[00:00:33] Speaker 03:
Second case this morning is number 15-1546, Clean Air Engineering versus Advanced Cleanup Technologies.

[00:00:43] Speaker 03:
Mr. Lauridsen.

[00:00:52] Speaker 00:
May it please the court, the district court erred in two fundamental ways.

[00:00:57] Speaker 00:
First, at summary judgment,

[00:00:58] Speaker 00:
The district court held that these products were not capable of being contracted, even though it recognized that they contracted in some form.

[00:01:06] Speaker 01:
How did they contract though?

[00:01:08] Speaker 01:
Their shape didn't change.

[00:01:11] Speaker 01:
Their angle decreased as you went up, but there wasn't any movement of those hoods themselves.

[00:01:22] Speaker 00:
That's correct, Your Honor.

[00:01:23] Speaker 00:
And at the district court level, two forms of contraction were discussed.

[00:01:26] Speaker 00:
dynamic contraction and static contraction.

[00:01:29] Speaker 00:
Dynamic contraction involves a structure change in its physical shape in order to decrease its circumference, whereas static contraction involves an object who by its nature can decrease its circumference, such as when a bonnet is lowered over a ship's stack and the relative circumference of the bonnet decreases relative to that of the ship's stack.

[00:01:51] Speaker 00:
How does the funnel grasp the stack?

[00:01:55] Speaker 00:
The key here is a term sufficiently.

[00:01:59] Speaker 00:
The claim language says that it must sufficiently grasp the ship's stack.

[00:02:03] Speaker 00:
Now, during claim construction, although the district court did not construe the claim sufficiently grasped, the court did provide guidance as to what's required based off what's in the specification.

[00:02:14] Speaker 00:
The district court explained that the bonnet needs to maintain its position over the stack such that

[00:02:19] Speaker 00:
As the ship and the bonnet move relative to one another up to five vertical or horizontal feet, the bonnet will maintain its position on the stack and not come off.

[00:02:28] Speaker 00:
And at the same time, it won't damage the stack or damage the bonnet.

[00:02:33] Speaker 00:
And Larry Reeves, Hamey's tentative consultant, testified that this occurs as the bonnet's lowered over the ship's stack.

[00:02:41] Speaker 00:
It only has about two inches, possibly less, of space between it.

[00:02:45] Speaker 00:
And he specifically stated that

[00:02:47] Speaker 00:
the bonnet tends to bound back and forth, using the stack as a guide to keep it from coming completely off.

[00:02:53] Speaker 00:
Now, we maintain that the question of the fact that it stays on the stack and avoids coming completely off, at the very least creates an issue of fact that the jury should decide and shouldn't be decided at a summary judgment moment.

[00:03:08] Speaker 00:
The district court and its ruling require that there be complete and constant contact, but nothing in the specification and nothing in the claim language indicates that this needs to occur.

[00:03:16] Speaker 00:
And the key here, as the district court recognized during claim construction on A1656, is that contractable and sufficiently grasped must be read together.

[00:03:27] Speaker 00:
They go hand in hand.

[00:03:28] Speaker 00:
So what we're essentially looking for here is an accused device that, when it contracts in some manner, such that its relative circumference decreases with respect to that of the stack, you end up having a situation where the ship can move and rock on the water, and the bottom will not come off the stack.

[00:03:45] Speaker 00:
That's exactly what happens here.

[00:03:47] Speaker 00:
And the claim limitation is therefore met, or at the very least, the jury should decide whether that claim limitation has been met.

[00:03:54] Speaker 00:
I also note that the district court rejected Cammie's narrow construction of contractable, which was to decrease the circumference or start to constrict the bonnet until it substantially contacted the entire perimeter of the stack.

[00:04:10] Speaker 00:
and instead adopted the broad construction of cable will be contracted.

[00:04:13] Speaker 00:
So we maintain that this involve allows all forms of contraction, whether they be dynamic or static forms of contraction, so long as at the end of the day, the bond does not come off the ship stack and some form of contact with the ship stack causes that to happen.

[00:04:34] Speaker 00:
Turning to claim 19,

[00:04:36] Speaker 00:
The district court admitted the testimony of Dr. Princhivac at trial, even though Dr. Princhivac did not include his opinions in his expert report.

[00:04:45] Speaker 00:
The entire basis of Dr. Princhivac's opinions concerning claim 19 were in paragraph 40 of the expert report.

[00:04:51] Speaker 00:
And he stated, although the figures in Tabool are directed to a car, Tabool expressly... Claim 19, right?

[00:04:57] Speaker 00:
Not 18.

[00:04:58] Speaker 00:
Sorry.

[00:04:58] Speaker 00:
Claim 19, Your Honor.

[00:04:59] Speaker 00:
I'm sorry if I misspoke.

[00:05:01] Speaker 00:
Dr. Princhivac stated, although the figures in Tabool are directed to a car, Tabool explicitly cites that its apparatus is applicable to other types of vehicles, including marine vessels.

[00:05:12] Speaker 00:
Thus, Tabool discloses that its apparatus may be used with a boat, a ship, or other ocean-going vessel.

[00:05:18] Speaker 00:
And that's an A3573-74 paragraph 40.

[00:05:22] Speaker 00:
That's the entirety of Dr. Princhivac's disclosed opinion concerning whether Tabool anticipates an ocean-going vessel.

[00:05:30] Speaker 00:
Then, at trial,

[00:05:31] Speaker 00:
None of which was in the expert report.

[00:05:34] Speaker 00:
Dr. Printovec testified that it would only take a person having ordinary skill in the art in 2004 a couple of days to change what was in tabool, which is essentially a catalytic converter designed to go over an exhaust pipe of a car and make it large enough and scale it up such that it would be operable for an ocean-going vessel.

[00:05:54] Speaker 00:
He also testified that the genus of motor vehicle and boat was extremely small such that

[00:06:01] Speaker 00:
would be able to envision the entire genus and all the species therein.

[00:06:05] Speaker 00:
And he also testified that a person of an oriental skill in the art would not consider any kind of maritime regulations, any kind of emissions regulations, which are specialized for large ocean-going vessels.

[00:06:21] Speaker 00:
None of this was included in his expert report, and yet he was allowed to testify about this during trial.

[00:06:26] Speaker 00:
The entire trial turned on Dr. Princevac's testimony.

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and allowing him to introduce this testimony was greatly prejudicial to my client.

[00:06:36] Speaker 00:
Because without this testimony, Kamey could not have met its burden to show by clearing convincing evidence that Claim 19 was valid as anticipated by Tabool.

[00:06:45] Speaker 00:
Because of the prejudice that was suffered by my client, the burden then shifts to Kamey to show that there was no damage caused by that prejudice.

[00:06:53] Speaker 00:
And Kamey has not done anything in its briefs to show that this is untrue.

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And so as a result, a new trial was warranted as to the validity of Claim 19

[00:07:01] Speaker 00:
with the exclusion of Dr. Princevac's testimony.

[00:07:04] Speaker 00:
Also of note, Dr. Princevac did testify at deposition that his opinions concerning whether a person of ordinary skill in the art reading to Boole would anticipate Claim 19 was not necessarily part of his expert work, and therefore attempted to testify as a lay expert, essentially.

[00:07:22] Speaker 00:
To allow him to do this would circumvent the policy purposes of Rule 26 and Rule 27, because essentially any expert

[00:07:29] Speaker 00:
could leave a matter outside of his expert report and then later at trial supplement that testimony and say, oh, this is not part of my work as an expert.

[00:07:39] Speaker 00:
This is simply me as a layperson who happens to have a great deal of knowledge concerning the subject matter testifying as to what I personally believe.

[00:07:47] Speaker 00:
And again, this would violate the spirit of Rule 26 and Rule 37 and would be against the public policy.

[00:07:54] Speaker 00:
So for these reasons,

[00:07:56] Speaker 00:
There's no foundation for his testimony, and since the entire trial turned on that testimony, a new trial is warranted for Claim 19.

[00:08:04] Speaker 00:
We therefore ask that this Court reverse the District Court's summary judgment regarding Claim 1 and all of its defendant claims, and Claim 19, and order a new trial for Claim 19.

[00:08:17] Speaker 03:
Okay.

[00:08:19] Speaker 03:
Thank you.

[00:08:19] Speaker 03:
Thank you, Your Honor.

[00:08:20] Speaker 03:
I reserve the remainder of your time.

[00:08:26] Speaker 04:
This court should affirm the district court summary judgment of non-infringement as the claim one of the 710 patent for at least two reasons.

[00:08:56] Speaker 04:
First, it is undisputed that the bonnets and the accused products are rigid steel in the shape of an inverted funnel.

[00:09:03] Speaker 04:
They are not contractable around the ship stack to sufficiently grasp the ship stack to hold the bonnet in place as claim one requires.

[00:09:11] Speaker 04:
Second, it is undisputed that the inverted funnels of the accused products are suspended over and overlapping the ship stack and that there are several inches of space between the stack and the sides of the funnel

[00:09:24] Speaker 04:
Therefore, the inverted funnels of the accused products do not grasp the stack at all, as claim one requires.

[00:09:31] Speaker 04:
With respect to contractible, this initial claim was rejected in view of a prior art reference, Cochlejda, where a prior art bonnet that was an inverted truncated cone was similar to the accused products.

[00:09:47] Speaker 04:
The applicant, in response to that rejection, added the claim limitation, contractible around the ship stack,

[00:09:54] Speaker 04:
to sufficiently grasp the ship stack in order to gain allowance.

[00:09:59] Speaker 04:
The applicant further distinguished the reference, stating that that reference does not describe a bonnet which may be contracted around the stack to hold the bonnet in place.

[00:10:09] Speaker 04:
Furthermore, the applicant also stated that Coach Letta does not describe a contractable bonnet.

[00:10:16] Speaker 04:
Now, that is the only place in the entire intrinsic record where the word contractable appears.

[00:10:21] Speaker 04:
But it is clear from that statement

[00:10:24] Speaker 04:
that the applicant viewed the Cochlejda reference as a rigid bonnet and did not view it as contractable, changing in size or shape.

[00:10:36] Speaker 04:
The applicant can now try to reclaim subject matter that was clearly disclaimed during prosecution.

[00:10:41] Speaker 04:
Although the specification does not use the word contractable, it consistently describes the bonnet from the background through the summary, through the written description,

[00:10:52] Speaker 04:
as a device that changes in size or shape by compressing, springing, or closing around the stack.

[00:10:59] Speaker 04:
There's no disclosure, no example, no hint of any bonnet other than one that has dynamic structural capability to change in size or shape.

[00:11:12] Speaker 04:
Additionally, the plain meaning of the term contractable means able to be shrunk or capable of contracting.

[00:11:17] Speaker 04:
The steel inverted funnels of the accused products do not shrink.

[00:11:22] Speaker 04:
They do not contract.

[00:11:23] Speaker 04:
They are rigid and unable to change in size or shape.

[00:11:28] Speaker 04:
Additionally, with respect to sufficiently grasp, it's undisputed that the steel funnels of the accused product swing back and forth in the wind.

[00:11:39] Speaker 04:
And though they may bump the stack, they do not sufficiently grasp the stack.

[00:11:44] Speaker 04:
This intermittent, isolated contact does not amount to grasping the stack to hold the bonnet in place as the claim requires.

[00:11:56] Speaker 04:
With respect to Dr. Princefax's testimony, the district court did not abuse his discretion in admitting Dr. Princefax's testimony offered at trial, where he testified that one of ordinary skill in the art would envision an ocean-going vessel when reading the word boat in tabule.

[00:12:14] Speaker 04:
Applicants have waived any objections to this evidence.

[00:12:17] Speaker 04:
Appellants did not file a Daubert challenging Dr. Princefax's expert opinion.

[00:12:21] Speaker 04:
They did not object to Dr. Princevac's direct trial declaration on any basis relating to anticipation for which this information was offered.

[00:12:28] Speaker 04:
They filed no motions in Lemony, and they stipulated to the admission of his deposition, his expiry report, and his declaration in support of motion for summary judgment, all of which set forth the basis of his personal experience indicating that he has experience in naval architecture and can attest to

[00:12:49] Speaker 04:
that one of ordinary skill in the art at the time of the invention would understand that the word boat in tabule would be understood to mean an ocean-going vessel.

[00:13:00] Speaker 04:
There's no prejudice and no abuse of discretion in this instance.

[00:13:06] Speaker 03:
OK.

[00:13:07] Speaker 03:
Thank you very much, Ms.

[00:13:08] Speaker 03:
Maybur.

[00:13:10] Speaker 03:
Mr. Lordson, you have a little over seven minutes here if you need it.

[00:13:16] Speaker 00:
I'll try to give it shorter than that, Your Honor.

[00:13:30] Speaker 02:
Why doesn't prosecution history indicate that your view that this includes static contracting is wrong?

[00:13:44] Speaker 00:
Your Honor, as the square has stated, prosecution history disclaimer requires a clear and unequivocal surrender of the scope of the claim.

[00:13:51] Speaker 00:
It cannot be ambiguous.

[00:13:52] Speaker 00:
It needs to be unmistakable.

[00:13:54] Speaker 00:
Kamee does not give a complete picture of what occurred during prosecution history.

[00:14:00] Speaker 00:
In distinguishing over Kukleida, the patentee did not simply say that the bonnets were contractible and that the bonnets in Kukleida were not contractible.

[00:14:09] Speaker 00:
Instead, the patentee said that Kukleida does not describe a bonnet which may be contracted on a stack to hold the bonnet in place.

[00:14:16] Speaker 00:
And again, this is that interplay between contractibility and sufficiently grasping lips.

[00:14:21] Speaker 00:
Kuklata involves a bonnet that is perpendicular to the ground, designed to be held above an emission source and held in place with a pivot and a cylinder.

[00:14:31] Speaker 00:
Kuklata also, in some embodiments, have curtains that lower over the emission source.

[00:14:36] Speaker 00:
Those curtains are not capable of being contracted or grasping the stack, and they have slits in them.

[00:14:40] Speaker 00:
Even F1 were to lower the bonnet in Kuklata over a ship stack, which is not its intended purpose.

[00:14:48] Speaker 00:
since it's stated in Euclid that it always maintains its position above the stack and always 90 degrees to the ground, the bonnet would then not be able to grasp the stack because as a ship moved in rock from the water, the pivot and the cylinder, which are designed to keep the bonnet stable, would not allow relative movement and there's a chance that the stack or the bonnet would become dislodged or become disconnected.

[00:15:10] Speaker 00:
So by using this language saying that it does not describe a bonnet that can be contracted to hold the bonnet in place, which appears on A130,

[00:15:18] Speaker 00:
the patentee was providing a different reason than simply a rigid conical bonnet as Kamey represents.

[00:15:25] Speaker 00:
And this provides enough ambiguity so that there's not some clear and unequivocal disclaimer of all bonnets that may statically contract.

[00:15:38] Speaker 00:
Turning back to the sufficiently grasped point, the key word here, again, is sufficiently.

[00:15:44] Speaker 00:
And in the court case Vidaria versus Google,

[00:15:48] Speaker 00:
This court was confronted with a construction of a term, images being substantially elevations.

[00:15:54] Speaker 00:
The district court held in that case that the images are supposed to be vertical, flat images, essentially entire elevations.

[00:16:02] Speaker 00:
And in doing so, read out the word sufficiently.

[00:16:04] Speaker 00:
This court reversed that judgment and said that spherical images and other types of images would be permitted so long as objects within those images were vertical and flat and essentially elevational views.

[00:16:18] Speaker 00:
And this was based off of the word substantially.

[00:16:20] Speaker 00:
Here, we're looking at the word sufficiently, which the ordinary definition of sufficiently is enough to meet the needs of a situation for a proposed use, as stated in A1083.

[00:16:33] Speaker 00:
And so we're looking for a bonnet that meets the purpose.

[00:16:37] Speaker 00:
And the purpose is to maintain its position on the ship stack and not come off.

[00:16:41] Speaker 00:
If intermittent contact is all that's required to do this, then that's a sufficient grasp.

[00:16:46] Speaker 00:
The district court, even, in making its ruling, you'll know, on A-20, did not use the word sufficient.

[00:16:52] Speaker 00:
It dropped that language from its description and just said, there's no grasp.

[00:16:56] Speaker 00:
And in reading out this key word, it's violating the law of this court, and it's creating a situation that is simply unattainable.

[00:17:09] Speaker 00:
With respect to Dr. Princevac,

[00:17:15] Speaker 00:
we disagree that any objections were waived.

[00:17:18] Speaker 00:
Dr. Princefax specifically testified that he was not basing his position on what a person having ordinary skill in the art would think when they saw Tabool on his expert work in the case.

[00:17:30] Speaker 00:
And so in doing so, created a situation where counsel filed objections to his testimony based on Federal Rule of Evidence 602 saying that there wasn't a proper foundation.

[00:17:39] Speaker 00:
Had he said it was his expert worker in the case, then it would have been proper to file

[00:17:44] Speaker 00:
an objection based off Rule 26 and Rule 37.

[00:17:48] Speaker 00:
Notwithstanding that, Rule 37 was designed to be self-executing to avoid having a trial where an expert brings in subject matter that was not originally in his expert report.

[00:18:00] Speaker 00:
Council also mentioned that throughout the specification, throughout the written description, there's only one kind of contraction that's discussed.

[00:18:09] Speaker 00:
But this again goes against the law of this circuit.

[00:18:11] Speaker 00:
The specification is not required to disclose more than even one embodiment.

[00:18:15] Speaker 00:
As long as the specification teaches the preferred embodiment, the claims are allowed to claim broader than the specification.

[00:18:21] Speaker 00:
And in this case, we have several situations where, for instance, one of the embodiments involves a cage with springy ribs that are then used to contract in a dynamic sense to decrease the circumference around the ship's stack.

[00:18:36] Speaker 00:
These don't appear in claim one.

[00:18:38] Speaker 00:
But they do appear in claims 8, 9, and 10, and 11.

[00:18:42] Speaker 00:
And it would therefore be improper to read into claim one these limitations of this dynamic contraction.

[00:18:49] Speaker 00:
And while there may be other forms of dynamic contraction that could still exist in claim one, we then run into this issue of tightenable and tightening, which are used in other claims, which are used to mean constricting in a dynamic sense.

[00:19:02] Speaker 00:
And this court has held that when different words are used in different claims, there's a presumption that they should have a different meaning.

[00:19:09] Speaker 00:
And so if we were to prescribe the same mean to them, we'd be filing the doctrine of claim differentiation.

[00:19:15] Speaker 00:
Claim one is written very broadly and is written in a way that it can cover all forms of contraction.

[00:19:19] Speaker 00:
And in later claims, the patentee limited the forms of contraction to dynamic forms of contraction.

[00:19:26] Speaker 00:
So there's no reason now to import from this specification only dynamic forms of contraction.

[00:19:31] Speaker 00:
If you're honest, I have no further questions.

[00:19:35] Speaker 00:
OK.

[00:19:35] Speaker 03:
Thank you, Mr. Lawrence.

[00:19:36] Speaker 03:
And we thank both counsels.

[00:19:37] Speaker 03:
The case is submitted.