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

[00:00:07] Speaker 01:
May it please the court?

[00:00:09] Speaker 01:
The inventions of the patents today, the 008 and the 564, are systems and methods using GPS receivers in a base station to track, that is, determine a location, of freight containers in big boxes you are all familiar with.

[00:00:27] Speaker 01:
in the densely packed environment of the freight yard, which required a type of accuracy that just plain old GPS didn't provide certainly at the time.

[00:00:39] Speaker 01:
And so this was something rather noteworthy.

[00:00:43] Speaker 01:
The inventors found the key was to use the location of the receivers, which were attached to the containers at two critical times.

[00:00:55] Speaker 01:
One,

[00:00:56] Speaker 01:
whenever a box or container was picked up, and then again, when it was put down.

[00:01:03] Speaker 01:
And by inferring the location of the container from the receiver, which was attached, at those critical times, you could track and say, whenever you wanted, where your containers were, and put some additions to the base station, what was in those containers, et cetera.

[00:01:22] Speaker 01:
We're here today, it's done some re-judgment,

[00:01:26] Speaker 01:
summary judgment of literal infringement based on what we contend was an erroneous claim construction of the term attaching or attach.

[00:01:34] Speaker 01:
And even if it wasn't an erroneous instruction, we're also here because there was summary judgment of no infringement under the doctrine of equivalence.

[00:01:42] Speaker 04:
So Mr. Max, you do not challenge summary judgment of no literal infringement under the district court's claim construction?

[00:01:50] Speaker 04:
That's correct.

[00:01:51] Speaker 01:
OK.

[00:01:52] Speaker 01:
If I may begin with the claim construction.

[00:01:55] Speaker 01:
The parties below in the district court noted that no one said that attach was a term of art, meaning special meaning.

[00:02:05] Speaker 01:
The parties agreed.

[00:02:07] Speaker 01:
The plain and ordinary meaning should control.

[00:02:10] Speaker 01:
And when you look to the plain and ordinary meaning of attach, when this court looked to it in South Co., and other courts, and MVW, and Royal Typewriter, and a number of other cases, we cited.

[00:02:24] Speaker 01:
Every court to speak on the issue says, well, yes, the ordinary meaning of attach includes both direct and indirect attachment or connection.

[00:02:34] Speaker 01:
Even the dictionary definition that VIT gave us below says join or connect, among other definitions.

[00:02:45] Speaker 01:
We haven't seen a single case from VIT to the contrary about what the ordinary meaning of attach is.

[00:02:53] Speaker 01:
So what we have here is the district court that deviated from that ordinary meeting.

[00:02:57] Speaker 01:
And of course, in claim construction, that can be proper if you have a case where the patentee acted as his or her own lexicographer.

[00:03:06] Speaker 01:
But no one claims that's the case here.

[00:03:08] Speaker 01:
It can also be proper if you have an express disavow or disclaimer of the full scope of the ordinary meeting.

[00:03:15] Speaker 01:
But again, no one claimed that happened here.

[00:03:18] Speaker 01:
There was a disavow argument.

[00:03:20] Speaker 01:
specific to vehicles that got rejected by the district court, and that was not killed.

[00:03:27] Speaker 01:
So under many decisions of this court, that's the end of it.

[00:03:30] Speaker 03:
Can I just ask you to focus back on something that you said in your introduction, something that's obviously very much keyed to the accused products.

[00:03:45] Speaker 03:
Put aside the accused products for a moment and just think about the patent

[00:03:50] Speaker 03:
written description.

[00:03:51] Speaker 03:
What in there focuses, as you described in, as you did in your introductory remarks, on the pick-up and drop-off times, as opposed to any time there's a request for the location?

[00:04:12] Speaker 01:
Sure.

[00:04:13] Speaker 01:
For instance, I would refer you to column six.

[00:04:17] Speaker 01:
lines, let's see, eight through about 15.

[00:04:21] Speaker 01:
This is from the second embodiment.

[00:04:25] Speaker 01:
And you can see there, actually, I'm starting on line 11, I guess.

[00:04:32] Speaker 01:
Additionally, or alternatively, the motion detector can initiate an operation when motion is detected, i.e.

[00:04:37] Speaker 01:
the movement of the container.

[00:04:41] Speaker 01:
use of motion sensors to turn on and turn off.

[00:04:44] Speaker 03:
Right, but here, I guess, is what I'm, the reason for the question.

[00:04:48] Speaker 03:
So that indicates that one thing that this system is supposed to be able to do is send location information from the transceiver, you know, drop and drop off.

[00:05:05] Speaker 03:
But it's just one example, and if indeed it says alternatively or what not,

[00:05:11] Speaker 03:
the summary of the invention, the claims talk about intermittent sending of the information.

[00:05:21] Speaker 03:
The summary of the invention talks about sending the information upon request.

[00:05:27] Speaker 03:
And I would think that that is a awfully strong reason to draw the conclusion in this context

[00:05:39] Speaker 03:
that the transceiver had better be actually on the container while it's sitting in the freight yard, not just for the 10 minutes that the handling vehicle is moving it to the location, picking up from location one, moving it to location number two.

[00:05:58] Speaker 03:
Because you would not then be able to get location upon request from the transceiver.

[00:06:06] Speaker 01:
OK.

[00:06:08] Speaker ?:
Excuse me.

[00:06:09] Speaker 01:
Well, the term intermittent, of course, is defined in the patent.

[00:06:13] Speaker 01:
And certainly from the embodiments, we know that... That just means it's not constant, right?

[00:06:19] Speaker 01:
That's how they define it.

[00:06:20] Speaker 03:
It's not just sending up a ping every second or two seconds or something, right?

[00:06:23] Speaker 03:
Right.

[00:06:24] Speaker 03:
Or maybe that would even be intermittent.

[00:06:25] Speaker 03:
Anyway, it's not constant.

[00:06:27] Speaker 01:
Yeah.

[00:06:28] Speaker 01:
Exactly.

[00:06:29] Speaker 01:
It's not pinging every five minutes and so forth.

[00:06:40] Speaker 01:
It seems to us that while it could be, well, perhaps I'm just understanding the question, the on-demand language you're referring to, you're saying this is in the claims?

[00:06:54] Speaker 03:
No, that's in the summary of the invention, isn't it?

[00:06:57] Speaker 03:
Right.

[00:06:57] Speaker 03:
On request?

[00:06:58] Speaker 03:
Right.

[00:07:01] Speaker 01:
So it could be done that way.

[00:07:04] Speaker 03:
Just to be clear, the reason that I'm focusing on this is let me posit for purposes of this that the word attach might mean a number of different things, but it depends on the context.

[00:07:18] Speaker 03:
And so I'm trying to understand in the context of this patent, the major difference it seems to me that is made by whether the transceiver is on the container for long periods of time while the container is sitting in the freight yard or

[00:07:34] Speaker 03:
is in proximity of the container by virtue of being attached to the handling vehicle during the ten minutes that the handling vehicle is holding the container is that in the former case the transceiver can send real-time information about where the container is to a certainty upon request anytime you want it.

[00:07:59] Speaker 01:
The transceiver can send it.

[00:08:02] Speaker 03:
Whereas the other

[00:08:03] Speaker 03:
system requires, gives you information that is historical the minute the handling vehicle drops the container off and moves away, which has a certain amount of reliability, but is not the same as getting the information upon request.

[00:08:21] Speaker 03:
And just to complete the picture, that context suggests to me that in here, in this patent, attach means actually on the container.

[00:08:34] Speaker 01:
I respectfully disagree.

[00:08:37] Speaker 01:
I think if the claim terms had basically elements of them that is in real time on demand, there might be something.

[00:08:47] Speaker 01:
But we have specific embodiments that certainly don't operate that way.

[00:08:52] Speaker 01:
It's true that in the way you posit it in the system and in these other embodiments, you would get the information of where the container is by going to the base station and say, well, where was it last put down?

[00:09:05] Speaker 01:
as opposed to the container being somewhere wherever it was last put down and having the receiver tell you where it is.

[00:09:12] Speaker 01:
It seems to me a distinction sort of without a difference in terms of the system and the method which we're trying to do is you need to end up knowing where your containers are.

[00:09:23] Speaker 01:
But if I might direct you to column five, line 31.

[00:09:35] Speaker 01:
Bear with me a moment.

[00:09:39] Speaker 01:
This is from the first embodiment.

[00:09:45] Speaker 01:
You can see it says, a database and storage is connected to the CPU and the storage information such as freight yard layout, container, inventory, and present position of the remote units or at least the last reported position.

[00:10:00] Speaker 01:
So it seems to us the invention

[00:10:04] Speaker 01:
could include, or at least, as it says, the last reported position.

[00:10:10] Speaker 01:
If I may, I'm running into a bit of time.

[00:10:13] Speaker 01:
Oh, please do.

[00:10:13] Speaker 01:
Yes.

[00:10:15] Speaker 01:
But we recognize that other panels of this court have held that the right meaning is something less than the ordinary meaning, even, frankly, in the absence of lexicography and expressed disclaimers.

[00:10:29] Speaker 01:
and some have called it implicit disclaimer and so forth, but we would point out that in none of these cases, and here I'm thinking most recently of ultimate pointer and exon and some others, you have sometimes passages in the specification that define the invention in terms of the narrower meaning.

[00:10:48] Speaker 01:
You have words like the invention is, the invention requires, or sometimes it's the important feature of the invention.

[00:10:57] Speaker 01:
We don't have any of that here.

[00:10:59] Speaker 01:
The invention is never said to be this thing including direct connection.

[00:11:05] Speaker 01:
Direct connection is never said to be an important feature.

[00:11:08] Speaker 01:
All we really have is the embodiment, which the inventor in the 08 paragraph, 08 patent at 4, 16 through 18 made clear were illustrative.

[00:11:22] Speaker 01:
All we really have is you infer the location of the container from the location of the receiver.

[00:11:29] Speaker 01:
Now, VIT says, aha, well, that can't possibly work unless you're directly connected.

[00:11:34] Speaker 01:
Ruling out all types of indirect connection is making it impossible to infer the location.

[00:11:40] Speaker 01:
We'd refer you to page 30 of our brief, the illustrations.

[00:11:44] Speaker 01:
A, in that illustration is the receiver on top of the roof of the container.

[00:11:49] Speaker 01:
B, the receiver on the holding bar a foot away.

[00:11:54] Speaker 01:
C, on top of the roof of the CHE.

[00:11:57] Speaker 01:
The thing is, first of all, there's no actual evidence.

[00:12:00] Speaker 01:
It's just attorney argument.

[00:12:01] Speaker 01:
But as a matter of common sense, if your system knew that the receiver result is going to be 12 inches or 2 feet to the left of the container because of how the vehicle is structured, the system would know that.

[00:12:13] Speaker 01:
There's no reason you can't infer that.

[00:12:16] Speaker 01:
And moreover, this court has held on several occasions that it doesn't amount to disclaimer

[00:12:24] Speaker 01:
if the particular structure makes it difficult to obtain the results you're talking about.

[00:12:28] Speaker 01:
That's not enough.

[00:12:30] Speaker 01:
And this court in decisioning.com, 527 F-1300, dealt with a similar argument.

[00:12:39] Speaker 01:
The claim term was verify the applicant's identity.

[00:12:42] Speaker 01:
The district court narrowed that to mean using certain information.

[00:12:47] Speaker 01:
The claim language itself didn't require any particular information.

[00:12:51] Speaker 01:
This court noted there's not much in the spec about how it would be done with other information, but said no, no disclaimer.

[00:13:00] Speaker 01:
The other way in which this court has held to go with narrow construction is disparagement, disparaging statements.

[00:13:09] Speaker 01:
Like in this case, it would have to be indirect attachment is antiquated.

[00:13:15] Speaker 01:
It has inherent inadequacies.

[00:13:16] Speaker 01:
It's deficient.

[00:13:18] Speaker 01:
We have none of that here either.

[00:13:20] Speaker 01:
All we really have is ordinary meat.

[00:13:22] Speaker 01:
I'm going to save my minute and 46 seconds unless you have a question.

[00:13:27] Speaker 02:
Yes, thank you.

[00:13:28] Speaker 02:
We'll save you rebuttal time.

[00:13:29] Speaker 02:
Let's hear from the other side.

[00:13:41] Speaker 02:
Ms.

[00:13:42] Speaker 02:
Chang.

[00:13:43] Speaker 00:
Thank you, Your Honor.

[00:13:44] Speaker 00:
May it please the court?

[00:13:45] Speaker 00:
I'd like to start by responding to what Judge Toronto had raised and the issue of what Appellant has identified as the critical feature of the invention is the pick-up and drop-off time and the exclusion of indirect infringement from the construction.

[00:14:02] Speaker 00:
I think it's helpful to understand what the district ruling, court rulings really were.

[00:14:06] Speaker 00:
Indirect attachment.

[00:14:07] Speaker 00:
So we can understand.

[00:14:08] Speaker 00:
Indirect attachment.

[00:14:09] Speaker 00:
Correct.

[00:14:10] Speaker 00:
And what you see is what they're arguing is they're challenging the court's exclusion of indirect detachment of any indirect detachment from the scope of the claims.

[00:14:19] Speaker 00:
But what you see is there was no such broad exclusion in the district court's claim construction.

[00:14:25] Speaker 00:
In addressing the attaching limitation, the district court said there were two questions it was answering.

[00:14:30] Speaker 00:
First was the question was, is there disavowal of claim scope?

[00:14:34] Speaker 00:
And it noted that the appellant was arguing there's no disavowal.

[00:14:38] Speaker 00:
that the scope of a detaching should broadly encompass both direct and indirect attachment.

[00:14:44] Speaker 00:
And on that question, the district court agreed with appellants.

[00:14:48] Speaker 00:
It found no disavowal.

[00:14:49] Speaker 00:
So there is no statement in the claim construction ruling, no finding, no ruling that there is no indirect attachment at all in the scope of the term attaching.

[00:15:01] Speaker 00:
So that's not really the issue on appeal.

[00:15:03] Speaker 00:
The issue on appeal is the second question that the district court answered.

[00:15:07] Speaker 00:
The second question is, is appellants proposed construction of to associate or connect with the plain and ordinary meaning of attached in the context of these patents?

[00:15:20] Speaker 00:
And if you frame it that way, that's what you see that the district court actually addressed in its claim construction order and in applying that claim construction and summary judgment.

[00:15:32] Speaker 00:
What it says is the plain and ordinary meaning of attached as used in the specification cannot cover merely associate or connect with.

[00:15:41] Speaker 00:
It may cover some indirect attachment, but not mere association or connection with.

[00:15:45] Speaker 00:
That it has to mean a fix or fasten to.

[00:15:48] Speaker 00:
That can be a fix or fasten to the container directly or indirectly.

[00:15:52] Speaker 00:
You'll see in the reply brief there was some mention of what if there was a mount on the

[00:15:57] Speaker 00:
freight container and you mounted the GPS, that would be an excluded indirect attachment.

[00:16:03] Speaker 00:
And I don't think the district court's ruling excludes that sort of indirect attachment, because that is still affixing to the freight container itself.

[00:16:11] Speaker 00:
So what we see on summary judgment is they didn't

[00:16:14] Speaker 00:
find no literal infringement because it excluded all indirect detachment.

[00:16:19] Speaker 00:
It restated its claim construction ruling that it can't just be mere association or connection with, that it has to denote something more than an abstract or attenuated link between two things.

[00:16:31] Speaker 00:
And that's what it found, that having a vehicle

[00:16:35] Speaker 00:
that has GPS in it, move around containers for a short amount of time, that is too attenuated, whether you want to call it direct or indirect attachment.

[00:16:46] Speaker 00:
So if you frame it in that light, you will see that the district court did, in fact, properly apply this court's claim construction precedent and look at the intrinsic evidence, look at the specification, and see what in this context did it mean when it said attach

[00:17:02] Speaker 00:
And what you see is in the specification and in the district court's claim construction order, they went through the specification in some detail and talked about what it was the invention was about.

[00:17:13] Speaker 00:
And contrary to what pellets have represented here, it's noteworthy that there is no mention anywhere, if you look through the patents, anywhere of any vehicles or any container handling equipment moving things around in the freight yard.

[00:17:26] Speaker 00:
It talks specifically about the freight containers, it being stored, it being stacked in its sitting places, it sometimes being misplaced.

[00:17:34] Speaker 00:
So that was not the focus of the invention.

[00:17:36] Speaker 00:
Every time they talked about the receiver, they talked about it being on the freight container.

[00:17:43] Speaker 00:
And I won't rehash in detail, but we had highlighted in our responsive red brief at pages 20 and 22 the specifications disclosures

[00:17:52] Speaker 00:
that talk about, and specifically there is a disclosure that says the remote unit that has the receiver in it is designed for mounting on top of or on the sides of the freight container.

[00:18:03] Speaker 00:
And that's kind of the idea that the district court focused on in construing this in the context of this patent.

[00:18:11] Speaker 00:
Now there's no determination of how it's mounted on the top of the sides, could be directly, it could be indirectly, but it has to be on and with that container.

[00:18:19] Speaker 03:
And if you see every time they talk about the real I know that the question of literal infringement under the words affix or fasten to is not in fact before us that has not been appealed but Why doesn't as a practical matter?

[00:18:37] Speaker 03:
Isn't this all about the length of time with which?

[00:18:44] Speaker 03:
during which the transceiver is

[00:18:49] Speaker 03:
in physical communication with the container?

[00:18:54] Speaker 03:
Because it is fastened, assuming that the handling vehicle is fastened to the container, which I hope is true for the time it's actually holding it and moving it around.

[00:19:09] Speaker 03:
The container's fastened to the handling vehicle, which is fastened to the transceiver, and it seems like there's a sort of a transitive property here.

[00:19:16] Speaker 03:
That means that the transceiver is, for that brief period, fastened to the container.

[00:19:25] Speaker 03:
But that issue isn't in front of us.

[00:19:27] Speaker 03:
But it all seems to do with how long the physical connection is maintained.

[00:19:33] Speaker 00:
That is one way that it can be characterized, but I think it's a little broader than that.

[00:19:38] Speaker 00:
Because what we're talking about is a mass of containers in a freight yard.

[00:19:43] Speaker 00:
So you have to think about the context of this operation of the freight yard.

[00:19:46] Speaker 00:
And so in that respect, yes, it does sometimes relate to the amount of time.

[00:19:51] Speaker 00:
But the great majority of time, containers are just sitting stacked in these big stacks you can see in the terminals.

[00:20:00] Speaker 00:
They're not associated with equipment, but it's still important to be able to track and know where those things are.

[00:20:08] Speaker 03:
But there are at least two ways to do that.

[00:20:10] Speaker 03:
One is ping the thing, and you actually find out unless somebody actually moved the transceiver.

[00:20:17] Speaker 03:
And the other is to say, oh, six weeks ago,

[00:20:20] Speaker 03:
we have a record and goodness we hope this thing wasn't moved in the interim without our knowing.

[00:20:27] Speaker 00:
Right and one of the issues the patent says that it was trying to address is how do we identify misplaced or lost items and if you're just relying on pick up and drop off you can't do that.

[00:20:38] Speaker 03:
Where is that?

[00:20:39] Speaker 00:
So that is

[00:20:51] Speaker 03:
Which pattern are you looking at?

[00:20:53] Speaker 00:
The 008.

[00:21:04] Speaker 00:
Yeah.

[00:21:04] Speaker 00:
So it is A83 in the appendix column two.

[00:21:08] Speaker 00:
It talks about keeping track of where a line, column two, lines 52, keeping track of where a particular freight container is located is a daunting task.

[00:21:21] Speaker 00:
considering the often dynamic nature of a freight container and repositioning cargo.

[00:21:31] Speaker 00:
I mean, the other point is, in addition to time, you think about taking their argument to the logical conclusion, just because I'm a container handling equipment and I pick up a container, to say that the GPS receiver located inside a computer that's inside the operating, the driver side,

[00:21:49] Speaker 00:
of the thing is now affixed to the container is like saying the steering wheel of the vehicle is now affixed to the container, or the windshield is affixed to the container.

[00:22:00] Speaker 03:
Right, but taking things to a logical conclusion with a term like attached, which can, I think you agree, include certain forms of indirect

[00:22:10] Speaker 03:
attachment that seems to be taking things to a logical conclusion is not appropriate to the task of claim construction.

[00:22:20] Speaker 00:
I agree.

[00:22:21] Speaker 00:
You can go a little far and pass the bounds, but I think the examples I'm giving you of a steering wheel or the windshield is

[00:22:28] Speaker 00:
exactly the same relationship as the GPS receiver to the freight container, right?

[00:22:33] Speaker 00:
Because we're talking about a physical box that's bolted into the driver area of the container handling equipment that's carrying a container versus a steering wheel that's bolted on to the vehicle that's attached to, that has, is carrying a container or a windshield that is part of the driver compartment that is carrying a

[00:22:56] Speaker 00:
container.

[00:22:58] Speaker 00:
So I think those things are exactly on par.

[00:23:01] Speaker 00:
And I totally agree that when you take things logical inclusion and extend an analogy or extend something too far, it's not as helpful in the reasoning.

[00:23:08] Speaker 00:
But I think in here, it's exactly analogous.

[00:23:11] Speaker 04:
Mr. Chairman, let me ask you, if I might please, to switch focus a little bit.

[00:23:19] Speaker 04:
If one accepts the district court's claim construction and one

[00:23:25] Speaker 04:
accepts the ruling of the district court, excluding certain paragraphs from the supplemental declaration of Dr. Ryan.

[00:23:38] Speaker 04:
What we're faced with in terms of the doctrine of equivalence issue is the original report of Dr. Ryan that has a rather conclusory paragraph in it.

[00:23:52] Speaker 04:
and the other material that was in the record at that point.

[00:23:56] Speaker 04:
And of course, you have to view that against our requirement that a patentee must provide particularized testimony and linking arguments in a DOE setting.

[00:24:06] Speaker 04:
Now, the appellant here relies significantly, I think, in its brief on our brilliant instruments case.

[00:24:17] Speaker 04:
And you have in there the declaration of Dr.

[00:24:22] Speaker 04:
I guess it was Dr. West.

[00:24:24] Speaker 04:
Now, that declaration seems to be not much more, I don't know, for want of a better word, I'll use the term effusive in terms of our requirements than the one we have here from Dr. Ryan, yet the report of Dr. Ryan, not a declaration, because that's all we can deal with now.

[00:24:47] Speaker 04:
If, I guess to put it bluntly, if the report

[00:24:51] Speaker 04:
If the declaration of Dr. West in Brilliant Instruments was good enough, why isn't the preliminary or the initial report of Dr. Ryan here not good enough?

[00:25:03] Speaker 04:
I'm sorry to be a little roundabout on that, but do you understand what I'm saying?

[00:25:06] Speaker 00:
I do understand what you're saying.

[00:25:08] Speaker 00:
And I think there's two reasons here.

[00:25:10] Speaker 00:
First, looking specifically at what the issue was being appealed on and discussed in Brilliant Instruments.

[00:25:16] Speaker 00:
The appellate in that case did not contest the sufficiency of the disclosure.

[00:25:21] Speaker 00:
The issue in that case was they said, well, you can't even make a DOE argument on this claim limitation because it would vitiate the claim limitation.

[00:25:32] Speaker 00:
So what the court was really saying there is, no, in this circumstance, you have to look at what the accused equivalent is and make and actually go through the analysis.

[00:25:43] Speaker 00:
So the real issue being appealed was the first part of the discussion was whether we shouldn't even touch DOE because it would be claim initiation.

[00:25:52] Speaker 00:
So that was actually what the case was about.

[00:25:54] Speaker 00:
And then it went through, well, and so you've got to go through the DOE analysis.

[00:25:58] Speaker 00:
And then there was a statement, well, they had a function-way result analysis.

[00:26:03] Speaker 00:
But that wasn't actually what the appellant was appealing.

[00:26:06] Speaker 00:
I think the other reason is, if you actually go and look at the district court record, and we cite it in our brief, is there was actually evidence added as a citation at the end.

[00:26:17] Speaker 00:
And if you look at it, it was some experimental reports.

[00:26:22] Speaker 04:
You're saying the West Declaration, the last sentence, are you referring to the last sentence of the West Declaration?

[00:26:31] Speaker 04:
Yes.

[00:26:33] Speaker 04:
You're correct.

[00:26:33] Speaker 04:
I think in the appendix to the

[00:26:37] Speaker 04:
to that case.

[00:26:40] Speaker 04:
There was a sentence at the end of Dr. West's declaration that says, these properties are demonstrated by the testing results produced at Exhibits 3 through 7 of Appendix G and et cetera.

[00:26:53] Speaker 04:
So what you're saying is that what's quoted in the brilliant case is not the entirety of the West declaration, and the West declaration

[00:27:06] Speaker 04:
in that case, actually had referenced specific test results.

[00:27:13] Speaker 04:
And that sets it apart from what's here?

[00:27:15] Speaker 00:
I think what I'm saying is, first and foremost, what sets the Brilliant Instruments case apart is the issue actually being addressed was a claim initiation issue and not a sufficiency of the disclosure on an insubstantiality of differences.

[00:27:29] Speaker 04:
But it does appear that when you look at the entirety of the West Declaration,

[00:27:37] Speaker 04:
He did specifically refer to certain test results which we don't have.

[00:27:44] Speaker 04:
the equivalent of in Dr. Ryan's original report here.

[00:27:48] Speaker 00:
Correct.

[00:27:48] Speaker 00:
And then to the extent we actually do look at Brilliant Instruments to look at this function way result test.

[00:27:56] Speaker 00:
I think the record on appeal is not as fulsome for us to actually make a determination of sufficiency.

[00:28:03] Speaker 00:
The court there said it was in passing, but not.

[00:28:07] Speaker 04:
What about the various statements, though?

[00:28:09] Speaker 04:
And I think there's, and correct me if I'm wrong, I think there were statements

[00:28:13] Speaker 04:
from the defendant company and various items which talk about how the chaise work.

[00:28:22] Speaker 04:
You're familiar with all those various statements in the appendix.

[00:28:26] Speaker 04:
Yes.

[00:28:27] Speaker 04:
Can't those be used as kind of a supplement to, if you will, buttress or bolster up a bit Dr. Ryan's original report?

[00:28:36] Speaker 00:
Sure.

[00:28:36] Speaker 00:
So I think that the real question is you have to ask what that evidence is relevant to.

[00:28:41] Speaker 00:
And I think the thing that our Federal Circuit precedent says is that you have to put out particularized testimony and leaking argument as to the substantial, insubstantial differences, or the equivalency of.

[00:28:55] Speaker 00:
And what that evidence actually points to is talking about exactly just what the accused feature does.

[00:29:01] Speaker 00:
But there is no evidence about equivalency.

[00:29:03] Speaker 04:
There's no comparison.

[00:29:04] Speaker 00:
There's no comparison.

[00:29:05] Speaker 00:
And actually, that's what you actually find in Mr. Ryan's report also.

[00:29:10] Speaker 00:
Well, he'll talk about, here's in a parenthetical, in a conclusory fashion, here's what I think the function way result is.

[00:29:17] Speaker 00:
But there's no actual evidence or testimony by him or anyone else that is of ordinary skill in the art, and that's what the precedent requires, of saying how that is equivalent to what is done in the claims and what is being claimed.

[00:29:32] Speaker 00:
So that is primarily what is missing.

[00:29:34] Speaker 00:
It is just a conclusion and there is a case that we didn't cite in our brief that is Pretty analogous to this situation.

[00:29:43] Speaker 00:
It's Malta versus Schumer at carillon's 952 f second 1320 that's 952 fed second 1320

[00:29:55] Speaker 00:
And there, it was a jury trial where the expert actually talked about and testified in some detail as to what it says the function, way, result of the accused equivalent is.

[00:30:09] Speaker 00:
But that's where the testimony stopped.

[00:30:12] Speaker 00:
So what the Federal Circuit said, what this court said was, well, certainly there was testimony as to function, way, result.

[00:30:19] Speaker 00:
But what was lacking

[00:30:21] Speaker 00:
is why the overall function weight result that was identified, why that is substantially the same as what was claimed in the patent, and why the particular features and the particular things that were identified is the same to one of ordinary skill in the art.

[00:30:39] Speaker 00:
And that's what we have missing here as well.

[00:30:42] Speaker 02:
Any more questions?

[00:30:45] Speaker 02:
Thank you, Ms.

[00:30:45] Speaker 02:
Chen.

[00:30:51] Speaker 01:
Thank you.

[00:30:53] Speaker 01:
A couple things.

[00:30:54] Speaker 01:
We're hearing now that a fix or fasten, which was the district court's claim construction, does allow some indirect attachment, but just not this kind of indirect attachment.

[00:31:03] Speaker 01:
That's not what we understood, and that's not how the judge applied it in summary judgment.

[00:31:08] Speaker 01:
As for our claim construction being an abstract association, the district court knew exactly what was going on.

[00:31:16] Speaker 01:
The district court said, at eight in the record,

[00:31:18] Speaker 01:
The plaintiff argues that the scope of the word attached should broadly encompass both direct and indirect attachments.

[00:31:25] Speaker 01:
Proposed claim construction of connect or associate was exactly that.

[00:31:29] Speaker 01:
It all had to be a connection, a physical connection.

[00:31:36] Speaker 01:
With respect to your questions, Judge Toronto, from the summary of the invention, I see you were referring to column 3, 17 or 18 through 20.

[00:31:46] Speaker 01:
Upon request, I would direct your attention respectfully to column three, lines six through 11, and column three, lines 23 through 25.

[00:31:55] Speaker 01:
These are describing the system that has, you know where it ends, therefore you know where it is, you asked your base.

[00:32:02] Speaker 01:
Yes, there is a reference that it could also be, you can ping them whenever you want.

[00:32:06] Speaker 01:
But these are two different approaches that are both within the invention.

[00:32:12] Speaker 01:
With respect to length of time, we don't see that length of time is part of anything in the spec or the claims.

[00:32:26] Speaker 01:
It has to do with can you track these?

[00:32:27] Speaker 01:
Do you know where they are?

[00:32:29] Speaker 01:
And you can do that by knowing where you put them.

[00:32:33] Speaker 01:
There was perhaps some comment from the bench, some skepticism as to how this works.

[00:32:38] Speaker 01:
I would point out that at page 43,

[00:32:42] Speaker 01:
of our opening brief, we quote the now folks, the VIP folks, when describing their product.

[00:32:53] Speaker 01:
By directly tracking container handling and equipment activity, we extrapolate the container and chance the location.

[00:33:01] Speaker 01:
Containers can only be moved by CHE or UTR, so tracking them with the GPS is how we know where they are.

[00:33:08] Speaker 01:
I agree that if you are relying on

[00:33:11] Speaker 01:
A year and a half ago, this container was in that corner.

[00:33:15] Speaker 01:
Yes, it does seem distressed.

[00:33:17] Speaker 01:
A strange way to do it, but it is the way of the invention.

[00:33:19] Speaker 01:
It's the way, frankly, that the defendants are doing it.

[00:33:23] Speaker 02:
Any further questions?

[00:33:24] Speaker 02:
Any more questions yesterday?

[00:33:26] Speaker 02:
Thank you.

[00:33:27] Speaker 02:
Thank you, Mr. Matt.

[00:33:28] Speaker 01:
Ms.

[00:33:28] Speaker 02:
Chang, the case is taken under submission.