[00:00:00] Speaker 00:
Cloud Farmer Associates versus Volkswagen Group of America.

[00:00:31] Speaker 00:
Ready?

[00:00:31] Speaker 00:
Mr. Kelleher.

[00:00:33] Speaker 00:
May I please report?

[00:00:35] Speaker 01:
This case, of course, involves a set of inventions that make a car ride more calm.

[00:00:42] Speaker 01:
It prevents tilters going around a curve.

[00:00:45] Speaker 01:
It can alleviate the shock of going over a bump in the road.

[00:00:49] Speaker 01:
There's four claim construction issues that are really before the court that are the basis of the stipulation of non-infringement and invalidity.

[00:00:56] Speaker 01:
And the primary crux

[00:00:59] Speaker 01:
of the problems exemplified by the fact that the district court construed the word prevent flow as to mean exactly the same thing as prevent any flow.

[00:01:10] Speaker 01:
And you have two different independent claims in the oldest patent.

[00:01:13] Speaker 01:
Claim one says it's for limiting tilt and it prevents flow.

[00:01:18] Speaker 01:
Claim 16 doesn't say it's just for limiting tilt and it says prevent any flow.

[00:01:23] Speaker 01:
And it's that difference

[00:01:25] Speaker 01:
that is exemplified by the scope of all the inventions that are really disclosed in the specifications.

[00:01:31] Speaker 00:
So this argument is like a statutory construction argument.

[00:01:34] Speaker 00:
They use the prevent flow, which we think means prevent what it says, prevent flow, stop flow.

[00:01:41] Speaker 00:
But you're suggesting that because in another claim they use prevent any flow, then that forces us to construe prevent flow as being to prevent some flow?

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

[00:01:55] Speaker 01:
For example, if it prevented 90% of the fluid from flowing, it would have prevented flow.

[00:01:59] Speaker 01:
But it wouldn't be, for example, a hermetic seal preventing any flow.

[00:02:04] Speaker 01:
And that's the difference in the structure of the claims.

[00:02:06] Speaker 01:
And there's plenty of support in the four specifications for this idea.

[00:02:10] Speaker 00:
So you want us to construe prevent flow and claim one is prevent some flow.

[00:02:15] Speaker 01:
I think hinder is the word we use, Your Honor.

[00:02:17] Speaker 01:
But in essence, yes, prevent some is what it would cover.

[00:02:21] Speaker 01:
And the words that they use is any flow, prevent any flow.

[00:02:25] Speaker 01:
In claim 16, your honor.

[00:02:26] Speaker 01:
Right.

[00:02:27] Speaker 01:
But not in claim one, where it says limit.

[00:02:29] Speaker 03:
And prevent some is definite?

[00:02:32] Speaker 01:
Yes, your honor.

[00:02:33] Speaker 01:
I think it is.

[00:02:35] Speaker 03:
Like how much?

[00:02:41] Speaker 01:
There would have to be obstruction of the tilting as well, your honor, for the preventing of the flow limitation to be met.

[00:02:50] Speaker 03:
Well, I think prevent some flow would be prevent from a tiny little bit to a whole lot.

[00:02:58] Speaker 03:
And how does the public know where that line is going?

[00:03:05] Speaker 01:
It's going to depend, Your Honor, on the facts of what driving is like.

[00:03:10] Speaker 01:
When you go around a turn that maybe is just one

[00:03:14] Speaker 01:
percent or one degree, you really don't need this functionality.

[00:03:17] Speaker 01:
But when you start getting into more extreme terms, turns to URNS, that's when you need this functionality.

[00:03:24] Speaker 01:
And that's where it'll be definite that the claims are being practiced.

[00:03:27] Speaker 00:
I don't understand your answer.

[00:03:28] Speaker 00:
I mean, you used all kinds of adjectives to describe extreme or whatever.

[00:03:33] Speaker 00:
These are all mushy words that, in my view, would create a problem for you on an indefiniteness evaluation, right?

[00:03:42] Speaker 00:
public supposed to know the parameters of what you're saying?

[00:03:47] Speaker 01:
Your Honor, I would say we looked at the specification to help alleviate any concerns.

[00:03:51] Speaker 00:
So what is it?

[00:03:52] Speaker 00:
I mean, I think there are places you would agree that in the specification they talk substantially about stopping all flow, right?

[00:04:00] Speaker 00:
Yes.

[00:04:00] Speaker 00:
And so you come up with one portion of the specification that seems to suggest that there could be some flow, right?

[00:04:09] Speaker 00:
Yes, Your Honor.

[00:04:10] Speaker 04:
And that portion deals with the absorption of the shock.

[00:04:15] Speaker 01:
It does.

[00:04:16] Speaker 01:
It's a combination of a tilt controller and a shock absorber, both of which are similar in that what they do.

[00:04:22] Speaker 01:
What they both do is they prevent or hinder or eliminate.

[00:04:26] Speaker 04:
It seems to me that the asserted claims and the accused claims only, only involve tilt control.

[00:04:33] Speaker 04:
The difference in language that you're citing is for shock absorption.

[00:04:38] Speaker 01:
Your Honor, the full scope of the claims, I think, includes combinations of tilt controllers and shock absorbers, both of which inhibit the movement of one structure in the car toward another structure of the car.

[00:04:53] Speaker 04:
The claim or the patent, maybe, I would agree with that.

[00:04:58] Speaker 04:
But the usage of the words prevent any flow, and the words just prevent, they're using different parts of the claim.

[00:05:08] Speaker 01:
Yes, and in different claims.

[00:05:10] Speaker 01:
And different functions.

[00:05:14] Speaker 01:
That is correct, Your Honor.

[00:05:16] Speaker 01:
And I think the different functions is one eliminates and the other hinders.

[00:05:22] Speaker 01:
So there are numerous passages in the specifications of the four patents.

[00:05:26] Speaker 04:
If that's the case, then how does claim differentiation apply here?

[00:05:29] Speaker 01:
I don't think the doctrine of claim differentiation really applies here, Your Honor.

[00:05:34] Speaker 01:
We're not talking about one independent claim and a dependent claim where we're trying to say that the limitation of the dependent should be read into the independent.

[00:05:41] Speaker 01:
We have two different independent claims, and we're talking about the fact that different language is used in the two, and its differences in degree and emphasis.

[00:05:50] Speaker 01:
And we're saying that that's one of the canons of claim construction, that the use of different words means different scope applies.

[00:05:56] Speaker 01:
So that's a little bit different from the doctrine of claim differentiation.

[00:06:01] Speaker 01:
There are plenty of passages in the four specifications, your honors, using words like resistance, cushioning, dampening, partially restrain, flow at a reduced rate, and even tilt control would be slower and not as complete.

[00:06:17] Speaker 01:
These are the kinds of passages that are explaining that the invention is not limited to merely an absolute hermetic seal that prevents every single molecule of fluid from flowing.

[00:06:29] Speaker 01:
I'd like to move on to the three means plus function terms, unless you have any more questions about this issue.

[00:06:36] Speaker 00:
These three means plus function terms all apply, all exist in claim one?

[00:06:43] Speaker 01:
No, Your Honor.

[00:06:45] Speaker 01:
The prevent and seal terms can be found in almost every single claim of the four patents in suit.

[00:06:52] Speaker 01:
I think there's one claim in suit, perhaps, in the last patent, the 616, that I think does not have.

[00:06:57] Speaker 01:
those two terms, rather the three means plus function limitations all existing only the fourth patent, the 616.

[00:07:04] Speaker 00:
My question goes to just the logistics of whether or not we have to reach all of these, all three questions.

[00:07:11] Speaker 01:
I think then, Your Honor, the answer would be, would be yes if I am thinking properly about the way that the one claim that doesn't have prevent in it in the 616.

[00:07:17] Speaker 01:
Thank you.

[00:07:20] Speaker 01:
So, Your Honor, first I think I'd like to

[00:07:23] Speaker 01:
jumped to the one that was briefed last in the briefs.

[00:07:25] Speaker 01:
And that's the means for activating the suspension system.

[00:07:29] Speaker 01:
We have a slightly strange circumstance here where what we say is the algorithm that permits that function to work is recited in both the claim and in the specification.

[00:07:44] Speaker 01:
And it's a numerical table setting forth.

[00:07:46] Speaker 00:
Right.

[00:07:46] Speaker 00:
But haven't our cases suggested or said that a table is not sufficient disclosure?

[00:07:52] Speaker 01:
No, Your Honor, I don't think so.

[00:07:54] Speaker 01:
I think the case law says that an algorithm can be disclosed in any number of ways.

[00:07:59] Speaker 01:
It can be disclosed in text, in flow charts, in formulae.

[00:08:03] Speaker 01:
And I think in this circumstance, this table discloses.

[00:08:07] Speaker 00:
What does aristocrat say?

[00:08:09] Speaker 00:
Doesn't it call out specifically that a table was just a description of the claim function and not sufficient?

[00:08:15] Speaker 01:
My memory about aristocrat, Your Honor, is that the so-called table that was in the specification was just a series of black boxes.

[00:08:21] Speaker 01:
talking about functions.

[00:08:22] Speaker 01:
Whereas here we have numbers saying if the angle and the speed are x and y, then engage the invention.

[00:08:32] Speaker 04:
And that's different.

[00:08:33] Speaker 04:
When I look at it, let's assume it's an algorithm just for the purposes of my question, it seems that the table deals

[00:08:41] Speaker 04:
It's an algorithm for dealing with the movement of the tilting.

[00:08:46] Speaker 04:
It provides different ratios that are used to keep the tilting.

[00:08:53] Speaker 04:
But the claim reads for means for activating.

[00:08:58] Speaker 04:
So on one hand, your algorithm seems to me to say, this is what's going to happen once it's activated.

[00:09:05] Speaker 04:
But your claim reads means for activating.

[00:09:08] Speaker 04:
And this algorithm doesn't do that.

[00:09:11] Speaker 01:
It's the processor that activates the suspension control system and the way that that activation function is controlled.

[00:09:22] Speaker 04:
The processor means the computer.

[00:09:24] Speaker 01:
The computer.

[00:09:24] Speaker 01:
What is the algorithm then that works with that processor?

[00:09:29] Speaker 01:
It's programmed with the table.

[00:09:30] Speaker 01:
The specification says here's the table to program.

[00:09:33] Speaker 01:
Where is it?

[00:09:33] Speaker 01:
Where is it in your claim?

[00:09:37] Speaker 01:
The table is verbatim recited in the claim.

[00:09:41] Speaker 04:
Are you talking about this table, the table that deals with vehicle speed and turning angle to activate?

[00:09:47] Speaker 01:
Yes, Your Honor, I think there's a table in the claim five.

[00:09:51] Speaker 04:
But that's not an algorithm for activating.

[00:09:53] Speaker 04:
That's an algorithm for the function that occurs once activation has happened.

[00:09:59] Speaker 01:
No, Your Honor, the table is consulted by the processor

[00:10:03] Speaker 01:
before the activation occurs.

[00:10:05] Speaker 01:
It's when the conditions that occur, as recited in the algorithm, occur that the activation function in the processor is triggered.

[00:10:12] Speaker 04:
Unless you point for an algorithm that works with the computer, the processor, as you say, for activation purposes, unless you have an algorithm, then it seems to me you have a problem.

[00:10:26] Speaker 01:
Well, the processor could just send the signal, send go.

[00:10:30] Speaker 04:
But the processor alone isn't enough.

[00:10:33] Speaker 04:
That's what aristocrats is all about.

[00:10:35] Speaker 01:
Exactly.

[00:10:36] Speaker 01:
The processor wouldn't know when to engage, but for being programmed with this table.

[00:10:41] Speaker 04:
With this one, show me the table.

[00:10:44] Speaker 04:
I want to make sure I'm looking at the same table.

[00:10:48] Speaker 01:
Yes, sir.

[00:10:48] Speaker 01:
So column 14 is where it appears in the

[00:10:52] Speaker 01:
in the claims.

[00:10:53] Speaker 00:
Which, were we looking at the 354 pattern?

[00:10:55] Speaker 01:
616, your honor.

[00:10:57] Speaker 01:
616, okay.

[00:10:58] Speaker 01:
So actually, I'm sorry, column 15 is where it is.

[00:11:00] Speaker 03:
Vehicle speed in miles per hour in one column and turning angle to activate suspension in degrees in the other column.

[00:11:08] Speaker 03:
Yes, your honor.

[00:11:08] Speaker 03:
Going from 120 miles an hour down to 10 miles an hour.

[00:11:11] Speaker 01:
Yes.

[00:11:12] Speaker 01:
Right?

[00:11:12] Speaker 01:
Yes.

[00:11:13] Speaker 03:
That is your algorithm.

[00:11:16] Speaker 01:
Yes, your honor.

[00:11:17] Speaker 01:
The turning angle is the angle of the tires.

[00:11:19] Speaker 01:
Not, for example, the steering wheel, but it's the tires of the car.

[00:11:23] Speaker 04:
And it's when those conditions... So I see that algorithm applying for controlling, not activating.

[00:11:31] Speaker 01:
Well, it's the processor consults those conditions and activates if they're satisfied.

[00:11:41] Speaker 04:
What conditions?

[00:11:43] Speaker 01:
Yes, yes.

[00:11:43] Speaker 01:
So if the car is traveling at 40 miles per hour and the wheels go to a 7 or 8 degree angle, then the processor says suspension system activated.

[00:11:54] Speaker 04:
The claim says means for activating said means for controlling.

[00:11:58] Speaker 04:
So you have a means for activating and a means for controlling.

[00:12:02] Speaker 04:
Yes.

[00:12:02] Speaker 04:
Your table, to me, seems to be the means for controlling.

[00:12:06] Speaker 04:
You have an algorithm, but you don't have one for activation.

[00:12:11] Speaker 04:
And I guess you're saying that this table is there.

[00:12:16] Speaker 01:
I say this is part of the means for activating your arm.

[00:12:18] Speaker 01:
This is what's programmed in the processor.

[00:12:20] Speaker 01:
The means for controlling the suspension, those are all of the other elements that are in all of the other drawings of the patents.

[00:12:26] Speaker 01:
Those are the cylinders where the fluid flows or doesn't flow.

[00:12:31] Speaker 01:
And those are the means for controlling the suspension.

[00:12:36] Speaker 01:
And the processor sends a signal, for example, to the solenoid that's in the cylinder to engage, and that's what controls suspension.

[00:12:42] Speaker 04:
Well, the district court found the means for activating didn't address the means for controlling.

[00:12:50] Speaker 04:
Anyway, now with respect to this issue that we're talking about.

[00:12:53] Speaker 04:
Right.

[00:12:55] Speaker 04:
You're saying that the district court erred in its means plus frontal limitation of means for activating.

[00:13:02] Speaker 01:
Yes, Your Honor.

[00:13:03] Speaker 04:
So setting aside the controlling,

[00:13:05] Speaker 04:
This table is the only algorithm that you have with respect to for activating?

[00:13:11] Speaker 01:
Yes, Your Honor.

[00:13:11] Speaker 01:
This table would tell the processor when to activate the means for controlling the suspension.

[00:13:16] Speaker 01:
The means for controlling the suspension is separate.

[00:13:18] Speaker 01:
And we disagree with the judge on that as well, because he seemed to believe that control necessarily means dictatorial control of every single aspect.

[00:13:28] Speaker 01:
And that's inconsistent with all of the portions of the specifications saying that pushing or limiting is sufficient.

[00:13:35] Speaker 00:
Why don't you reserve the remainder and let's hear from the other side.

[00:13:42] Speaker 00:
Good morning.

[00:13:43] Speaker 00:
So you're splitting time, so we're going to start your clock at 13 minutes.

[00:13:46] Speaker 05:
Thank you, Your Honor.

[00:13:48] Speaker 05:
May it please the court.

[00:13:50] Speaker 05:
When the descriptions are in the specifications of the invention and the statements made during prosecution are so consistently and so unambiguously linked to one claim construction result,

[00:14:04] Speaker 05:
as they do in this case, for the sealing and prevent terms.

[00:14:09] Speaker 05:
Minor differences in the wording of the claims cannot change that outcome.

[00:14:15] Speaker 05:
And that proposition applies in this case, whether you want to call it claim differentiation or not.

[00:14:22] Speaker 00:
Well, what's minor to you may not be minor to everyone.

[00:14:25] Speaker 00:
I mean, why isn't it probative, at least, that you've got one claim that says prevent flow, and you've got one that says prevent any flow, that that shouldn't at least

[00:14:35] Speaker 00:
give us some clue that preventing flow does not necessarily mean any flow?

[00:14:43] Speaker 05:
For several reasons, Your Honor.

[00:14:45] Speaker 05:
Number one, the construction that would result from that view would be inconsistent with numerous statements, we find, that describe the invention

[00:14:56] Speaker 05:
as preventing, as stopping the flow.

[00:14:58] Speaker 00:
Yeah, but he's got one section of the specification that suggests that it doesn't prevent all.

[00:15:05] Speaker 05:
I disagree with that because the section that CloudFront points to describes the shock absorbing function.

[00:15:12] Speaker 05:
And no doubt there are descriptions in these patents, in all of the patents, that describe that the device can be used as a shock absorber when the vehicle does not tilt sufficiently to activate the tilt sensing means

[00:15:26] Speaker 05:
That is, that mercury switch mounted at the bottom of the car.

[00:15:29] Speaker 05:
But once the vehicle tilts beyond a predetermined degree to activate those sensing means, then the seal is closed and the fluid flow is stopped.

[00:15:42] Speaker 05:
And the patents explain that functionality for every single embodiment in all the patents.

[00:15:49] Speaker 03:
Why don't you take us back to how they prevent any flow got into the client

[00:15:56] Speaker 05:
Yes, so during prosecution of the 354 patent, the first patent, the applicant described in claim, what became claim 16, the ceiling means as preventing any substantial flaw.

[00:16:14] Speaker 05:
In response to a rejection, an indefiniteness rejection, the applicant struck the word substantial for the claim to read prevent any flaw.

[00:16:25] Speaker 05:
Now, what CloudFarm seems to be arguing that by that amendment, they turned the system of claim 16 from a system that only reduced fluid flow to a system that stopped fluid flow, and that that amendment had the opposite effect for claim 1 and claim 8.

[00:16:40] Speaker 03:
Well, if claim 1 was meant to be stop any flow, and they wanted claim 1 and claim 16 to be consistent, then why didn't they amend claim 16 just to say prevent flow?

[00:16:56] Speaker 05:
I think the indefinite rejection specifically related to the word substantial.

[00:17:01] Speaker 05:
So that's what they deleted.

[00:17:02] Speaker 03:
So you take the word substantial out and it just says prevent flow.

[00:17:09] Speaker 03:
And if everybody knows that prevent flow means prevent all flow, then everything is consistent.

[00:17:14] Speaker 05:
It would have been more consistent.

[00:17:16] Speaker 03:
That's true.

[00:17:17] Speaker 03:
Do you think there's some little daylight here?

[00:17:20] Speaker 03:
Because in amending this particular claim 16 to say prevent any flow,

[00:17:26] Speaker 03:
They mean in 16, any flow, but in 1, they don't mean all flow.

[00:17:31] Speaker 05:
I don't think there is much daylight, because at the very same time, in the same amendment, the applicant described his invention as a whole, not with respect to any particular embodiments or any particular pending claims, as preventing any fluid flow and preventing any further tilting.

[00:17:49] Speaker 05:
And that statement in the very same amendment, as well as all the other statements from the intrinsic evidence,

[00:17:55] Speaker 03:
The second statement in the record, where is the second statement in the record?

[00:18:00] Speaker 05:
That is on the pending page 202.

[00:18:09] Speaker 00:
Can you take us over to the means for activating issue that we were talking about with your friend?

[00:18:14] Speaker 05:
In particular, let me address the table that is at the core of the dispute.

[00:18:19] Speaker 05:
That table lists combinations of speed and angle values

[00:18:25] Speaker 05:
at which an activation signal is sent.

[00:18:29] Speaker 05:
It is part of the function of this means plus function limitation, and merely restating the function in the specification is not sufficient.

[00:18:38] Speaker 05:
The table does not describe an algorithm.

[00:18:40] Speaker 05:
It's not a step-by-step procedure to get to these results.

[00:18:45] Speaker 05:
It describes an outcome.

[00:18:47] Speaker 05:
And conceptually, it is actually very similar to the table we see in the aristocrat case.

[00:18:52] Speaker 05:
If you look at page 1335 of the aristocrat case, that case dealt with the electronic slot machines.

[00:19:01] Speaker 05:
And the patent contained a table that listed combinations of symbol positions of that slot machine at which the machine would pay out a price.

[00:19:13] Speaker 05:
And this court said, this is not an algorithm.

[00:19:16] Speaker 05:
It's not a step-by-step procedure to get to this outcome.

[00:19:20] Speaker 05:
It is an outcome.

[00:19:21] Speaker 05:
And it doesn't describe an algorithm.

[00:19:26] Speaker 05:
And another point on that issue, Your Honors, is if that table was an algorithm, and we disagree with that for all the reasons I stated, but if it was an algorithm, this claim limitation wouldn't be a means plus function limitation in the first place.

[00:19:41] Speaker 05:
It would have sufficient structure.

[00:19:43] Speaker 05:
Because the table appears in the claim.

[00:19:45] Speaker 05:
Because the table, the exact same table is in the claim.

[00:19:48] Speaker 05:
However, CloudFarm always agreed with us that this is a means plus function limitation, and it's certainly too late to effectively argue the opposite at this point.

[00:20:05] Speaker 05:
Allow me to move on to the means for controlling the suspension system, which you find in frame five of the 616 patent.

[00:20:13] Speaker 05:
I'd like to focus on the issue of the corresponding structure.

[00:20:17] Speaker 05:
CloudFarm mainly

[00:20:18] Speaker 05:
disputes the district court's construction of the function.

[00:20:22] Speaker 05:
Now, the district court applied the claim language verbatim.

[00:20:26] Speaker 05:
The CloudFarm says it's incorrect.

[00:20:28] Speaker 05:
But leaving that aside, we disagree with that.

[00:20:30] Speaker 05:
But leaving that aside, whether you take the function as construed by the district court or the function as construed by CloudFarm, the outcome would be the same.

[00:20:39] Speaker 05:
There is no corresponding structure.

[00:20:43] Speaker 05:
This court, in the medical instrumentation case, explained that,

[00:20:48] Speaker 05:
The public is entitled to precisely know what kind of structure is covered here.

[00:20:54] Speaker 05:
And the structure must be clearly linked to the function.

[00:20:57] Speaker 05:
None of this is present in this case.

[00:21:01] Speaker 05:
And the best evidence is CloudFarm's own proposed construction of the corresponding structure.

[00:21:06] Speaker 05:
It is self-drafted.

[00:21:08] Speaker 05:
It doesn't appear in the patent.

[00:21:09] Speaker 05:
And CloudFarm is unable to point you to any section in the patent where the structure is described, succinctly described.

[00:21:17] Speaker 05:
let alone clearly linked to the function you find in the claim limitation.

[00:21:24] Speaker 03:
When your adversary has to win on each one of these points, you only have to win on one.

[00:21:31] Speaker 05:
You mean within that claim limitation?

[00:21:32] Speaker 03:
Absolutely right.

[00:21:33] Speaker 03:
Several limitations for which there is no corresponding structure, so long as you can sustain one, the patent's invalid.

[00:21:40] Speaker 03:
He's got to overcome every single one of the objections.

[00:21:46] Speaker 05:
That's true as between the means for activating and the means for controlling, because they both appear in claim five of the 616.

[00:21:55] Speaker 05:
The third means plus function limitation, the means for sensing, appears in claim one of the 616 patent.

[00:22:02] Speaker 05:
So at least that the court has to deal with in light of the invalidity.

[00:22:08] Speaker 05:
That said, the prevent and sealing terms appear in all claims

[00:22:13] Speaker 05:
but claim 5 of the 616 patent.

[00:22:17] Speaker 05:
So allow me to finally get to the sensing means limitation of claim 1 of the 616 patent.

[00:22:25] Speaker 05:
Here you have a clear waiver of CloudFarm's argument.

[00:22:30] Speaker 05:
In the district court, they proposed a microprocessor as the corresponding structure.

[00:22:35] Speaker 05:
In this court, they proposed a speedometer.

[00:22:39] Speaker 05:
They never brought this up in the district court.

[00:22:43] Speaker 05:
This court's case law, finding waiver, plainly applies.

[00:22:47] Speaker 05:
As this court has stated in Finnegan, a party's argument should not be a moving target.

[00:22:53] Speaker 05:
And in this particular scenario, the case Triton Tech is also applicable in that case, just like here a party changed its position on what the corresponding structure allegedly is.

[00:23:10] Speaker 05:
One point I have to answer in response to what CloudFarm brought up in the reply brief.

[00:23:16] Speaker 05:
CloudFarm pointed to the interactive gift express case as allegedly supporting its position, saying that they can point to other parts of the specification.

[00:23:28] Speaker 05:
That holding of interactive gift express only applies if the position on claim construction hasn't changed.

[00:23:35] Speaker 05:
Here, the position of CloudFarm has changed.

[00:23:38] Speaker 05:
And a party may not do so on appeal.

[00:23:40] Speaker 05:
And Interactive Gift Express itself actually says as much in dictum.

[00:23:46] Speaker 05:
With that, I will conclude.

[00:23:47] Speaker 05:
Thank you very much for your time.

[00:23:48] Speaker 05:
Thank you.

[00:23:55] Speaker 02:
Thank you, Mark.

[00:23:57] Speaker 02:
I represent the Appellee ZF stock.

[00:24:01] Speaker 02:
We make the shock absorbers that go into the cars that are used by Mr. Wrightbach's client, Volkswagen of America.

[00:24:08] Speaker 02:
I just want to make a few very quick points.

[00:24:10] Speaker 02:
One, we're only defendants on three of the patents, not the 616.

[00:24:14] Speaker 02:
Having said that, they are all related.

[00:24:17] Speaker 02:
I want to briefly address the argument about claims 1 and 16 that appellant raised.

[00:24:24] Speaker 02:
It's interesting to note that in claims 16, responding to your honor's point, claims 16, they're all tilt controllers for sure.

[00:24:32] Speaker 02:
But claim 16 does say prevent any flow.

[00:24:34] Speaker 02:
But interestingly, right after that, if you look on appendix page 119,

[00:24:38] Speaker 02:
It says to prevent any flow of fluid from one portion to the other portion of the chamber and thus prevent tilting.

[00:24:46] Speaker 02:
So even though it's preventing any flow, it's preventing tilting.

[00:24:50] Speaker 02:
It doesn't say prevent any tilting, it says prevent tilting.

[00:24:54] Speaker 02:
So clearly throughout the spec, when they were using the word prevent, they mean to stop.

[00:24:59] Speaker 02:
There was absolutely no question about that.

[00:25:01] Speaker 02:
There are indeed passages in the patents, we agree, that talk about

[00:25:05] Speaker 02:
a damping function, but as Mr. Wrightback correctly points out, all of those deal with the situation where we're talking about the shock absorbing function, not the tilt function.

[00:25:16] Speaker 02:
And I think the best example of that is if we look at appendix page 118 again in the 354 pattern, we can see at column 5, lines 51 to 67, which the appellant cites as indicating the shock absorbing function,

[00:25:35] Speaker 02:
But directly after that, after they talk about that, they say as it is met with resistance, cushioning occurs.

[00:25:42] Speaker 02:
Then it goes on to say should a tilt be encountered as a car goes around a turn, the sensor will activate the solenoid 36 which will close the seal so that there is no longer any opening in the piston assembly and lock plate.

[00:25:56] Speaker 02:
Fluid in the bottom can then no longer enter the upper chamber and movement of the body downward is prevented.

[00:26:03] Speaker 02:
So they're very clearly distinguishing between cushioning on the one hand during the shock absorbing function and preventing any further movement at all when you get to an extreme tilt.

[00:26:14] Speaker 02:
And the last point I wanted to raise is even though we are not sued on the 616 patent, they are all related patents.

[00:26:20] Speaker 02:
And if you look at appendix page, I believe it is appendix page 162 in the 616 patent, at column three, they discuss

[00:26:32] Speaker 02:
that particular invention.

[00:26:33] Speaker 02:
And there they talk about means to communicate.

[00:26:35] Speaker 02:
I'm reading it line 21 now in the 616 patent at column 3.

[00:26:39] Speaker 02:
It says, means to communicate the preset maximum angle caused a sense, excuse me, sensed by the sensing means to the ceiling means to reduce or prevent any further fluid flow.

[00:26:51] Speaker 02:
And likewise it goes on to say, and thus prevent or decelerate further movement of the piston.

[00:26:56] Speaker 02:
So when they wanted to distinguish between preventing and reducing

[00:27:00] Speaker 02:
or decelerating, they know how to say that.

[00:27:04] Speaker 02:
They're clearly distinguishing in preventing means stop, and it doesn't mean hinder.

[00:27:09] Speaker 02:
Thank you, Your Honor.

[00:27:17] Speaker 01:
Thank you.

[00:27:18] Speaker 01:
Your Honors, on the sensing means construction that was proposed by us below, it appears in Judge Stark's opinion at appendix page 61,

[00:27:26] Speaker 01:
And it's a lot more than just a microprocessor.

[00:27:28] Speaker 01:
We did not say that it means for sensing just a microprocessor.

[00:27:32] Speaker 01:
We said it was a whole bunch of other structures, including speed signal.

[00:27:36] Speaker 01:
It came out of left field when Judge Stark said that somehow there was no speed signal disclosed in the specification.

[00:27:41] Speaker 01:
We are merely pointing to the fact that there's clear disclosure of a speedometer or an RPM sensor in the paragraph directly after the rest of the structure in the specification.

[00:27:52] Speaker 01:
As for the suspension control system,

[00:27:55] Speaker 01:
Again, this is in the 616, and Judge Stark construed it to basically require absolute dictatorial control.

[00:28:03] Speaker 01:
But in the field of the invention, right at the beginning of the patent, it said it's a suspension control system for suppressing vehicular rolling motion, i.e.

[00:28:12] Speaker 01:
the tendency of the vehicle to tilt when the vehicle turns a corner.

[00:28:18] Speaker 01:
suppressing tilt is part of the invention.

[00:28:21] Speaker 01:
And that runs through the difficulty with a lot of these clay constructions.

[00:28:25] Speaker 01:
So I yield back the balance of my time.

[00:28:26] Speaker 01:
Thank you.

[00:28:27] Speaker 01:
We thank both sides and the case is submitted.