... If we uphold their interpretation... Then there is one other... If you uphold their interpretation of openable cover, Your Honor, then there is one other grill that forms a question that we also ask the Court to resolve.

[00:02:16] Speaker 06:
The exhaust.

[00:02:17] Speaker 04:
Correct.

[00:02:18] Speaker 04:
Correct.

[00:02:19] Speaker 04:
And in particular, does the cover of that particular charbroiled grill include an exhaust as the claim term provides?

[00:02:27] Speaker 04:
But to return to claim one, openable cover is the issue and the claim limitation that was interpreted by the court.

[00:02:36] Speaker 04:
The commission's brief agrees with us that an openable cover, that a cover can comprise two parts.

[00:02:46] Speaker 04:
The preferred embodiment shown in the patent is a semi-cylindrical cover that covers over the cooking space and encloses the grill space.

[00:02:55] Speaker 04:
But there is in the prior art, and intrinsic to the patent prosecution, there was a considerable amount of other prior art that shows two-piece covers.

[00:03:07] Speaker 04:
The commission said, well, OK, that word openable modifies the term cover.

[00:03:11] Speaker 04:
And that means that all parts of the cover, if it's a two-part cover, both parts need to be openable.

[00:03:17] Speaker 04:
And frankly, as the Phillips case provides, a person of ordinary skill in the art

[00:03:23] Speaker 04:
would not interpret a two-part cover to require that both pieces open.

[00:03:28] Speaker 04:
There is art, for example, that shows a fixed piece and an openable part that slides within it.

[00:03:36] Speaker 04:
Both the pieces are considered to be the hood or the cover.

[00:03:41] Speaker 05:
How do you deal with the prosecution history, which is, I guess, at page 10, 321 of the appendix?

[00:03:50] Speaker 04:
And in particular, Your Honor, talking about the

[00:03:53] Speaker 04:
the question of whether there was a disclaimer.

[00:03:57] Speaker 05:
Well, it's not just a disclaimer.

[00:03:59] Speaker 05:
It's also the prosecution history can be used to interpret the claims.

[00:04:04] Speaker 04:
Yes, certainly that's true.

[00:04:06] Speaker 04:
But starting from the order, and I will get to that in one moment, but the idea of openable does not require movable as the commission initially interpreted.

[00:04:17] Speaker 04:
You think of an openable tent or an openable garage.

[00:04:19] Speaker 04:
Well, only the tent flap moves, only the garage door moves, but it still can be openable in order to access the interior.

[00:04:25] Speaker 04:
And it's the same with a grill cover.

[00:04:27] Speaker 04:
What you really want is to be able to open the grill cover in order to be able to access the interior and manipulate the food that you're cooking.

[00:04:34] Speaker 04:
Now, the question is, once we have that straightened out and realize that the commission misinterpreted that term openable,

[00:04:41] Speaker 05:
Well, I'm trying to address the language there because the language seems to be a bit of a problem for you.

[00:04:48] Speaker 05:
At best it would result in a barbecue grill with chimneys connected to exit ports on the fixed portions of the oven smoker enclosures which are not openable, i.e.

[00:04:59] Speaker 05:
not covers.

[00:05:01] Speaker 04:
So that's the next question is, once we've got openable cover figured out, do we look to the prosecution history to

[00:05:08] Speaker 04:
import that limitation, the fixed portions limitation, as the commission did.

[00:05:13] Speaker 04:
This court's precedent... Do you agree that the language that I just read to you is against you?

[00:05:19] Speaker 04:
It is ambiguous at best, Your Honor.

[00:05:21] Speaker 04:
Here's the circumstance.

[00:05:24] Speaker 04:
What the examiner was trying to do during prosecution is he had these two references.

[00:05:28] Speaker 04:
One, McLean, which was a portable, very simple structure with very shallow pans on a wire frame.

[00:05:36] Speaker 04:
that you could take to a picnic or something like that.

[00:05:40] Speaker 04:
The second was Cox, a gigantic 700-pound structure, the specification itself said very heavy, with chimneys and exit ports and including venting or exhaust beneath the cooking surface, underneath the cooking surface.

[00:05:57] Speaker 04:
The argument there that was made in the appeal brief that your honor is referring to is this.

[00:06:02] Speaker 04:
A person of skill in the art would not be motivated to combine McLean and Cox.

[00:06:08] Speaker 04:
And the statement was made was that you couldn't do it.

[00:06:10] Speaker 04:
It's impossible to do, because you cannot.

[00:06:13] Speaker 04:
You're not addressing the language I quoted to you.

[00:06:16] Speaker 04:
The language is this, where it says IE covers.

[00:06:21] Speaker 04:
That means that the exhaust is not going to be in the cover, because Cox provides that the exhaust is below the plane of the grill.

[00:06:30] Speaker 04:
And the cover, as interpreted,

[00:06:32] Speaker 04:
in the specification and in the prosecution history means that enclosure in the area above the grill, Your Honor.

[00:06:39] Speaker 04:
So if we have exhaust below the cover, what it's saying is below fixed portions, i.e.

[00:06:46] Speaker 04:
covers, meaning you're having exhausts that are not in the cover.

[00:06:50] Speaker 04:
So even if you could combine, which would be impossible to do because of these two vastly different teachings, what you would end up with is not a combination that the

[00:07:03] Speaker 04:
Examiner urged would anticipate or render obvious these patent claims because the exhausts are below the level of The cooking surface they're not on the covers and that's what that ie not covers reference means it's ambiguous perhaps because the interpretation that the the Commission relied on is a View or one view as they say in their brief of how you might say this you might say look what they're saying here is that covers are

[00:07:33] Speaker 04:
are not movable.

[00:07:35] Speaker 04:
Fixed portions cannot be covers.

[00:07:37] Speaker 04:
But the other interpretation is the one that I just gave you, that if you tried to combine these two things, and the argument was there's no motivation to do that because it's impossible to do, and it would be an unworkable combination.

[00:07:50] Speaker 04:
But if you were able to do that, and if you tried to do that, you would still not have exhausts on the covers because Cox teaches these exhausts from underneath.

[00:08:00] Speaker 04:
And in fact, the commission's brief recognizes that.

[00:08:04] Speaker 04:
So we're going back to the case law that we've cited to the court, which is that linear technology versus ITC case, talking about, can you import this forced implementation into the claim from deep in the prosecution history and have it limit the scope of the claimed invention?

[00:08:25] Speaker 04:
You can only do so if, under linear technology, there's a clear intention to limit claim scope

[00:08:31] Speaker 04:
by words or expressions of manifest exclusion.

[00:08:35] Speaker 04:
Clear intention, we'll get to in a second.

[00:08:37] Speaker 04:
But to limit claim scope, remember that the argument here that's being made in the appeal brief has nothing to do with the claimed invention.

[00:08:44] Speaker 04:
It has to do with showing the examiner that even if this combination were possible, it would not result in the combination that the examiner was trying to urge.

[00:08:55] Speaker 04:
So it's certainly ambiguous.

[00:08:57] Speaker 04:
And under the omega engineering precedent of this court,

[00:09:00] Speaker 04:
Ambiguity cannot form the basis for this kind of importation of limitation, this kind of disavowal of claim scope.

[00:09:11] Speaker 04:
There have to be manifest words of exclusion or restriction.

[00:09:15] Speaker 04:
I want to suggest to the court that that means you're talking about our claim now.

[00:09:19] Speaker 04:
We'll say, we don't claim this.

[00:09:21] Speaker 04:
If there was something in the prosecution history that said, we don't claim a cover that has fixed portions,

[00:09:28] Speaker 04:
and an exhaust on the fixed portions, then that would be a manifest exclusion.

[00:09:34] Speaker 04:
This is an ambiguous statement relating not to the claims, not to the scope of our invention, but to this proposed combination that the examiner made.

[00:09:42] Speaker 04:
It's at best ambiguous.

[00:09:44] Speaker 04:
There are multiple interpretations, including the one that I just gave you.

[00:09:48] Speaker 04:
And on that basis, and under the precedent that this court has stated in the linear tech case, you cannot impose a disavowal of claim scope

[00:09:58] Speaker 04:
under those circumstances.

[00:10:01] Speaker 04:
Let me ask, and I'll just go very briefly because my initial time, at least, is going short.

[00:10:07] Speaker 04:
Even if you disagreed with us with respect to that first claim, claim 10 is a means plus function claim.

[00:10:13] Speaker 04:
The language that Your Honor just quoted regarding fixed portions is an argument that was made in an appeal brief in a separate section dealing with separate patentability only of claim one.

[00:10:25] Speaker 04:
It cannot be imported under the patent officer's own rules.

[00:10:28] Speaker 04:
It cannot be relied on by the examiner regarding the patentability of claim 10.

[00:10:33] Speaker 04:
And yet the commission, again, in violation of this court's precedent, took that fixed portions limitation and applied it to claim 10 as well.

[00:10:43] Speaker 06:
This is the openable cover means.

[00:10:45] Speaker 06:
Correct.

[00:10:46] Speaker 06:
Yes.

[00:10:49] Speaker 04:
And as we've indicated in our brief, under the MPEP, there is a special

[00:10:54] Speaker 04:
a particular rule that the Patent Office applies, saying you can argue patentability separately, and if you do so, the Patent Office will not combine claims for the purpose of analyzing each argument.

[00:11:08] Speaker 04:
They won't group the claims.

[00:11:10] Speaker 04:
So the language that Your Honor referred to, the fixed portions limitation that the Commission imported, was not used in Claim 10 at all.

[00:11:18] Speaker 04:
There was a similar argument saying it's impossible to combine McLean and Cox.

[00:11:23] Speaker 04:
And the examiner ultimately agreed that you should not do that.

[00:11:27] Speaker 04:
But the fixed portions thing that the commission relied on to limit the claim did not appear there.

[00:11:33] Speaker 04:
My time is up for the initial presentation.

[00:11:35] Speaker 04:
Thank you.

[00:11:36] Speaker 05:
Thank you.

[00:11:44] Speaker 05:
Ms.

[00:11:44] Speaker 05:
Chen?

[00:11:47] Speaker 01:
May it please this court?

[00:11:49] Speaker 01:
The Commission properly found that four grills imported... We'll have to speak up a bit, please.

[00:11:54] Speaker 01:
Yes, Your Honor.

[00:11:55] Speaker 01:
The Commission properly found that four grills imported by Intervenor Charboil and a group of six redesigned grills that are imported by Intervenor's outdoor leisure products do not infringe any claim of the 712 patent.

[00:12:08] Speaker 01:
I'd like to first address appellant's arguments with respect to the openable cover in claims 1 and 17 before going to the openable cover means in claim 10.

[00:12:19] Speaker 01:
Now, Appellant's counsel argues that the Cox provides exhausts that are below the plane of the grill.

[00:12:26] Speaker 01:
The Commission respectfully disagrees with ANJ's counsel's characterization of Cox.

[00:12:30] Speaker 01:
And I'd like to refer the judges to Appellant's brief at pages 33 to 34, which reproduces figures 1 to 3 of Cox.

[00:12:43] Speaker 01:
Now, the examiner in the office action right before

[00:12:47] Speaker 01:
the PTO appeal brief by ANJ relied on Cox for disclosing openable cover.

[00:12:55] Speaker 01:
Referring to figure one of Cox, which is on page 33 of appellant's brief, the examiner found that Cox discloses a barbecue grill having two cooking units.

[00:13:05] Speaker 01:
And these two cooking units are denoted by elements 12 and 16.

[00:13:10] Speaker 01:
The examiner found that each cooking unit is covered by an openable cover, and this denoted by elements 38 and 40.

[00:13:16] Speaker 01:
and that each of these openable covers includes at least one exhaust.

[00:13:20] Speaker 01:
An examiner cited three exhausts, and these are denoted by elements 18, 22, and 92.

[00:13:27] Speaker 01:
It's very clear from figures one through three of Cox that exhaust 18 is in the openable cover enclosure of the grill and not on the openable cover as the examiner found.

[00:13:45] Speaker 01:
And this is discussed in the ITC brief on pages 8 to 12.

[00:13:52] Speaker 01:
If you look at figure 3, the exhaust element 18 has an opening, which is denoted by element 54.

[00:14:04] Speaker 01:
And that is on the grill enclosure and not on the openable cover, which the examiner cites as element 38.

[00:14:13] Speaker 01:
And also on the other cooking unit, if you look at exhaust 92, exhaust 92 has an opening into the grill enclosure.

[00:14:24] Speaker 01:
And that's also not on the openable cover that the examiner cites as element 40.

[00:14:34] Speaker 03:
You really, well, you can't tell too much by the figures that you're citing.

[00:14:42] Speaker 03:
OK, I see a point.

[00:14:45] Speaker 01:
So ANJ criticizes commission for using the word fixed in its construction.

[00:14:50] Speaker 01:
But ANJ used that word during prosecution to overcome an obviousness rejection over McLean and Cox.

[00:14:57] Speaker 01:
And in fact, before the examiner even relied on Cox, the examiner had cited other prior art that's discussed in the ITC brief, such as Nemec and Gennard, also for teaching that the exhaust is on fixed portions of the cooking units.

[00:15:12] Speaker 01:
And this is discussed in the ITC brief at pages 8 to 12.

[00:15:16] Speaker 01:
In all of these rejections, the examiner recognized that the claims called for the exhaust to be on the openable covers.

[00:15:25] Speaker 01:
But he reasoned that placement of exhaust on the covers instead of other parts of the cooking units were mere rearrangements of parts that would not affect the function of the cooking units.

[00:15:36] Speaker 01:
And so this was a state of the rejection.

[00:15:38] Speaker 01:
And in order to overcome this McLean over Cox rejection, ANJ argued in his PTO appeal brief

[00:15:45] Speaker 01:
that even if you were to combine McLean and Cox, the combination would still fail to teach the limitations wherein the first cover includes at least one exhaust and wherein the second cover includes at least one exhaust.

[00:15:58] Speaker 01:
Because, and this is quoted from A10321, at best it would result in a barbecue grill with chimneys connected to exit ports on the fixed portions of the oven smoker enclosures, which are not openable, i.e.

[00:16:10] Speaker 01:
not covers.

[00:16:11] Speaker 03:
Does the specification ever define what fixed portions means?

[00:16:16] Speaker 01:
The specification does not, other than figures one to three and identifying the openable cover, the specification does not go into any other description of what openable cover and exhaust are.

[00:16:31] Speaker 01:
And the specification does not use the word fixed.

[00:16:34] Speaker 01:
The place that the fix comes from is from this prosecution history in the ANJ's PTO appeal brief.

[00:16:43] Speaker 01:
And beyond this clear statement that's in the ANJ's PTO appeal brief, there are other parts of the appeal brief that's very relevant here.

[00:16:53] Speaker 01:
ANJ also argued that placing the exhaust on the openable cover is not as the examiner consistently maintained an obvious substitution, because prior arts such as Oliver are taught away from including exhaust in the openable cover.

[00:17:08] Speaker 01:
And in view of these arguments, the PTO issued a notice of allowance.

[00:17:12] Speaker 01:
Now, the ALJ and the commission found that a person of ordinary skill in the yard reading ANJ's statements made in the prosecution history, in view of the specification two, a person of ordinary skill would interpret that ANJ interpreted openable cover to exclude fixed portions of the grill enclosure, and that the exhaust would have to be located on the openable cover instead of on other portions of a grill.

[00:17:39] Speaker 01:
And this is discussed in the ALJ's order at A 1852 to 857 in the commission summary determination opinion at A 3918 to 925.

[00:17:48] Speaker 01:
And I'd like to also briefly address Claim 10.

[00:17:53] Speaker 01:
First, the commission construed openable cover means and exhaust means as means plus function limitations.

[00:18:02] Speaker 01:
On appeal, ALJ to A and J challenges the commission's construction of openable cover means.

[00:18:09] Speaker 01:
and the commission's non-infringement findings based on that limitation.

[00:18:13] Speaker 01:
However, ANJ does not challenge the commission's construction of exhaust means and the commission's non-infringement findings based on exhaust means limitations.

[00:18:24] Speaker 01:
And for that reason, even if the court agrees with ANJ's construction of openable cover means, it must still affirm the commission's finding of non-infringement as to claim 10 and claims 11 through 16, the dependent claims.

[00:18:40] Speaker 01:
And finally, I'd like to address the charbroil grill that's identified in the ITC brief as a charbroil 4512 grill.

[00:18:51] Speaker 01:
There was substantial evidence supporting the Commission's finding of non-impringement as to that grill, and this substantial evidence is discussed in the Commission opinion at A31 and the ALJ's ID at A5638, both of which cite to respondents extra testimony at A118-120 and

[00:19:11] Speaker 01:
A&J's expert testimony, which supports the commission's finding, because A&J's expert testified that, quote, the alleged exhaust is a space between the openable lid and the grill body.

[00:19:23] Speaker 01:
And this quote is from A8341.

[00:19:26] Speaker 01:
Even if some evidence detracts from the commission's finding, A&J has not shown that the commission's finding is unreasonable.

[00:19:35] Speaker 01:
Are there any other questions I'd like to leave the rest of my time?

[00:19:38] Speaker 05:
OK.

[00:19:53] Speaker 02:
May it please the court, John Harbin for Pelley Intervenor Charbroil.

[00:20:01] Speaker 02:
I agree with everything the ITC's counsel ably said about the open cover means issue.

[00:20:11] Speaker 02:
It may be built in suspenders, but I'd like to add one brief point that we briefed that the claims require that the openable cover be attached to each cooking unit.

[00:20:21] Speaker 02:
And as we briefed, we submit that means the openable cover is a separate part attached.

[00:20:26] Speaker 02:
It doesn't say the openable part of the cover is attached to the cooking unit.

[00:20:31] Speaker 02:
So I think that reinforces that the openable cover has to be openable in its entirety.

[00:20:39] Speaker 02:
But I want to focus my argument on the issue that we briefed under the right for any reason principle, which you only need reach.

[00:20:50] Speaker 02:
if you do reverse the commission's ruling construction of an openable cover and the resulting non-infringement findings.

[00:20:57] Speaker 02:
And that is that we submit the proper construction of the term exhaust.

[00:21:02] Speaker 02:
Under the proper construction, there is no infringement for three of the Charbroil grills because as to the independent claims 1 and 17, the term exhaust should be limited to the smokestacks type of structure

[00:21:19] Speaker 02:
which is the only support for exhaust in the specification, depicting figures one to three of the patent.

[00:21:28] Speaker 02:
Initially, let me address the standing argument raised by ANJ, the appellant, that we do not have the right to bring this issue up on appeal, and that we should have filed our own appeal.

[00:21:38] Speaker 02:
In addition to the fact that the cases from other circuits ANJ sites are distinguishable, we believe that argument is contrary to this court's authority because

[00:21:49] Speaker 05:
You could have been sanctioned if you'd filed a lawsuit.

[00:21:54] Speaker 02:
Yes, Your Honor.

[00:21:55] Speaker 02:
Because we prevailed on all the infringement findings, just all of our products.

[00:21:59] Speaker 02:
So we could not have filed.

[00:22:00] Speaker 02:
Correct.

[00:22:01] Speaker 02:
And we believe that as a party that participated in the underlying 337 action, we can raise any issue that was litigated to support the commission's finding of no violation.

[00:22:15] Speaker 02:
And we could cite, among other things, the surface technology case 780 of second 29.

[00:22:19] Speaker 02:
On the substantive issue, we will focus on claim 1 and 17.

[00:22:25] Speaker 02:
I only have a couple of minutes because we, as ITC's counsel pointed out, ANJ did not appeal the commission's finding that there was not infringement under claims 10 and 16 as to some grills and that ANJ had not put on evidence of infringement as to some of the other grills.

[00:22:43] Speaker 02:
As to claims 1 and 17, we submit the exhaust should be limited to the support in the specification.

[00:22:50] Speaker 02:
And the narrow definition that ANJ gave it in the prosecution history, which we submit is consistent with the ordinary meaning of the term exhaust.

[00:22:59] Speaker 02:
The term exhaust does not appear at all in the original 320 application.

[00:23:03] Speaker 02:
To overcome rejections, ANJ twice proffered broad claims to openings in the cooking unit

[00:23:12] Speaker 02:
To overcome those rejections, ANJ limited the claims in August of 2011 to covers that included exhaust at that time with a limitation that were configured according to the fuel used in that cooking unit.

[00:23:29] Speaker 02:
And ANJ amended the specification in January of 2012 to identify the smoke stacks as the exhaust, not just as examples of exhaust.

[00:23:40] Speaker 02:
We've cited case laws such as Tronco v. Biomet.

[00:23:44] Speaker 02:
There was a recent case in August, this August, GPNE Court v. Apple, 830 F.

[00:23:50] Speaker 02:
3rd, 1365, where the court affirmed the construction of the claim term node as meaning pagers because the specification repeatedly referred to the invention as pagers.

[00:24:02] Speaker 02:
And in one inventor, 131 declaration, the inventor described the invention as a series of pagers.

[00:24:10] Speaker 02:
This is not, we don't have the number of uses.

[00:24:13] Speaker 02:
But in this case, as the prosecution, the only support, again, is the smokestacks shown in figures one to three.

[00:24:20] Speaker 02:
And as the prosecution continued in the December 2011 interview agenda, the applicant equated the smokestacks with exhausts in the January 2012 amendments to the spec, which is the first time exhaust was used in the spec.

[00:24:40] Speaker 02:
the applicant again equated exhausts with the smokestacks, did not refer to the smokestacks as an example of exhaust.

[00:24:51] Speaker 02:
So we submit that is how the applicant defined it, limited to smokestack type structures and many of the grills would not infringe under that construction.

[00:24:59] Speaker 02:
Thank you.

[00:25:00] Speaker 05:
Thank you, Mr. Harlow.

[00:25:03] Speaker 05:
Mr. Carlson.

[00:25:05] Speaker 04:
Thank you, Your Honor.

[00:25:09] Speaker 04:
Ms.

[00:25:09] Speaker 04:
Chan's argument was regarding this Cox reference.

[00:25:13] Speaker 04:
She pointed to the exhibits from Cox that are in our brief.

[00:25:17] Speaker 04:
But I'd like to point to the court that in the commission's own brief at page 38, there's a discussion of how the examiner perceived Cox.

[00:25:25] Speaker 04:
And it says, the examiner was unconcerned by the fact that exhausts were located on fixed portions of the grill rather than the cover, because having the exhaust on another part of the unit other than the cover would not

[00:25:37] Speaker 04:
would not make the exhaust non-functional.

[00:25:39] Speaker 04:
The point is, the examiner understood that cover didn't just include fixed portions during all of that argument.

[00:25:46] Speaker 04:
The examiner allowed these claims, regardless of the fact that the interpretation that Ms.

[00:25:53] Speaker 04:
Chen gives to Cox, in regard to what she had to say about, well, where are the exhausts and where are the channels for the exhaust, reasonable minds can differ.

[00:26:06] Speaker 04:
Judge Raina indicated that he can see what she's trying to say, and maybe others can as well.

[00:26:13] Speaker 04:
But that's not the only interpretation.

[00:26:15] Speaker 04:
And the point that was raised in the appeal brief did not relate to our particular claims, but to the fact that the examiner was wrong in the notion that it would be obvious to one of skill in the art to combine McLean and Cox, because it would be unworkable, and it would not result in the combination that the examiner posited.

[00:26:36] Speaker 04:
with regard to the statement by Ms.

[00:26:38] Speaker 04:
Chen that the exhaust has to be on the openable cover.

[00:26:43] Speaker 04:
First of all, note that on is not used in the claim.

[00:26:46] Speaker 04:
The claim says a cover includes an exhaust.

[00:26:49] Speaker 04:
And what's more, whereas it says in each case for the first and second cooking unit that it must have an openable cover, it doesn't use that modifier openable when it talks about the placement of the exhaust.

[00:27:02] Speaker 04:
It merely says that the cover includes an exhaust.

[00:27:04] Speaker 04:
So that's further evidence that

[00:27:06] Speaker 04:
would lead the examiner away and would lead a person of skill in the art away from this notion that an exhaust must be on a movable part or on an openable part in the way that the commission has interpreted this claim.

[00:27:21] Speaker 04:
It simply, from the language of the claim itself, teaches a way or argues a way from this stilted interpretation and this importation of a limitation from deep in the prosecution history of fixed portions.

[00:27:35] Speaker 04:
as court pointed out fixed portions appears nowhere in the specification to the patent it was simply raised in the appeal brief and for no other purpose than to point out to the examiner that the combination of McLean with Cox was not workable an impossible combination and would not result in the combination that he was suggesting and it was ultimately withdrawn by the PTO and the patent issued in that way.

[00:28:02] Speaker 04:
With regard to the

[00:28:04] Speaker 04:
Charbroil 4512 grill in just the last few moments that I have here, that grill plainly shows a two-part cover.

[00:28:11] Speaker 04:
It has a panel fixed to the grill body and then what the commission would call an openable cover, what we would call the second part of the two-part cover.

[00:28:21] Speaker 04:
And between the two is this channel exhaust.

[00:28:25] Speaker 04:
There was substantial testimony by Charbroil's chief engineer that that is where the exhaust testing is done.

[00:28:33] Speaker 04:
in that space, what they call the opening.

[00:28:36] Speaker 04:
These grills require gas certification to make sure that there's not a buildup of uncombusted gas inside the cover.

[00:28:42] Speaker 04:
It would cause a flare-up when the user opens the hood.

[00:28:45] Speaker 04:
The testing that's done for the certification is done at the exhaust, and Alex Gafford, Charbroil's chief engineer, testified that's where they put their test probe.

[00:28:56] Speaker 04:
It's clearly an exhaust, and it is machined into the cover.

[00:29:01] Speaker 04:
There was

[00:29:02] Speaker 04:
The commission's determination that that was not on the cover is based, first of all, on its wrong interpretation of openable cover, a wrong interpretation of where the exhaust must be.

[00:29:15] Speaker 04:
It simply says includes, and the cover itself was designed to include that exhaust.

[00:29:21] Speaker 04:
Mr. Gafford testified so.

[00:29:23] Speaker 04:
Finally, with regard to the exhaust issue, what Charbroil is doing here is not intervening in support of the commission.

[00:29:31] Speaker 04:
Charbroil is intervening to try to oppose the commission's determination with respect to the interpretation of that claim exhaust.

[00:29:39] Speaker 04:
And I want to suggest to the court that it would be bad precedent to allow that to take place and to go into the entirety of an attack on the commission's interpretation of exhaust in that regard.

[00:29:52] Speaker 04:
The commission got exhaust right.

[00:29:54] Speaker 04:
They got openable cover wrong.

[00:29:56] Speaker 04:
They gave us relief that we asked for in part.

[00:29:58] Speaker 04:
We asked that we get the complete relief from this court.

[00:30:01] Speaker 04:
Thank you Mr. Carlson, we're out of time.

[00:30:03] Speaker 04:
Thank you for all counsel, the case is submitted.