[00:00:00] Speaker 03: Greenland versus Harbor Freight 15-1761. [00:00:50] Speaker 03: Councillor Bright, you've reserved five minutes of your time for rebuttal. [00:00:53] Speaker 03: Is that correct? [00:00:54] Speaker 04: Yes, Your Honor. [00:00:55] Speaker 03: Okay, you may proceed. [00:00:56] Speaker 04: So good morning, and may it please the Court. [00:00:59] Speaker 04: I represent the plaintiff and appellant on this matter. [00:01:03] Speaker 04: This is a patent infringement case. [00:01:05] Speaker 04: We filed a case in Los Angeles, asked for a jury on all fact questions. [00:01:13] Speaker 04: One of those fact questions, of course, is the second half of an infringement analysis. [00:01:18] Speaker 04: The first half, of course, is the claim interpretation. [00:01:20] Speaker 04: The second half is the application of the claim properly construed to the accused product. [00:01:25] Speaker 04: That's a fact inquiry. [00:01:29] Speaker 04: In this case, my opponents filed a motion for summary judgment of non-infringement and invalidity. [00:01:34] Speaker 04: At the time of that motion, the court below hadn't done the claim interpretation exercise. [00:01:40] Speaker 04: So it was a little bit of a black hole for us. [00:01:43] Speaker 04: Nonetheless, we opposed putting in our proposed definition [00:01:48] Speaker 04: of the term which turned out to be the fulcrum of the case, which is carriage assembly. [00:01:53] Speaker 04: And that's all in our brief. [00:01:54] Speaker 04: I don't want to repeat our brief particularly. [00:01:59] Speaker 04: But I want to point out that my opponent, in his moving papers, primarily was arguing that the claim had to be construed narrowly because of prosecution history estoppel. [00:02:10] Speaker 04: And he had a long argument about why that estoppel applied. [00:02:14] Speaker 04: The judge took all of that stuff into account and issued his ruling. [00:02:18] Speaker 04: in which he defined carriage assembly. [00:02:21] Speaker 04: Now, he didn't go with our definition, and he didn't go with my opponent's definition either. [00:02:25] Speaker 04: It was closer to mine than the other guys, but pretty close to my definition. [00:02:31] Speaker 04: The point about that is, though, that my declaration in opposition, my inventor's declaration, relied on our own proposed definition. [00:02:39] Speaker 04: So you could say in a way that our papers did not expressly address the definition of the court provided after the fact. [00:02:48] Speaker 04: But nonetheless, the moving papers had only one piece of evidence, the declaration of a man named Sprong. [00:02:57] Speaker 04: Mr. Sprong didn't say in his declaration any particular qualifications to address the issue of infringement. [00:03:04] Speaker 04: He didn't say that he'd ever built, designed, modified, or otherwise fixed any machine, let alone a machine at issue. [00:03:11] Speaker 04: He's just a guy who worked for the company, probably a good guy. [00:03:13] Speaker 04: But he doesn't offer any qualifications to say anything other than what he says, which is that [00:03:19] Speaker 04: Here's a picture of the product attached to my declaration, and it shows the deals. [00:03:23] Speaker 04: That's about all he said. [00:03:25] Speaker 04: What's important here is that he didn't deny, he didn't say that there's some element of the claim missing from our product. [00:03:32] Speaker 04: His declaration doesn't say that. [00:03:33] Speaker 04: So there's no fact put forward on the moving papers that says there's a missing element, meaning there's no evidence on the fact question of whether all elements are present in the accused product. [00:03:46] Speaker 04: So we oppose, I put in the declaration of my inventor, to which was attached images that he made of the accused product. [00:03:53] Speaker 04: He'd acquired a sample of it, took pictures of it, and then he identified in his declaration where each element is to be found. [00:04:01] Speaker 04: I told myself that's a prima facie case of literal infringement. [00:04:06] Speaker 04: And the most the other side could say is, well, I disagree that one of the elements of the claim that the inventor identifies as satisfying such and such can be found here. [00:04:16] Speaker 04: But all that would do is create a fact issue. [00:04:18] Speaker 04: But the point is, at the time I filed my opposition, there wasn't even a conflict over that issue, because the moving papers had no evidence that any element was absent. [00:04:29] Speaker 04: OK, so then the judge, in his order, defines carriage assembly. [00:04:33] Speaker 04: And he says, the accused product has a carriage. [00:04:37] Speaker 04: I find that as a fact. [00:04:39] Speaker 04: Now, he doesn't say, I find that as a fact, because the inventor, Mr. Greenland, says [00:04:45] Speaker 04: a carriage, but it's more than a coincidence that we identify as a carriage the same thing he identified as a carriage. [00:04:53] Speaker 04: Then he goes on to say, but there's no assembly here. [00:04:55] Speaker 04: I find there's no assembly. [00:04:57] Speaker 04: That's a fact finding, contrary to the declaration and the supporting images from my client. [00:05:06] Speaker 04: So what the judge did was set himself up as the jury in this case, because if you look at his ruling, he doesn't cite to Mr. Sprong's declaration or anything. [00:05:15] Speaker 04: This is his seat of the pants determination of a fact question that I wanted submitted to a jury and still do. [00:05:22] Speaker 04: So then my opponents file a reply, which goes back to their argument about prosecution history is stop. [00:05:28] Speaker 04: It includes a supplementary declaration from Mr. Sprong saying, well, if my declaration doesn't say it, it certainly implies that so and so and so and so. [00:05:37] Speaker 04: Something written by only a lawyer can think that up. [00:05:41] Speaker 04: It still doesn't say that there's some element absent, but even if it did, [00:05:45] Speaker 04: All I would do is create a fact question. [00:05:48] Speaker 04: So we're relying here on the Amdocs case decided in this court in 2014. [00:05:54] Speaker 04: It was a similar case. [00:05:57] Speaker 04: The claim interpretation was done. [00:06:00] Speaker 04: The patentee submitted a declaration showing how each element of the claims properly construed by the court was present in the accused system. [00:06:09] Speaker 04: And the trial court said, I don't see any evidence here. [00:06:12] Speaker 04: Just like my judge said, I don't see any evidence here that all elements are present. [00:06:16] Speaker 04: So you're out of court. [00:06:18] Speaker 04: Now we recognize, we're the plaintiff, it's our burden to prove infringement by our proponents. [00:06:22] Speaker 04: And the declaration of inventor meets that requirement. [00:06:28] Speaker 04: Now on the motion for summary judgment, I don't have to win the case. [00:06:31] Speaker 04: All I have to do is show that a reasonable group of jurors could find infringement. [00:06:36] Speaker 04: I think we got to that. [00:06:39] Speaker 04: I think we proved it up because my opponent didn't disprove anything. [00:06:43] Speaker 04: But I think we at least show through the declaration of Mr. Greenwood and the attached images, and goes to the discussion, points to each element, that we have enough that a reasonable jury could find infringement here. [00:06:56] Speaker 04: And that's all I had to do on this motion, was to show that some reasonable group of people could find that each element was present. [00:07:02] Speaker 03: At bottom, your argument is that wheels on the table are a carriage assembly. [00:07:09] Speaker 04: My argument is that the court found, Your Honor, [00:07:12] Speaker 04: The court found that the wheels are the carriage. [00:07:15] Speaker 04: So I'm not arguing that point. [00:07:16] Speaker 04: I'm saying, okay, let's treat that as a law of cage. [00:07:19] Speaker 04: Wheels on the table. [00:07:20] Speaker 04: Sorry? [00:07:21] Speaker 04: Wheels on the table. [00:07:22] Speaker 04: The wheels that are underneath the table, on the frame, underneath the table. [00:07:26] Speaker 04: He said are the carriage. [00:07:28] Speaker 04: He said what's absent is the assembly. [00:07:31] Speaker 04: And I said in the, I'd say, my inventor says in his declaration. [00:07:35] Speaker 03: But isn't that the very same [00:07:38] Speaker 03: elements that you disavowed in prosecution? [00:07:42] Speaker 04: No, that's the point we made in our papers to the judge. [00:07:45] Speaker 04: Remember, on the moving papers in the motion for summary judgment, the other side, their papers are almost all about prosecution and history of estoppel. [00:07:52] Speaker 04: The judge didn't adopt it because there was no clear disavowal of that construction. [00:07:57] Speaker 04: In order for prosecution and history of estoppel to apply, there has to be a clear give back or give away of that coverage. [00:08:04] Speaker 01: Help me with something. [00:08:04] Speaker 01: Let me come at this a different way, because I have the same question as Judge Raina, but [00:08:09] Speaker 01: If you look at Sigetic, which is one of the prior art references, how, in your view, I see a table with wheels underneath the table and the table moves along the frame. [00:08:29] Speaker 01: How is that different, in your view, from the accused device? [00:08:36] Speaker 04: To be honest with you, from Sigetich's disclosure, it's so sketchy, it's really difficult to tell whether Sigetich is... Sigetich certainly has wheels that roll along. [00:08:45] Speaker 01: Right. [00:08:45] Speaker 01: And your argument is the wheels are the carriage assembly. [00:08:49] Speaker 04: No. [00:08:50] Speaker 04: The wheels are the carriage. [00:08:52] Speaker 04: The assembly is the structure that holds the wheel to the capacity of the argument. [00:08:55] Speaker 01: Well, okay. [00:08:55] Speaker 01: All right. [00:08:56] Speaker 01: But obviously, anytime you have wheels, you have to have structure that attaches the wheels. [00:08:59] Speaker 01: Yes, of course. [00:08:59] Speaker 01: No, that's not true. [00:09:00] Speaker 04: A wheel could sit in a well. [00:09:02] Speaker 04: I've seen lots of devices where wheels are small and no axle at all. [00:09:04] Speaker 01: But in any event, without getting into strange structures, let's just agree, I think we can, that Szigetish clearly has wheels and a wheel assembly that attaches the wheels to the table, right? [00:09:20] Speaker 01: That's pretty cool. [00:09:21] Speaker 04: It does have wheels, yes. [00:09:22] Speaker 01: And the wheels are attached to the table with some kind of assembly, right? [00:09:27] Speaker 01: Yes. [00:09:27] Speaker 01: All right. [00:09:28] Speaker 01: So why is that not exactly what [00:09:32] Speaker 01: the accused device is. [00:09:34] Speaker 04: Because Siggettich doesn't have the other elements called out in our claim. [00:09:38] Speaker 04: So the fact that there's some commonality. [00:09:39] Speaker 04: For one thing, we have this table that extends beyond the frame. [00:09:43] Speaker 04: The way this device would work, my guy used to be a tile installer. [00:09:47] Speaker 04: And he carried these saws around with him to install the tile. [00:09:51] Speaker 04: When you get to a job site, if the table is no bigger than this, let's say 16, 18 inches on the side, you haven't got enough room to cut the tile from the [00:10:02] Speaker 04: cut the tile pieces out of a template. [00:10:03] Speaker 02: Right, but just sticking to the potential prosecution history estoppel argument, or prosecution disclaimer argument, Sigetich, I don't know if I'm pronouncing it right, discloses a table roller mounted on a frame. [00:10:24] Speaker 02: Sigetich does. [00:10:25] Speaker 02: Yeah. [00:10:27] Speaker 02: And then Mr. Greenland, in the response to the office action, said Sigetich [00:10:32] Speaker 02: Such a touch as table roller mounted on a frame lacks a carriage assembly. [00:10:40] Speaker 04: He said, okay. [00:10:41] Speaker 04: If I may, your honor, I can't remember every word of the prosecution history, but we went through all of that in our, in our opening brief. [00:10:49] Speaker 04: I should say in our reply brief, because my opponent didn't oppose by saying there's a fact question as to whether there's an assembly. [00:10:55] Speaker 04: He went back to the prosecution history of Staple. [00:10:58] Speaker 04: The point I tried to make at the get-go was. [00:11:00] Speaker 04: that they made the same argument to the trial court in support of their claim interpretation argument. [00:11:06] Speaker 02: The judge took it into account. [00:11:07] Speaker 02: But right now, we're just trying to follow the logic of what happened in the prosecution history. [00:11:12] Speaker 02: And why isn't it so when the applicant, in response to the Office Act, who said that Sijatec lacks a carriage assembly when Sijatec has this set of wheels [00:11:24] Speaker 02: to mount the table onto the frame, which very much seems like the Q's product system of having a table roller mounted on a frame. [00:11:33] Speaker 02: So, what's, where's the daylight for you? [00:11:39] Speaker 04: The daylight is, if you, I may refer the court to my reply brief beginning at page 11. [00:11:46] Speaker 04: I go through the prosecution history of Staple arguments on pages 11, 12, and 13 of the reply brief. [00:11:53] Speaker 04: I didn't do it in my opening brief because I considered the matter settled by the court's order of claim interpretation, which took into account the prosecution history's double arguments made by my opponent. [00:12:05] Speaker 03: And you're into your rebuttal time, but go ahead and answer the questions, and I will restore some of your time. [00:12:10] Speaker 04: And I said, if you look at the bottom of 11, page 11, last paragraph, we point out that in the patent office, we argued that our claims call for direct mounting on the frame and the priority to do that. [00:12:24] Speaker 04: That was the distinction. [00:12:25] Speaker 04: The fact that there's some commonality is neither here nor there. [00:12:28] Speaker 04: There was still a patentable distinction from our point of view and from the patent novice's point of view. [00:12:34] Speaker 04: But my opponents don't argue that their roller assembly isn't directly mounted. [00:12:38] Speaker 04: Then they would have a prosecution history estoppel argument. [00:12:42] Speaker 04: But not because of the wheels and carriage assembly. [00:12:45] Speaker 04: Because the argument made in the patent novice for patentability was that our product has a directly mounted carriage assembly. [00:12:53] Speaker 04: And the prior art does not. [00:12:54] Speaker 01: Directly mounted on the frame? [00:12:56] Speaker 04: On the frame, yes, sir. [00:12:57] Speaker 04: That's on page 11, and continuing to page 12, where we deal with the prosecution history of stop law argument raised by my opponent on the other patent, which had to do, where there the priority was to harp the road. [00:13:08] Speaker 01: And Sigatich's wheels are not directly mounted on the frame? [00:13:13] Speaker 04: That's right. [00:13:14] Speaker 01: Why are they not directly mounted on the frame, and yours are? [00:13:18] Speaker 04: Because they look very similar. [00:13:19] Speaker 04: That's just the way it's made, that's all. [00:13:21] Speaker 01: Well, but how are they differently made? [00:13:23] Speaker 04: I don't know about how they're made, Your Honor. [00:13:25] Speaker 01: I don't have any ideas. [00:13:26] Speaker 01: I can only tell you... Let me... I'm not making myself clear. [00:13:31] Speaker 01: As far as I can see, looking at the diagrams in your patent and Sigatitch, it looks like the wheels are mounted on the frame assembly in the same manner, in both. [00:13:41] Speaker 01: And if they're not, explain to me how they differ in the way they are mounted to the frame. [00:13:47] Speaker 04: I can't tell you without going back and rereading the Sigatitch thing. [00:13:51] Speaker 04: Well, I can show you the reference. [00:13:52] Speaker 01: The reference is at JA 384. [00:13:54] Speaker 04: I know that, but I still can't. [00:13:56] Speaker 04: I'd have to sit and think about it for 10 minutes or so without being able to tell you. [00:14:00] Speaker 04: Without looking, I can't tell you. [00:14:02] Speaker 04: All I can tell you is that the prosecution history of stop for argument normally turns on the idea that in the patent office, I entered a limitation to the claim or made an argument or both for a certain element or group of elements in the claim. [00:14:17] Speaker 04: And then I, so there I give back some coverage [00:14:21] Speaker 04: I narrow the scope of my claim. [00:14:22] Speaker 04: That's a prosecution history of Stauffel classically posed. [00:14:27] Speaker 04: And we, in getting the patent allowed, Greenland said, our product is directly mounted, Sigintich isn't. [00:14:34] Speaker 04: The patent author said, I agree. [00:14:37] Speaker 04: Your claim calls out direct mounting, so it articulates the distinction over the prior art. [00:14:44] Speaker 04: Now, if my opponent were to say to you, our product is directly mounted, [00:14:51] Speaker 04: and therefore is within the scope of what you gave up, okay, that's a prosecution history to stop the argument. [00:14:55] Speaker 04: But they don't make that argument. [00:14:57] Speaker 04: That's all I'm saying to you. [00:14:59] Speaker 04: I'd have to go back and look at Sigurd Ditcherunner to tell you all the differences. [00:15:04] Speaker 04: But I didn't want to confuse how the claim was allowed, which is a prosecution history to stop the question. [00:15:10] Speaker 04: What did we argue to get it allowed? [00:15:12] Speaker 04: This direct mounting issue. [00:15:13] Speaker 04: That's what we argued. [00:15:15] Speaker 04: If they said we, our product, [00:15:19] Speaker 04: has the feature that you've disclaimed. [00:15:22] Speaker 04: OK. [00:15:22] Speaker 04: That's prosecution history estoppel. [00:15:24] Speaker 04: And that gets them out from infringement. [00:15:27] Speaker 04: But the judge didn't buy their argument. [00:15:29] Speaker 04: If you look at his order, he doesn't adopt their prosecution history estoppel arguments. [00:15:34] Speaker 03: OK. [00:15:34] Speaker 03: I think we got it. [00:15:35] Speaker 03: Let's hear from Mr. Rosenberg. [00:15:37] Speaker 04: Remember, I have the evidence. [00:15:39] Speaker 04: I have the declaration. [00:15:40] Speaker 04: They have nothing in the way of evidence. [00:15:41] Speaker 04: Just a lawyer argument about prosecution history estoppel, which the court rejected. [00:15:48] Speaker 00: Good morning. [00:15:49] Speaker 00: Please, the court. [00:15:51] Speaker 00: Before I address my main argument, I'd just like to turn to something that my opponent was briefly discussing, or actually more than briefly discussing in length. [00:15:58] Speaker 00: It's the appellant's distinguishing acigatech. [00:16:02] Speaker 00: Most of my opponent's entire argument was focused on the wrong patent that was cited in the prosecution history. [00:16:11] Speaker 00: My opponent's argument was directed to the appellant's distinguishing of hair curled in connection with the prosecution of the 041 patent. [00:16:18] Speaker 00: That distinguishing had to do with the direct mounting. [00:16:22] Speaker 00: The distinguishing of Sigetic in the prosecution of the 990 patent had nothing to do with the direct mounting. [00:16:30] Speaker 00: In Sigetic, the examiner specifically found that the... This is in the second prosecution. [00:16:42] Speaker 01: Correct. [00:16:43] Speaker 01: The request for reconsideration, for example, at 394. [00:16:47] Speaker 01: Yes. [00:16:48] Speaker 01: In 395. [00:16:49] Speaker 00: There was two patents, the 04-1, and Hair Club was cited in connection with the prosecution of that patent, and the 990, and SIGATIC was cited in connection with that. [00:16:59] Speaker 00: SIGATIC, as the court has already stated, showed a table with wheels that rolls on a rail, and the wheels are attached to the underside of the table, just like the accused product. [00:17:10] Speaker 00: The examiner stated that the application for the 990 patent [00:17:14] Speaker 00: I'm sorry, that Sigatec discloses a saw with a frame. [00:17:19] Speaker 00: The saw includes a roller-mounted carriage assembly. [00:17:22] Speaker 00: And in response to that, the appellant, the applicant, stated that what Sigatec discloses is a table rollingly supported on rail members by means of four steel rollers. [00:17:32] Speaker 00: But the applicant's invention has an additional element, the carriage assembly. [00:17:40] Speaker 00: In other words, the appellant distinct... [00:17:44] Speaker 00: That is page 394 of the record, where it's referring to the patent and more specifically, it's probably midway down. [00:18:00] Speaker 00: And then the last sentence of that page, in contradistinction, the rejected claims 1 through 12, each call for an element not found in the cited reference. [00:18:07] Speaker 00: And on the next page, 395, repeatedly in the first two paragraphs, [00:18:11] Speaker 00: The appellant states what is called for in the invention is a carriage assembly. [00:18:18] Speaker 00: So a table with rollers that rolls on rails is not a carriage assembly. [00:18:22] Speaker 00: That is something entirely different. [00:18:25] Speaker 00: And again, the direct mounting has nothing to do with the distinguishing of Sigatec for the invention called in the 990 patent. [00:18:32] Speaker 00: The district court's claim construction was entirely proper. [00:18:37] Speaker 00: It is fully supported by the specifications of the 041 [00:18:40] Speaker 00: 990 patents as well as the prosecution history of those patents. [00:18:45] Speaker 00: Both specifications describe a carriage assembly that is a separately movable structure made of manufactured parts that moves on the frame and supports some other movable object, namely the table. [00:18:57] Speaker 00: In other words, the assertive patents both describe a portable saw with two movable structures, the carriage assembly which moves relative to the frame and the table which moves relative to the carriage assembly. [00:19:09] Speaker 00: The district court provided support in the intrinsic evidence for its construction, specifically citing to the sighted carriage assembly depicted in figure six of the 041 patent, which shows an assembly consisting of at least two parts attached to the frame and mounted under the table. [00:19:24] Speaker 00: And the court's construction comports with the fact that both patents, again, show two separate moving parts. [00:19:32] Speaker 00: The carriage assembly, which moves relative to the frame, [00:19:35] Speaker 00: and the table moves relative to the carriage assembly. [00:19:37] Speaker 01: It struck me, and you correct me if I'm misreading this, but it struck me that most of the claims do seem to contemplate two different moving assemblies, the carriage assembly and the table. [00:19:50] Speaker 01: Both move. [00:19:51] Speaker 01: But I thought that claim nine of the 990 seems not to contain the requirement that the table move. [00:20:02] Speaker 01: It does require that the free roller supported carriage assembly [00:20:06] Speaker 01: presumably free roller supported means that it's rolling. [00:20:11] Speaker 01: That suggests movement, but the table doesn't seem to be required to move. [00:20:17] Speaker 01: Am I not reading that accurately? [00:20:23] Speaker 01: Claim nine. [00:20:24] Speaker 01: I'm looking at it, Your Honor. [00:20:39] Speaker 01: I mean, if the carriage assembly is attached to the table and the table doesn't move vis-a-vis the carriage assembly, then the table can be moved to different places, but only by moving the carriage assembly. [00:20:52] Speaker 01: That was my reading of the claim. [00:20:54] Speaker 01: Is that an incorrect reading? [00:20:56] Speaker 00: I believe it is, Your Honor. [00:20:57] Speaker 00: It's a free roller supported carriage assembly, and the carriage assembly is also roller mounted. [00:21:01] Speaker 00: So it's two sets of rollers. [00:21:04] Speaker 01: Where do you get the second set of rollers? [00:21:05] Speaker 01: If you say free roller [00:21:07] Speaker 01: supported carriage assembly. [00:21:09] Speaker 01: That's one set of rollers. [00:21:10] Speaker 01: Where's the second set of rollers? [00:21:17] Speaker 00: You're right. [00:21:18] Speaker 00: You're right, Your Honor, in terms of that. [00:21:19] Speaker 00: But it goes back then to the claim construction. [00:21:21] Speaker 00: What is a carriage assembly? [00:21:23] Speaker 00: And the carriage assembly, and it goes back. [00:21:25] Speaker 01: Well, we know the carriage assembly has to roll. [00:21:26] Speaker 01: But my question is, doesn't this claim entail, or at least contemplate, [00:21:32] Speaker 01: a table that may not move vis-a-vis this carriage assembly, it's just attached to the carriage assembly. [00:21:37] Speaker 00: Now maybe that reads on the prior art, but... I believe it does read on the prior art. [00:21:41] Speaker 00: But is that what the claim is properly construed to mean? [00:21:46] Speaker 00: It can't be construed to mean that. [00:21:48] Speaker 00: A claim has to be construed to be valid. [00:21:52] Speaker 00: That way with just the wheels moving on a rail, that's sigatic. [00:21:57] Speaker 00: And that's why it goes back to [00:21:59] Speaker 01: There has to be something more than just the wheels under the table, because... Although Sigatec does not involve, as Mr. Bright said, the table extending beyond the frame. [00:22:09] Speaker 00: That's correct, but in distinguishing Sigatec, that's not what... I understand. [00:22:14] Speaker 00: That's not what the appellant focused on. [00:22:16] Speaker 01: I understand, but the argument that the claim can't mean what it seems to mean because it would be invalidated by Sigatec fails if, in fact, the claim involves pushing the table [00:22:28] Speaker 01: beyond the frame. [00:22:29] Speaker 00: Correct, but throughout the specification of this patent, it specifically shows that there's two different moving parts that move relative to each other. [00:22:37] Speaker 00: Okay. [00:22:37] Speaker 02: I guess another question is, could carriage assembly and claim nine be defined differently than carriage assembly and claim 11 or claim 12? [00:22:46] Speaker 00: I don't believe so. [00:22:48] Speaker 00: First, it goes back to SIGATIC, and you have to take that into account. [00:22:51] Speaker 00: And the plaintiff has never, the appellant has never claimed that. [00:22:55] Speaker 00: And there's no support anywhere that's in these [00:22:58] Speaker 00: in the specification of prosecution history that there's a different meaning in terms of this claim. [00:23:06] Speaker 00: So it's our position that the district court properly construed the patent, both patents, to include that both parts need to be moving separately, both the table and the carriage assembly. [00:23:23] Speaker 00: in terms of the infringement aspect of this, is that nowhere in any patent does any embodiment, in either patent, does any embodiment show that the wheels are the carriage assembly. [00:23:35] Speaker 00: There's not a single embodiment, there's not a single description, there's not a single figure which shows that the wheels can be the carriage assembly. [00:23:43] Speaker 00: In particular, the 041 patent provides absolutely no support. [00:23:47] Speaker 03: Does the court rule, though, that carriage assembly included wheels? [00:23:52] Speaker 03: It did not exclude wheels. [00:23:55] Speaker 00: But it can't be just wheels. [00:23:57] Speaker 00: And in fact, the 04-1 patent provides no support for the carriage assembly being just the wheels. [00:24:02] Speaker 01: Well, when you say just the wheels, just so we're clear here, because there's been a dispute about what the wheels means, you're saying wheels and associated hardware to attach the wheels to whatever they're attached to. [00:24:14] Speaker 01: Correct. [00:24:14] Speaker 01: OK. [00:24:15] Speaker 01: So when we use the term wheels, that's what we mean? [00:24:17] Speaker 00: Yes. [00:24:17] Speaker 00: OK. [00:24:18] Speaker 00: First of all, that's again shown in Sigatec, number one. [00:24:21] Speaker 00: Number two, the word wheels or rollers does not even appear in the 041 patent. [00:24:28] Speaker 00: And those words don't appear, it's not shown in any figure. [00:24:32] Speaker 00: So there's just absolutely no support in the 041 patent for the carriage assembly to be the wheels and associated components. [00:24:40] Speaker 00: And the claim construction being proposed has to be used in both patents here. [00:24:46] Speaker 00: There's no argument from the appellant that [00:24:49] Speaker 00: In one patent, it's construed one way, and in the other patent, it's construed another. [00:24:55] Speaker 00: But it doesn't work for the, it cannot work for the 041 patent. [00:24:58] Speaker 00: So it has to be more than just the wheels and the associated parts. [00:25:02] Speaker 02: And then the claims actually talk about how the carriage assembly is roller mounted to the frame and the table is roller mounted to the carriage assembly. [00:25:11] Speaker 02: Roller mounted seems to suggest wheels, so it seems odd [00:25:17] Speaker 02: to say that the wheels themselves can be the carriage assembly when the wheels appear to be the defining the mounting relationship between [00:25:28] Speaker 02: things like tables and carriage assemblies, carriage assemblies and frames. [00:25:31] Speaker 00: I agree, Your Honor, that that's the 990 patent. [00:25:33] Speaker 00: In the 041, it's just the sliding rails. [00:25:36] Speaker 01: It's on rails, right. [00:25:38] Speaker 01: The 041 counterplates the sliding on rails, essentially. [00:25:40] Speaker 00: And so the carriage slides on rails and the table then telescopes beyond the frame using a telescoping assembly. [00:25:48] Speaker 00: Right. [00:25:49] Speaker 00: Going back to Judge Chen's comment that the wheels can't be the carriage assembly because [00:25:55] Speaker 00: because otherwise you'd have a roller mounted carriage assembly with a table roller mounted on top of that. [00:26:01] Speaker 00: So there's two sets of wheels. [00:26:03] Speaker 00: So what's left here is wheels on wheels, which can't be. [00:26:07] Speaker 00: It just won't work. [00:26:11] Speaker 00: So the district court's claim construction is correct. [00:26:15] Speaker 00: The plaintiff's or the appellant's proposed construction just finds no support in the record. [00:26:21] Speaker 00: And the district court's [00:26:24] Speaker 00: claim construction is therefore entirely proper. [00:26:27] Speaker 00: With respect to non-imprisonment, what Mr. Sprong pointed out in both of his declarations that there's nothing that comes between the table and the rails other than the wheels. [00:26:40] Speaker 00: And for the reasons I've discussed, wheels cannot be the carriage assembly. [00:26:45] Speaker 00: And the court found the exact same thing, that the wheels by themselves, or the [00:26:50] Speaker 00: including the components that make up the wheels and attach to the underside of the frame are not and cannot be the carriage assembly. [00:27:00] Speaker 00: So, simply put, the district court's non-infringement decision was entirely correct. [00:27:07] Speaker 00: Now, the appellant's central argument is that somehow the district court ignored the appellant's declaration. [00:27:12] Speaker 00: There's nothing in the record to suggest that this occurred. [00:27:15] Speaker 00: The district court used its construction of carriage assembly and properly found that the appellant's declaration [00:27:21] Speaker 00: which is based on the appellant's incorrect claim construction did not create an issue of material fact. [00:27:29] Speaker 00: Nowhere in the records does the judge say, I am not reading or not paying attention to the appellant's declaration. [00:27:36] Speaker 00: The appellant's declaration, as the appellant admits throughout its appeal papers, for example at pages 4 and 10 on the opening brief and 2 and 3 on its reply brief, is entirely based on its incorrect [00:27:51] Speaker 00: claim construction. [00:27:54] Speaker 00: Plaintiff's opinion, again, plaintiff is a lay witness and this is self-serving testimony, his non-infringement opinion is admittedly based on a proposed construction that is wrong. [00:28:05] Speaker 00: Because the construction is incorrect, the non-infringement opinion based on that construction is necessarily incorrect. [00:28:13] Speaker 00: Accordingly, the district court didn't credit the appellant's declaration was not erroneous because [00:28:20] Speaker 00: The declaration itself was erroneous. [00:28:23] Speaker 00: It's just self-serving testimony. [00:28:25] Speaker 02: I guess the declaration pointed to the wheels and the axles, right? [00:28:28] Speaker 00: Right. [00:28:29] Speaker 02: So in a sense, he was referring to more than one part, and the parts being fitted together. [00:28:36] Speaker 00: But wheels and axles are inherent. [00:28:39] Speaker 00: And the fact that it's attached to the bottom, that's shown in Sigatic. [00:28:45] Speaker 00: All of this is shown in Sigatic, which goes back to what Appellan is trying to capture. [00:28:50] Speaker 00: is what it disclaimed in the prosecution of the 990 patent, that the wheels under the table and that ride on rails cannot be a carriage assembly. [00:28:58] Speaker 00: That is something different. [00:29:01] Speaker 00: And for these reasons, the court's claim construction and infringement determination were not erroneous. [00:29:06] Speaker 00: And therefore, the judgment of the district court should therefore be affirmed. [00:29:10] Speaker 00: Thank you. [00:29:10] Speaker 00: Thank you, Your Honor. [00:29:13] Speaker 03: Mr. Bray, you have two minutes. [00:29:14] Speaker 04: Thank you. [00:29:16] Speaker 04: First of all, [00:29:17] Speaker 04: The opposing counsel said that the judge credited Mr. Greenland's declaration. [00:29:22] Speaker 04: I quote from JA 6, which is page 4 of the judge's order right at the bottom. [00:29:27] Speaker 04: It says, plaintiff has not offered any evidence indicating otherwise, meaning that indicating that my analysis of assembly is wrong. [00:29:37] Speaker 04: No evidence. [00:29:38] Speaker 04: That's a gross overstatement because we turned in the Greenland declaration. [00:29:44] Speaker 04: And I would refer your honors to [00:29:47] Speaker 04: Reply brief where we re-quote at pages 3 and 4 the paragraphs of the Greenland Declaration where he points out every single second point. [00:29:56] Speaker 04: Judge Bryson had asked me in the opening and I didn't have the answer, but I do now. [00:30:00] Speaker 04: I mentioned pages 11, 12, and 13 where I go through there my opponent's prosecution history estoppel argument. [00:30:08] Speaker 04: Beginning at the bottom of page 12, the last paragraph continuing to page 13 of my reply brief, Your Honor, [00:30:14] Speaker 04: This is a discussion of the Sigetich distinction made in the patent office. [00:30:20] Speaker 04: The distinction made was that Sigetich's carriage assembly 57, that's the number in the drawing of this Sigetich patent, is on the upper edges of the vertically extended flanges of the rail members and therefore isn't directly mounted on the frame. [00:30:36] Speaker 04: That's the argument that was successful in getting the patent allowed. [00:30:40] Speaker 04: It had nothing to do with disclaiming [00:30:43] Speaker 04: anything about carriage assembly. [00:30:45] Speaker 04: Nothing to do with it. [00:30:46] Speaker 04: And that's why the prosecution history of Staple doesn't help my opponent, and it's also why the trial court didn't give him any credit for it. [00:30:53] Speaker 04: It doesn't go anywhere. [00:30:54] Speaker 01: The wheels in Sigatich, then you say, are attached to the rail, not to the frame? [00:30:59] Speaker 04: It's on page 13, Your Honor, right at the top of my reply briefing. [00:31:05] Speaker 04: Patentee argued only that Sigatich's carriage assembly 57 is on the upper edges of the vertically extended flanges, [00:31:12] Speaker 04: of rail members so-and-so, and therefore isn't directly mounted on the frame, which is what the claim explicitly calls for. [00:31:18] Speaker 04: Now, my opponent doesn't say ours isn't directly mounted. [00:31:21] Speaker 04: They can see theirs is directly mounted. [00:31:24] Speaker 04: So the prosecution history is stoppable. [00:31:26] Speaker 04: Based on Sigetich doesn't help them one bit. [00:31:29] Speaker 01: My last point I want to make... Are you saying the rails in Sigetich are not part of the frame? [00:31:34] Speaker 04: I'm not saying that at all, I'm saying what, I'm just quoting what the argument made by the patent officer. [00:31:39] Speaker 01: Well I know you're quoting it, but I'm just trying to see if that makes any sense. [00:31:41] Speaker 04: I'm saying that it is directly mounted because to be directly mounted it couldn't be on the top of the rail, that's all. [00:31:46] Speaker 04: It's like saying if my hand touches the edge of this table, it's not directly mounted on the table, that's all. [00:31:55] Speaker 04: Now maybe you don't like that argument today, maybe you think if I was the patent examiner I might have come to a different conclusion. [00:32:01] Speaker 04: But the point is that prosecution history is based on the written record [00:32:05] Speaker 04: not what we imagine it might be, or could have been, or should have been. [00:32:07] Speaker 02: What about the statement at A394 to 395, where the applicant is trying to convince the examiner that Sigitec doesn't anticipate the claims, and the applicant keeps reciting claim language that repeatedly is talking about a carriage assembly. [00:32:29] Speaker 02: And none of that claim language, at least, seems to be talking about directly mounting [00:32:36] Speaker 02: the carriage assembly to something. [00:32:39] Speaker 02: I don't think I understand your question. [00:32:41] Speaker 02: Oh, A394, 395. [00:32:42] Speaker 02: You don't have your appendix? [00:32:46] Speaker 04: I don't have it before me, Your Honor. [00:32:49] Speaker 04: But all I can tell you is that the part I quoted is from 394 and 395, which is where my patentee's lawyer made the argument that I just quoted. [00:32:59] Speaker 04: That's where he made the argument. [00:33:00] Speaker 04: That's the only argument he made. [00:33:02] Speaker 04: And the patent was accepted. [00:33:03] Speaker 04: Would you like to conclude? [00:33:04] Speaker 04: One last point, Your Honor. [00:33:05] Speaker 04: The question here is extremely narrow. [00:33:09] Speaker 04: Where there's a jury demand and I want a jury to decide the facts, namely, does the claim properly construed cover the product? [00:33:16] Speaker 04: Did I give the trial court a declaration adequate to get to the jury? [00:33:20] Speaker 04: Yes. [00:33:21] Speaker 04: Did my opponent come forward with a declaration denying the presence of any claim element? [00:33:25] Speaker 04: No. [00:33:26] Speaker 04: Under those circumstances, I submit to you it should be reversed and remanded so I can get my day in court. [00:33:31] Speaker 04: I want a jury to decide this, not some judge on declarations. [00:33:34] Speaker 04: Okay, we got it. [00:33:36] Speaker 03: That concludes today's arguments. [00:33:38] Speaker 03: The court stands on recess.