[00:00:20] Speaker 01: The final case for argument this morning is 16-11-31, Moltec versus Pagter and Partners. [00:00:51] Speaker 03: Mr. Arnold. [00:00:54] Speaker 03: May it please the court. [00:00:57] Speaker 03: Your honors, the district court here erred when it construed the term a rectangular crate having sloping side walls to mean, specifically with claim two, which is the only claim asserted in this case, specifically to mean that all four walls must slope. [00:01:17] Speaker 03: The plain meaning, I don't think there's much dispute that when you say that something has sloping side walls, that's a plural term, it means at least two, and cases have supported that, and I don't think there's too much dispute about that. [00:01:30] Speaker 03: What the district court did to find that, to come to that conclusion, was to read in an object, one of the objects of the invention, but that's the key. [00:01:42] Speaker 03: It was one of them, and there are several. [00:01:45] Speaker 03: There are three that are very important here. [00:01:47] Speaker 03: And only one was focused on. [00:01:49] Speaker 03: And the one that the court focused on, the court actually said the issue is nesting without binding. [00:01:59] Speaker 03: So if I may, and stop me if you don't want me to do this, but these are buckets, essentially buckets that transport flowers. [00:02:07] Speaker 03: And the invention has several features. [00:02:10] Speaker 03: The first column of the patent talks about those features. [00:02:14] Speaker 03: It mentions that there are sloping sidewalls. [00:02:17] Speaker 03: in a rectangular bucket, if you can picture that, there is a channel that goes around the bucket that has an upwardly facing channel and a downwardly facing part of it that goes around it, like a rim. [00:02:29] Speaker 03: And then inside the crate, if you will, there is a shoulder, and that shoulder is also part of it. [00:02:35] Speaker 01: Okay, I'm going to stop you. [00:02:36] Speaker 01: Okay. [00:02:37] Speaker 01: All right. [00:02:37] Speaker 01: Just to the heart of where I thought you were going, why is it not clear in the specification [00:02:44] Speaker 01: that the aim of the invention is to prevent binding. [00:02:48] Speaker 01: It talks a great deal about this in, I guess it's column 1, 21 through 29. [00:02:54] Speaker 01: I mean, that's obviously the heart of the invention. [00:02:58] Speaker 01: is I think what Judge Kendall was going at where she said this is about nesting and be able to do nesting and you need force-loving walls for nesting, end of story, right? [00:03:08] Speaker 01: Yes, Your Honor. [00:03:09] Speaker 01: So what is it you think in this specification diminishes the reliance on the non-binding nesting aim of this invention? [00:03:19] Speaker 03: Well, in fact, Your Honor, it's the three objectives that I was talking about that in fact diminish that because [00:03:27] Speaker 03: The law is clear that you can't just read all of the objectives in. [00:03:31] Speaker 03: And this talks about three of them. [00:03:33] Speaker 03: And yes, it starts out with the objective, and it says the word the aim. [00:03:37] Speaker 03: But if you go to the very beginning of that paragraph in column one, that's at A81, it says, if the empty crates are nested deeply into one another. [00:03:48] Speaker 01: Let's make sure. [00:03:50] Speaker 01: Which patent are you on? [00:03:52] Speaker 03: It's page A81 is the one I'm looking at. [00:03:55] Speaker 03: But it's column one of the 330 patent. [00:03:59] Speaker 03: Okay, that's what I... Column 1 and line 21. [00:04:03] Speaker 03: Okay. [00:04:05] Speaker 03: And actually, if I could, for efficiency, just the very beginning of the patent, column 1, the title doesn't say anything about nestability. [00:04:15] Speaker 03: It says packaging for cut flowers. [00:04:17] Speaker 03: Right under the title, it says the invention relates to a packaging for cut flowers comprising a rectangular crate with sloping sidewalls, [00:04:27] Speaker 03: has a base, has a foldable rectangular protective tube, says nothing about whether there's any nestability. [00:04:33] Speaker 03: It is true, or this is the only time that the word invention is used in the spec, in the very beginning. [00:04:40] Speaker 03: Now in this column one, it goes on to describe various features. [00:04:44] Speaker 03: One is nestability, and nestability actually without binding. [00:04:49] Speaker 03: So what that means is they can nest, but there'd be no binding. [00:04:52] Speaker 03: And it does, in fact, say that that is the aim. [00:04:55] Speaker 03: But prior to it saying the aim, on line 21 it says, if the empty crates are nested deeply. [00:05:02] Speaker 03: So it's proposing, it's saying this may happen. [00:05:05] Speaker 03: If this happens, the aim is so to improve the packaging. [00:05:10] Speaker 03: Then if you go down to line 30, it says to this end, the packaging in the parambles is characterized and that a shoulder extends between the top and it goes on and gives what the structure of the shoulder is. [00:05:20] Speaker 03: I don't dispute that one aim of the shoulder, part of the limitation here, was in fact to allow some nesting without binding. [00:05:34] Speaker 03: But there are other objectives. [00:05:37] Speaker 03: And the important thing is that Judge, the district court. [00:05:42] Speaker 01: Well, why don't you point me to the other objectives? [00:05:45] Speaker 03: Sure. [00:05:45] Speaker 03: The second objective is right there. [00:05:49] Speaker 03: Line 35, it says, the said shoulder can serve as a support for a rectangular presentation column. [00:05:56] Speaker 03: And it says, quote, this is important in particular in the case of somewhat longer cut flowers. [00:06:03] Speaker 03: So here's another example where they're saying, here's something that may come up, and our shoulder can serve this function. [00:06:09] Speaker 03: That is a separate and independent function. [00:06:11] Speaker 03: It has nothing to do with nestability. [00:06:13] Speaker 03: whether the shoulder can support a collar inside it. [00:06:17] Speaker 01: Why does that diminish, though, that there's also got to be nestability? [00:06:23] Speaker 01: This is something else it should do, but why does that diminish or say it's not in lieu of the nestability stuff, right? [00:06:30] Speaker 03: Well, because, Your Honor, because here's the thing. [00:06:33] Speaker 03: If you look at the independent claims, you will see, and this is also true in the prosecution history, even though prosecution history was never presented, it was discussed in the briefs, [00:06:42] Speaker 03: But they're all consistent. [00:06:44] Speaker 03: Independent claim one, if you look at one, two, and 14, each one of them features one of these three objectives, but not the other two. [00:06:56] Speaker 03: So it makes sense inherent within the patent that that's what the patentee was doing. [00:07:01] Speaker 03: The patentee was saying, I'm going to have one claim. [00:07:04] Speaker 03: So claim one in column three. [00:07:08] Speaker 03: mentions at element C, it says, the shoulder is capable of supporting a presentation collar. [00:07:15] Speaker 03: That's column four, lines six through seven. [00:07:22] Speaker 03: It says, wherein the shoulder is capable of supporting a rectangular presentation collar. [00:07:26] Speaker 03: What's important is the column claim one. [00:07:29] Speaker 03: Claim one doesn't have the nest ability without binding feature, doesn't say that at all. [00:07:34] Speaker 03: And it also doesn't have the third feature, which I also wanted to mention, which was back in column one. [00:07:39] Speaker 03: And the third feature that's described as an object is that there is a downward-facing portion of the collar that I mentioned. [00:07:50] Speaker 03: Not the collar, but the collar. [00:07:52] Speaker 01: OK. [00:07:52] Speaker 01: I understand what you're saying, I think. [00:07:54] Speaker 01: The difficulty I'm having at comprehending it is because in all of these claims, they refer to sloping walls. [00:08:01] Speaker 01: And that's what we're construing here. [00:08:04] Speaker 01: So I don't think you're saying that there's two constructions of sloping walls. [00:08:10] Speaker 01: With the nesting claim, sloping walls should be construed to have four sides. [00:08:16] Speaker 01: And then the other claim, sloping walls should only be construed as having less than four. [00:08:20] Speaker 01: Well, that is what we're saying. [00:08:22] Speaker 03: And we're saying this. [00:08:23] Speaker 00: So I think sloping walls means different things in claims one and two? [00:08:27] Speaker 03: We're saying that that's what the patentee contemplated, yes. [00:08:30] Speaker 03: Because in 14, it's the only time it uses the nesting language, the only time at all. [00:08:36] Speaker 03: And we believe it's a perfect example of claim. [00:08:39] Speaker 01: Do you know of any case where we've construed a term to mean one thing in one claim and another thing in another claim? [00:08:49] Speaker 03: I looked for a case like that, Your Honor. [00:08:51] Speaker 03: I couldn't find one either way. [00:08:52] Speaker 03: So I don't. [00:08:54] Speaker 03: But I believe it would be consistent. [00:08:55] Speaker 00: Well, when you say either way, [00:08:57] Speaker 00: We've certainly said many times that when a word is used in one way, in one part of the patent claim or otherwise, it is assumed to mean the same thing in other places. [00:09:10] Speaker 03: I acknowledge that, Your Honor, that's not what I meant. [00:09:12] Speaker 03: I just meant that I did look for that. [00:09:14] Speaker 03: I didn't see that. [00:09:15] Speaker 03: But I think it makes sense here because of the construct that was done. [00:09:22] Speaker 03: I mean, it's no question that the law is very clear, that this court has made clear that you don't have to read all of the features into the invention or into the claims. [00:09:34] Speaker 03: And if you look at what was done, the patentee made a point to have independent claims where one focused on one of the objects, one on the other, one on the other. [00:09:47] Speaker 01: And otherwise, I'm sorry. [00:09:50] Speaker 01: Pardon me? [00:09:50] Speaker 01: You asked for a construction that would involve sloped walls for all the claims. [00:09:56] Speaker 01: Did you propose two different constructions? [00:09:58] Speaker 03: Well, only claim two and four were ever asserted. [00:10:02] Speaker 03: So we proposed the same construction for both. [00:10:05] Speaker 03: Four was an independent claim, and it was one that was just dropped by the time appeal came, or by the time summary judgment came, rather. [00:10:14] Speaker 03: So Your Honor, we actually didn't face that issue. [00:10:18] Speaker 03: at the district court, meaning whether there would be different meanings. [00:10:25] Speaker 03: But claim two, the feature is this downward-facing channel that has nothing to do with the shoulder. [00:10:35] Speaker 03: And that was something that was not shown in the prior art. [00:10:40] Speaker 03: That was something that during the prosecution history, the patentee talked about [00:10:48] Speaker 03: the claims only that related, that only that had that feature and not the nesting feature, distinguished the prior on that feature only, on the downward-facing channel feature. [00:10:59] Speaker 03: There was another claim that's relied on by opposing counsel that was claim nine, application claim nine in the prosecution history. [00:11:09] Speaker 03: But application claim nine [00:11:12] Speaker 03: only had the nesting feature and it was amended to include the nesting feature. [00:11:16] Speaker 03: It was ultimately canceled though. [00:11:19] Speaker 03: And it is true that when the patentee was talking about that particular claim, it limited it to that claim only and said with respect to that claim, you know, there's a distinction because ours has some nesting without binding. [00:11:32] Speaker 03: But it was limited only to the claim. [00:11:34] Speaker 03: Then on other claims, the patentee said, well, no, the distinction is we have this downward facing channel. [00:11:41] Speaker 03: That's not shown. [00:11:42] Speaker 03: And then on other claims, the argument was there was a presentation collar, and that was a different feature. [00:11:50] Speaker 03: And so I certainly acknowledge what the court has said about that you could have sloping sidewalls mean one thing in one claim and the other. [00:11:59] Speaker 03: But I believe that that works in this patent. [00:12:02] Speaker 03: I believe that's what was intended. [00:12:03] Speaker 03: And I believe that if you don't do that, it takes away from the plain meaning, because [00:12:08] Speaker 03: the plain meaning of sloping sidewalls is two, and the patentee here, and claim two, which is the only one asserted. [00:12:15] Speaker 01: Well, your plain meaning argument, though, are you suggesting, I mean, I guess Judge Bryson referred to the fact it's kind of schizophrenic. [00:12:21] Speaker 01: You're suggesting we have two different constructions of the terms and in different claims, and when we say we're going to use plain meaning here, the plain meaning is more than one, or more than two, and then we're going to use [00:12:38] Speaker 01: the other meaning and the other claims because we know what the aim of the invention is, at least with respect to certain of the claims? [00:12:44] Speaker 03: Well, I think the plain meaning is always the same in the claims, which is just that it's two or more, but that when you get to claim 14, which is the only claim that mentions nesting, the only one, when you get to that claim, you have to construe it and say, well, since nesting's mentioned, and that's one of several features that's focused on, it would make sense for that claim, 14, to say that it would be [00:13:06] Speaker 03: that it would include four because otherwise you couldn't have nesting. [00:13:10] Speaker 03: And also I would say if you look at claim 14, it could still be construed as at least two and you could still make it consistent because it's just tacked on at the end of the shoulder limitation. [00:13:26] Speaker 03: It says [00:13:29] Speaker 03: It says that the shoulder projects into the interior volume and extends between the top of the sloping walls, and it goes on. [00:13:38] Speaker 03: And it says, to prevent one crate from binding to another similar crate when nested. [00:13:43] Speaker 03: So even if you said if it's two or more, it would still be consistent when you had a crate that binded. [00:13:55] Speaker 03: If you didn't have a crate, [00:13:57] Speaker 03: when you had a crate that could nest. [00:13:58] Speaker 03: If you didn't have a crate that could nest, it would still be a fair reading, I believe. [00:14:05] Speaker 01: Why don't we hear from the other side here? [00:14:07] Speaker 03: Thank you, Eric. [00:14:23] Speaker 02: Good afternoon. [00:14:25] Speaker 02: Patrick McCarthy on behalf of Moltec. [00:14:27] Speaker 02: It seems like we only covered the first claim construction dispute during counsel's argument, and that relates to the rectangular crate having sloping sidewalls. [00:14:37] Speaker 02: Now, counsel led off by saying that he doesn't believe that there's any dispute about the plain meaning of the rectangular crate having sloping sidewalls in the claim language itself. [00:14:51] Speaker 02: Moltec argues and believes that the claim language, the rectangular crate, [00:14:57] Speaker 02: having sloping sidewalls, logic and grammar would dictate that all sidewalls are sloping. [00:15:05] Speaker 02: The applicants claimed a particular type of crate is a rectangular crate. [00:15:10] Speaker 02: Being a rectangular crate, it has four sidewalls. [00:15:13] Speaker 02: And then in the claim language, they said that those sidewalls are sloping. [00:15:20] Speaker 02: And if the court's not convinced that the language standing alone [00:15:25] Speaker 02: does have the plain meaning that all sidewalls must be sloped. [00:15:30] Speaker 02: We can look to the specification to enlighten us. [00:15:36] Speaker 01: Remind me what the district court, I thought the district court did concede that the ordinary meaning might include less than all four, but then went on to review it in the context of the specification, et cetera, right? [00:15:48] Speaker 01: I don't remember at this moment. [00:15:53] Speaker 02: I believe that the court [00:15:55] Speaker 02: found in view of the specification, the plain meaning is that all walls are sloping. [00:16:26] Speaker 02: The important thing is that the plain meaning that aligns most closely with what the inventors were discussing is that all four walls are sloping. [00:16:37] Speaker 02: And interestingly, on counsel's initial argument, he noted that at claim one, and he read this passage, or at column one, line four, he read this passage. [00:16:51] Speaker 02: And he said, this is the only place [00:16:53] Speaker 02: that the applicants described the invention. [00:16:57] Speaker 02: And what he read was a rectangular crate with sloping side walls, which are provided close to their top walls. [00:17:05] Speaker 02: What counsel did not point out is that immediately after that paragraph, the very next sentence points out the type of packaging that was being described in that general scope of the invention. [00:17:18] Speaker 02: And that packaging is described in EP-B [00:17:22] Speaker 02: 0-311-174. [00:17:22] Speaker 02: The EP 174 patent, which Moldtech pointed out in its briefing, is directed to a nesting crate with all of its walls sloping. [00:17:36] Speaker 02: Another key portion of the specification is the only place in the detailed description where the applicants actually used the claim language, a crate having sloping sidewalls. [00:17:51] Speaker 02: And at column 2, line 47, the applicants say the crate has sloping sidewalls such that it is nestable in a similar crate. [00:18:03] Speaker 02: No one has disputed that the only way two crates can nest together is if all the walls are sloping. [00:18:10] Speaker 02: So here, where the applicants actually use the claim language in the specification, they're referring to all walls being sloping. [00:18:19] Speaker 02: And importantly, [00:18:20] Speaker 02: And this is a point that Your Honors made with respect to the distinction between an apparent different claim construction for sloping sidewalls in Claim 14 and sloping sidewalls in Claim 2. [00:18:34] Speaker 02: If you take Patchter's proposed plain meaning of sloping sidewalls and drop it in to that sentence of the specification, the applicants would have been saying the crate [00:18:48] Speaker 02: has at least two sloping sidewalls such that it is nestable in a similar crate. [00:18:55] Speaker 02: That doesn't make any sense. [00:18:57] Speaker 02: The applicants didn't consider a crate having sloping sidewalls to encompass anything other than a crate with all walls sloping. [00:19:08] Speaker 02: The reason it doesn't make any sense is because if a crate only has two sloping sidewalls, it cannot be nested. [00:19:20] Speaker 02: Now, counsel also touched briefly upon the prosecution history and argued that the statements which mold tech relies on as being pertinent to this point from the prosecution history as only being applicable to application claim nine. [00:19:40] Speaker 02: And that's kind of a distraction by counsel because the point is that when the applicants were making reference to and explaining [00:19:50] Speaker 02: what the meaning of claim nine was, the asserted claim here was dependent upon that independent claim at that time. [00:20:01] Speaker 02: And the applicants even stated in the prosecution history, as all of this court's precedent follows, as being a dependent claim, it included all of the limitations of its independent claim, claim nine. [00:20:15] Speaker 02: So all of the statements related to [00:20:18] Speaker 02: dependent or independent claim nine at the time they were made and cited in our brief are applicable to the asserted claim here. [00:20:33] Speaker 02: I think because we only touched upon the first claim construction issue, I would like to just, if I could reserve a couple minutes, if you guys touch upon the second claim construction issue. [00:20:43] Speaker 02: That's not the way we work around here. [00:20:49] Speaker 02: If we wanted to talk briefly about the second claim construction issue. [00:20:59] Speaker 02: The second claim construction issue has to do with the shoulder limitation. [00:21:04] Speaker 02: And the shoulder limitation requires a shoulder extending between the top of the sloping sidewalls of the crate and the channel base or the bottom of the inner flange of the channel. [00:21:19] Speaker 01: This is just an alternative ground that would not be reached if we agreed with the district court on the sloping walls, correct? [00:21:26] Speaker 02: It's my understanding that both issues need to be decided. [00:21:34] Speaker 00: Why does the second issue need to be decided? [00:21:36] Speaker 00: I'm not clear. [00:21:38] Speaker 02: My understanding is that the accused crates have four side walls, and the subject [00:21:47] Speaker 02: of the second claim construction dispute is with respect to the side vent sidewalls. [00:21:55] Speaker 02: So if the first claim construction issue comes out as at least two, the reasoning behind the summary judgment order does not need to apply. [00:22:07] Speaker 02: I don't understand that. [00:22:09] Speaker 00: Yes. [00:22:10] Speaker 00: OK. [00:22:10] Speaker 00: Let me ask the question this way. [00:22:12] Speaker 00: Sure. [00:22:13] Speaker 00: Do the accused boxes [00:22:16] Speaker 00: all have four sloping sidewalls? [00:22:20] Speaker 02: They do. [00:22:21] Speaker 00: So if we say that the claim requires that there be four sloping sidewalls, then, I'm sorry, if you have four sloping sidewalls, then you're not subject to infringement, correct? [00:22:44] Speaker 00: I'm sorry, maybe I got the hilarities wrong. [00:22:48] Speaker 00: You have sloping sidewalls. [00:22:50] Speaker 00: Okay, go ahead with your shoulder argument. [00:22:54] Speaker 00: I see. [00:22:55] Speaker 01: If you have four sloping sidewalls, then why are you advocating for the district court's claim construction that you need four? [00:23:02] Speaker 02: Because the sloping sidewalls limitation comes up twice in the claim. [00:23:08] Speaker 02: The first is just related to the rectangular crate itself. [00:23:12] Speaker 02: The second relates to the shoulder limitation and where the shoulder must exist. [00:23:18] Speaker 02: And the shoulder needs to exist on said sloping sidewalls. [00:23:23] Speaker 02: So with the understanding that all four walls must be sloping, the shoulder must exist on all four sidewalls. [00:23:35] Speaker 02: In the court's summary judgment order... And are they disputing? [00:23:39] Speaker 01: Is the other side dispute that if the claims are construed to require four sloping walls, that there's still infringement because of the shoulder? [00:23:52] Speaker 01: I'm really not following. [00:23:54] Speaker 02: Yes. [00:23:54] Speaker 02: So yes. [00:23:56] Speaker 02: Under the court's claim construction of four sloping sidewalls, they still have advanced an infringement argument. [00:24:07] Speaker 05: You're saying that in the accused product, the shoulder is on how many sidewalls? [00:24:15] Speaker 02: So there are four different accused shoulders in the accused products, subject to the summary judgment order. [00:24:25] Speaker 05: Four shoulders, one on each sidewall? [00:24:27] Speaker 02: Yeah, so there's a dispute about whether or not they're actually on the sidewall because there's recessed walls, but in any event, the [00:24:38] Speaker 02: patent owner has accused, there's two sides of the bucket that has handles. [00:24:47] Speaker 02: There's an accused shoulder on those sides of the bucket. [00:24:54] Speaker 02: On the other adjacent two sides, there is a recessed wall, which the patent owner has also accused of being a shoulder. [00:25:06] Speaker 02: That shoulder [00:25:07] Speaker 02: is in a different location with respect to the channel and served the basis of the court's summary judgment order. [00:25:17] Speaker 05: Is that the ground of the judgment of non-infringement? [00:25:20] Speaker 02: Correct. [00:25:22] Speaker 05: OK, so just to make clear, there is a shoulder on each side wall? [00:25:28] Speaker 02: There's an accused shoulder on each side wall, yes. [00:25:32] Speaker 05: Then I'm trying to understand the distinction from the claim. [00:25:38] Speaker 05: Which also doesn't say a shoulder on each side wall, but doesn't also say that there are not shoulders on each of the four side walls. [00:25:50] Speaker 02: Right. [00:25:50] Speaker 02: So the court's claim construction found that each of the four side walls must have shoulders. [00:25:57] Speaker 05: And you just told us that in the accused product, each of the four side walls is sloping and has a shoulder. [00:26:04] Speaker 02: It has accused shoulder, yes. [00:26:06] Speaker 02: I'm just not admitting that Moldtech has shoulders, because there is a dispute about whether or not they are actually shoulders. [00:26:16] Speaker 02: There are structures that the patent owner has pointed to and accused of being shoulders. [00:26:23] Speaker 00: And the district court said what? [00:26:25] Speaker 02: The district court said, with respect to the two on the vent side, those are not the shoulders of the claim. [00:26:32] Speaker 00: And the reason being? [00:26:34] Speaker 02: Okay, because the claim language is a shoulder extending between the top of the sloping sidewalls and the bottom of the inner flange or the base of the channel. [00:26:50] Speaker 02: So, the court found that that plain meaning requires a shoulder that meets the channel base or the bottom of the inner flange. [00:27:02] Speaker 02: And the court found that the plain meaning of the channel base and bottom of the inner flange was effectively the inside corner of the channel. [00:27:12] Speaker 02: And the accused shoulders in the mold tech products are well below both the bottom of the inner flange and the channel base, and therefore do not meet that claim limitation. [00:27:32] Speaker 05: So you're telling us the judgment was based on whether the shoulder on each of the sloping sidewalls went all the way to the bottom? [00:27:45] Speaker 02: The judgment was based on whether or not the shoulders on each of the sidewall extends to the bottom of the inner flange, which if we look at the inner flange is [00:28:00] Speaker 02: defined in the claim and the specification as effectively the interior wall of the channel. [00:28:10] Speaker 02: And Judge Kendall found, rightly so, that the accused shoulders do not extend to the bottom of the inner flange and they do not extend to the base of the channel, which is the express claim language required for an infringement analysis. [00:28:30] Speaker 00: A-16, and this is in the district court's opinion there, photographs of the accused device. [00:28:39] Speaker 00: Can you explain to us exactly what she found with respect to those photographs? [00:28:46] Speaker 00: Sure. [00:28:55] Speaker 02: You have that page. [00:28:56] Speaker 02: I am, and I was looking for an easier reference point for your honor in relation to those. [00:29:02] Speaker 02: So if you look at on page A16, the bottom right hand picture, that is the top view looking down into a mold tech accused product. [00:29:15] Speaker 02: You see on the bottom right hand side, you can see the outline of what would be a handle to carry that box. [00:29:24] Speaker 02: There are also two recessed vents, one of which being visible in the upper right-hand corner of that picture. [00:29:34] Speaker 02: Patchster has called that recessed vent a shoulder under Claim 2. [00:29:43] Speaker 02: If you look at Figure 6, which is on page A13, [00:29:59] Speaker 02: That is a cut through of that vent showing, you can see the recessed wall. [00:30:07] Speaker 02: Well, along the right hand side there is a flange that defines an upper channel and a lower channel. [00:30:17] Speaker 02: The inner flange of that channel was found to end at what is the base of the channel, which is identified by the line coming out to the right hand side of the [00:30:29] Speaker 02: photograph on the bottom. [00:30:31] Speaker 02: The accused shoulder is well below the bottom of that inner flange and the base of the channel, and therefore the court found no infringement. [00:30:46] Speaker 00: Where is the channel on the group figure two on A-16? [00:30:58] Speaker 00: Is that up at [00:30:59] Speaker 00: the top with the arrow coming out of it? [00:31:02] Speaker 02: And I'm sorry, Your Honor, I don't... When you say group figure... Group figure two on page 816. [00:31:07] Speaker 00: Oh, yes, yes, yes. [00:31:08] Speaker 00: The bottom left-hand side, is that the upwardly facing channel of figure six up there where the arrow is coming out? [00:31:22] Speaker 02: I believe that what you're pointing to, yes. [00:31:36] Speaker 02: Okay. [00:31:37] Speaker 02: I see that I've run out of time. [00:31:39] Speaker ?: Thank you. [00:31:51] Speaker 01: Yes. [00:31:51] Speaker 01: So do you want to start off by giving us a little clarification in terms of the relationship that you're hearing here between some conclusion on the bench, on the sidewalls question, and this other question? [00:32:04] Speaker 03: Yes, I'll do my best, Your Honor. [00:32:06] Speaker 03: Um, with respect to the sec, we, we are at, we are asking that the sloping sidewalls be, for claim two, be at least two slidewalls. [00:32:16] Speaker 03: And because we have asked for that construction and believe that it's correct, um, if you look in claim two... Okay, but let's assume hypothetically, let me just stop. [00:32:25] Speaker 01: Hypothetically, what if we were to agree with the district court's claim construction with regard to four sidewalls? [00:32:32] Speaker 03: Okay. [00:32:33] Speaker 01: Where does that leave the case? [00:32:34] Speaker 01: What other issues remain with respect? [00:32:36] Speaker 03: Oh, OK. [00:32:40] Speaker 03: If you were to agree with that hypothetically, then where that leaves the case is just there's one other issue, but it's a really important issue. [00:32:47] Speaker 03: And that issue is that on A15, A16, when the court gave its basis for non-infringement, and that was tied to the shoulder, [00:33:00] Speaker 03: What the court actually did was a new claim construction analysis, brand new, one that we had never seen, one that we had never prepared for, one that our experts had never seen. [00:33:09] Speaker 03: In fact, the court didn't consider our expert reports that were part of the summary judgment. [00:33:15] Speaker 03: And the court does start out on page A14 and recites that it had originally said that it would just use the plain meaning of the shoulder limitation, not the sloping sidewalls, the shoulder limitation. [00:33:30] Speaker 03: But then if you look at A-15, it refers to the patent figures, it refers to the patent specification, and it very clearly in the middle of the page of A-15 says, the accused shoulder is not arranged on the inside of the channel. [00:33:47] Speaker 03: Now that is a direct quote from the specification from part of the preferred embodiment in the specification at column, pardon me, I'll give you that. [00:34:00] Speaker 03: at column two, line 58. [00:34:05] Speaker 03: It says a shoulder is arranged on the inside of the channel. [00:34:09] Speaker 03: And that issue was on appeal and that came out of nowhere. [00:34:18] Speaker 03: So the court didn't actually use the claim construction that it told us it was going to use, which was the plain meaning. [00:34:26] Speaker 03: And the parties fought about [00:34:27] Speaker 03: frankly. [00:34:29] Speaker 01: Okay, so can I just go back? [00:34:30] Speaker 01: I'm sorry, I may be the only one confused. [00:34:32] Speaker 01: Sure. [00:34:33] Speaker 01: So was her determination, the claim construction determination that we spent 20 minutes talking about earlier, about whether or not four sloping walls are required, does that just have no relevance to infringement because they use four sloping walls? [00:34:49] Speaker 03: No, it does have relevance to infringement because two of their walls, let's put it this [00:34:58] Speaker 03: Two of their walls, from our position, it's easier to read the shoulder limitation on two of their walls as opposed to their other two. [00:35:09] Speaker 03: They have two sets of walls that are different. [00:35:12] Speaker 01: Let me ask the question another way. [00:35:14] Speaker 01: If we were to agree with her construction that four sloping walls are required in every single plane, does that dispose of the infringement question? [00:35:25] Speaker 03: No, Your Honor. [00:35:25] Speaker 00: Because you say that there's still a question as to whether the shoulders are found in the accused device as claimed. [00:35:34] Speaker 03: That's right. [00:35:34] Speaker 03: And in fact, Your Honor, we were operating through summary judgment after she ruled on, after the district court ruled on the sloping sidewalls. [00:35:46] Speaker 05: Now I'm confused. [00:35:47] Speaker 05: Your friend told us in answer to a direct question that the accused devices had four sloping walls. [00:35:56] Speaker 05: You're telling us that that's insufficient? [00:36:01] Speaker 03: Well, yes. [00:36:04] Speaker 03: In this case, Your Honor, so we were operating under the situation that there were four sloping sidewalls. [00:36:11] Speaker 03: And then our experts were fighting about whether there are four sides. [00:36:17] Speaker 03: Two of them look one way. [00:36:18] Speaker 03: Two of them look the other way. [00:36:20] Speaker 03: There didn't seem to be any dispute that the shoulder would be [00:36:24] Speaker 03: that the shoulder has called for in the claims was present in two of them. [00:36:29] Speaker 03: But in the other two sides, that's where we were disputing. [00:36:32] Speaker 03: And so if the court were to say, go with our construction. [00:36:36] Speaker 01: No, let's assume the court goes with the other construct. [00:36:38] Speaker 03: OK. [00:36:39] Speaker 03: And again, that's what we were operating under all along. [00:36:42] Speaker 03: We had the court's construction. [00:36:43] Speaker 03: Then we went to summary judgment. [00:36:45] Speaker 03: Then we went to experts. [00:36:46] Speaker 03: That's the way that Illinois District Court requires us to do it. [00:36:49] Speaker 03: Went through all the expert. [00:36:50] Speaker 03: We were operating under that assumption. [00:36:53] Speaker 03: that all four would be required. [00:36:56] Speaker 03: But the dispute was over two of the walls, whether the shoulder limitation itself, which talks about where the shoulder projects inwardly and has to be between a flange and a channel. [00:37:08] Speaker 03: And that's the language that it says. [00:37:10] Speaker 03: And that's what the experts fought about. [00:37:11] Speaker 03: They fought about whether, on two particular walls, that actually occurred. [00:37:16] Speaker 03: We said it did. [00:37:16] Speaker 03: The other side said it didn't. [00:37:19] Speaker 01: What did the district court say on that? [00:37:20] Speaker 03: Well, what the district court said is [00:37:24] Speaker 03: Essentially nothing. [00:37:25] Speaker 03: The district court started out in her opinion, in its opinion. [00:37:30] Speaker 03: What did she conclude? [00:37:32] Speaker 03: She concluded non-infringement based on the fact that the Q shoulder is quote, arranged on the inside of the channel. [00:37:40] Speaker 01: Can you tell me where that is? [00:37:41] Speaker 03: Yes, that's at A15 at the bottom of the page. [00:37:46] Speaker 03: And what you see is right after that sentence, the court says the claim language clarifies the location of the shoulder limitation as do the patent figures and specifications. [00:37:56] Speaker 03: That's a claim construction analysis. [00:37:57] Speaker 03: But the court had already said that the court had done that. [00:38:00] Speaker 03: And in fact, we had operated under a different claim construction, which was plain meaning. [00:38:05] Speaker 03: And that's what the experts had thought about. [00:38:07] Speaker 03: Then the court says the court need not and cannot turn to extrinsic evidence, which [00:38:13] Speaker 03: again is misplaced because that's not what was being talked about at this stage. [00:38:17] Speaker 03: The claim construction had already happened a long time ago. [00:38:20] Speaker 03: And it says such as expert reports, which to me tells me my expert reports, neither party's expert reports were considered on the issue of little infringement. [00:38:28] Speaker 03: To be clear, later on there's a question of equivalence, which was not on appeal here, is not on appeal. [00:38:34] Speaker 03: And the court does mention something about the expert reports. [00:38:37] Speaker 03: So I don't want to be misleading. [00:38:39] Speaker 03: And then for good measure, you'll see on page A16, [00:38:43] Speaker 03: There's a site to Votronix, which says you don't need the site to extrinsic evidence. [00:38:48] Speaker 03: So the issue on appeal here is that the court actually granted summary judgment, sua sponte, which the case law says you can do as long as all of the parties have a chance to submit evidence on that point. [00:39:04] Speaker 00: Where on the pictures, either on page A13 or on A16, [00:39:12] Speaker 00: Do you say the shoulder is in the accused device on the sidewalls that have the vent? [00:39:20] Speaker 03: OK. [00:39:21] Speaker 03: On A13, the shoulder is, well, it's hard to point to it because there's not an arrow pointing to it. [00:39:32] Speaker 03: But if you look on the very left portion, it's protruding, if you will. [00:39:37] Speaker 03: And at the top of that is the shoulder. [00:39:39] Speaker 03: Protruding? [00:39:40] Speaker 03: Towards the left of the paper. [00:39:44] Speaker 05: So where she says at 16, again, quoting, I gather, from the specification, the accused products do not have a lateral protrusion extending between the top of the sloping walls of the crate and the channel base. [00:40:00] Speaker 05: Are you saying that that's correct or incorrect? [00:40:05] Speaker 03: Well, I'm saying that's not what the claim construction was. [00:40:09] Speaker 03: And not only that, the shoulder request. [00:40:12] Speaker 05: But it just says what the accused products have. [00:40:14] Speaker 05: not the claim construction, says the accused products do not have a lateral protrusion extending between the top of the sloping walls of the crate and the channel base or the bottom of the inner flange of the channel. [00:40:29] Speaker 03: We say that's incorrect. [00:40:31] Speaker 03: And in fact, that's what our experts and everyone argue about in the summary judgment papers that were submitted that appear not to have been considered. [00:40:40] Speaker 03: And instead, what the court decided to do was say, [00:40:43] Speaker 03: we're going to say that the Q shoulder must be arranged on the inside of the channel. [00:40:48] Speaker 03: And if you think about that, if that had been proposed to us, I think there would have been a lot of dispute about it. [00:40:56] Speaker 03: Because arranged on the inside of the channel, what I think the court may have meant by that, again, this is claim construction at the wrong time. [00:41:04] Speaker 03: But what it may have meant is interior to the bucket. [00:41:08] Speaker 03: The channels, there's two channels on the outside, so inside the channel could be up in the channel up here, it could be down in the channel, I mean it's not, it's very vague and it's not a construction that would make sense. [00:41:18] Speaker 00: All right, on page A16, the photographs of the accused device, where's the shoulder on the side that has the vent? [00:41:25] Speaker 03: Sure. [00:41:26] Speaker 03: The shoulder is, if you see, it's the little top, it's at least the, [00:41:38] Speaker 03: You see where it says shoulder and the arrows are pointing down? [00:41:40] Speaker 03: Yeah. [00:41:41] Speaker 03: While it includes that, it specifically also includes if you go towards the left or towards the right. [00:41:46] Speaker 03: So the upper part of that sloping part, those little nubs include the shoulder as well. [00:41:52] Speaker 03: I'm not seeing any little nubs. [00:41:55] Speaker 00: What photograph are you? [00:41:57] Speaker 00: What figure are you? [00:41:57] Speaker 03: I'm sorry. [00:41:57] Speaker 03: I think you asked me to look at Figure 8 on A-16. [00:42:00] Speaker 03: I was looking at Group Figure 2. [00:42:02] Speaker 03: Oh, I apologize. [00:42:04] Speaker 03: Group Figure 2, Your Honor, which one? [00:42:06] Speaker 00: On A16, it's the two figures, the one to the left. [00:42:12] Speaker 03: Okay, right. [00:42:13] Speaker 03: On that A16, the one on the left, you can't see the shoulder because it's internal to the bucket, to the crate. [00:42:20] Speaker 03: You can't see it there. [00:42:27] Speaker 00: So the figure eight is the interior view of the vented wall. [00:42:34] Speaker 03: That's correct. [00:42:34] Speaker 00: And the shoulder [00:42:36] Speaker 00: is the structure that runs along the top of the vents. [00:42:42] Speaker 03: That's correct. [00:42:43] Speaker 03: Including at the ends of that structure is what I was trying to say, not our fight. [00:42:48] Speaker 03: OK. [00:42:49] Speaker 03: Thank you, Your Honor. [00:42:50] Speaker 03: Thank you. [00:42:51] Speaker 01: We thank both sides of the cases submitted. [00:42:53] Speaker 01: That concludes our proceedings for this morning.