[00:00:00] Speaker 00: to 16-1-2-0-0, PolyAmerica versus API industry. [00:01:05] Speaker 00: Good morning, Your Honor. [00:01:11] Speaker 04: I'm Aaron Mauer here on behalf of PolyAmerica. [00:01:13] Speaker 04: With me here at the Council table is my partner, Craig Singer, and my colleague Sanjeev Lad is here as well. [00:01:20] Speaker 04: May it please the Court. [00:01:21] Speaker 04: The trial court erred in construing the term short seal in Claim 10 to require that the seals narrow the opening of the claim trash bag. [00:01:32] Speaker 04: The fundamental problem with the trial court's construction is that the plain language meaning of short seal does not include any requirement regarding the width of the bag opening. [00:01:44] Speaker 00: Beyond that though, starting with the fact that the title of the patent is reduced opening elastic drosting bag, looking at everything in the spec, looking at the prosecution history [00:01:57] Speaker 00: where you specifically distinguished the prior art on the basis that it did not disclose near or bad openings. [00:02:04] Speaker 00: Why, looking at the intrinsic record as a whole, as we're required to do, do we not come to the same conclusion the district court came to? [00:02:14] Speaker 04: Well, let me take those points individually, Your Honor. [00:02:16] Speaker 04: First of all, this is a case that's based in disavowal. [00:02:20] Speaker 04: So there has to be a clear and unmistakable disclaimer, either in the written description or in the prosecution history. [00:02:27] Speaker 04: And there's not one here. [00:02:29] Speaker 04: Let me start with the claims. [00:02:31] Speaker 04: Let's contrast claim 10 with claims 1 and 16. [00:02:35] Speaker 04: Claims 1 and 16 each have expressed limitations requiring a narrowed bag opening. [00:02:40] Speaker 04: Those limitations are not found in claim 10. [00:02:44] Speaker 04: This was found to be compelling evidence of no disavowal in the recent unwired plan decision that we submitted under Rule 28A. [00:02:54] Speaker 04: If we use the construction of short seal that was given for claim 10 in claims 1 and claim 16, you end up with a redundancy with the final limitations in those claims. [00:03:06] Speaker 04: Furthermore, claim 13's limitation requiring the bag opening to be less than 100% would be superfluous. [00:03:15] Speaker 04: When we turn to the specification, the description in the specification is clear. [00:03:21] Speaker 04: is directed to more than just bags with a narrowed opening. [00:03:25] Speaker 04: Specification highlights a number of different important features. [00:03:28] Speaker 00: Can you go back to what you just said on point 13? [00:03:31] Speaker 00: I didn't understand that. [00:03:32] Speaker 00: You say that there they say to a width of the bag proper being greater than 94% but less than 100%. [00:03:40] Speaker 04: Yes, Your Honor. [00:03:41] Speaker 00: Why is that superfluous? [00:03:43] Speaker 04: It's the less than 100% part that's superfluous. [00:03:50] Speaker 00: what they say is between greater than 94 but less than 100. [00:03:55] Speaker 04: So... If short seals necessarily limited the opening of the bag as the district court's construction would have, then the less than 100% limitation is not required. [00:04:08] Speaker 03: They could just say that that claim would be... That doesn't make it superfluous. [00:04:11] Speaker 03: You still have a claim limitation there that would be between 94 and 100. [00:04:16] Speaker 03: You could have a shorter seal that makes it less than 94, but that wouldn't cover that claim. [00:04:23] Speaker 04: The 94%, I agree, Your Honor, is doing some lifting in claim 13. [00:04:27] Speaker 04: It's the less than 100% language that is superfluous. [00:04:34] Speaker 04: We're moving on to the specification. [00:04:35] Speaker 04: Yes, we're moving on to the specification. [00:04:38] Speaker 04: The specification in total is clear that the [00:04:43] Speaker 04: scope of this invention is greater than just bags. [00:04:45] Speaker 02: Council, why don't you start with the specification by looking at the description of the invention. [00:04:53] Speaker 02: Absolutely. [00:04:53] Speaker 02: The use of the language, the present invention. [00:04:56] Speaker 04: Yes. [00:04:56] Speaker 04: So let's look at exactly that language, which is a column three, line 46, under the summary of the invention. [00:05:04] Speaker 04: It starts, the present invention is directed toward an improved construction of an elastic drawstring trash bag. [00:05:11] Speaker 04: It doesn't say anything there about a narrowed opening. [00:05:14] Speaker 04: And then it continues in that paragraph to describe features that are common to all of the claims. [00:05:20] Speaker 04: Claim 10, as well as claims 1 and 16, and all the claims that depend there from. [00:05:25] Speaker 04: It talks about features such as an elastic drawstring. [00:05:28] Speaker 04: It talks about bagged panels. [00:05:30] Speaker 04: It talks about hems. [00:05:32] Speaker 04: And importantly, it talks about the short seals inseparably joining the elastic drawstrings [00:05:39] Speaker 04: and the bag panels which have been folded over into halves. [00:05:42] Speaker 04: And it distinguishes the prior art. [00:05:44] Speaker 04: This is now at the bottom of column three, at line approximately 63 or so. [00:05:49] Speaker 04: It distinguishes the prior art on that basis, that the prior art doesn't have those inseparable short seals. [00:05:56] Speaker 04: The first time that the summary of the invention talks about a narrowed bag opening is at the top of the next column, where it talks about, quote, embodiments of the elastic-frostering bag. [00:06:07] Speaker 04: And it is clear to a person of skillful art that it is talking only about embodiments there, not every embodiment, just certain embodiments. [00:06:15] Speaker 04: And it's clear because that sentence continues to say that the width is less than 97% of the width of the bag. [00:06:24] Speaker 04: That is a limitation on the bag opening that is not found in the independent claims. [00:06:30] Speaker 04: That's only found in the dependent claims. [00:06:32] Speaker 04: That is talking about certain embodiments, not full embodiments. [00:06:38] Speaker 04: And likewise, when you continue into the detailed description of the invention, there are some statements with respect specifically called out to figures one and figures two about the narrowed opening. [00:06:52] Speaker 04: But with respect, those statements are talking about an aspect of the present invention. [00:06:58] Speaker 04: It is the aspect of the present invention that is the embodiments that are claimed in claim one and claim 16. [00:07:04] Speaker 04: It doesn't say all embodiments. [00:07:06] Speaker 04: There's no language here such as you have in your cases where it says all parts are present. [00:07:11] Speaker 03: Is there anything in the specification that talks about openings that aren't narrowed? [00:07:18] Speaker 04: That's sort of proving a negative, with respect, Your Honor. [00:07:21] Speaker 04: The portion of the specification that I pointed you to in column three, where it's talking about the present invention, where it describes all of the assets. [00:07:29] Speaker 03: It's not really proving a negative. [00:07:30] Speaker 03: I mean, if you'd had an embodiment that had 100% opening, then [00:07:34] Speaker 03: that would be very clear that it was claiming that as well. [00:07:38] Speaker 04: That's correct, Your Honor. [00:07:39] Speaker 04: There is no, I will agree, there's no specific embodiment here that has... But that's why I ask you about the language and the specification. [00:07:46] Speaker 03: I mean, it's clear to me, I can look at the pictures. [00:07:47] Speaker 03: There are not any pictures that have non-narrowed opening except the prior art. [00:07:53] Speaker 03: But is there anything in the language of specification even suggesting that there's something that includes a non-narrow? [00:07:59] Speaker 03: Whereas your argument entirely based upon the broad reading of claim one [00:08:04] Speaker 03: standing alone. [00:08:06] Speaker 04: I don't think that's a fair characterization. [00:08:08] Speaker 04: I think the specification, when you read it, talks about a number of different features of the invention. [00:08:14] Speaker 04: It talks about, as I mentioned, the elastic drawstring, the inseparable seal. [00:08:18] Speaker 03: Right, right. [00:08:19] Speaker 03: But we're talking about the short seal. [00:08:20] Speaker 03: Is there anywhere, whenever it specifically discusses the placement of the short seal, that it doesn't talk about it as extending inward? [00:08:30] Speaker 04: The only place in the specification it talks about [00:08:33] Speaker 04: the placement of the short seal is with respect to the embodiments of figures one and figure two, which is a narrowed opening. [00:08:40] Speaker 00: Well, if you look at column six, and it's talking about, you're right, it references figure one and figure two, but followed by it is important to note that one of the characteristics of the present invention is the reduction in the upper width in a typical embodiment. [00:08:57] Speaker 00: I mean, so you're saying just because they're referring [00:09:01] Speaker 00: They're using the term one of the characteristics of the present invention. [00:09:05] Speaker 00: That is limited to the two figures because those are embodiments. [00:09:09] Speaker 00: I'm missing something. [00:09:11] Speaker 04: Well, Your Honor, I think that the language at the beginning of that statement in looking at both figure one and figure two is important language. [00:09:20] Speaker 04: It is clear in the specification at column five, line 48 that figure one is just an embodiment. [00:09:27] Speaker 04: That column... That's true. [00:09:28] Speaker 00: They are embodiments. [00:09:29] Speaker 00: So what it says is, [00:09:31] Speaker 00: When you look at the embodiments, it is important to note that one of the characteristics of the present invention, they call it a characteristic of the present invention. [00:09:42] Speaker 00: They don't say one embodiment of the present invention, a characteristic of the present invention, right? [00:09:50] Speaker 04: I see your point, but with respect, if this specification meant [00:09:55] Speaker 04: to talk about all embodiments, it would not need the language in looking at both Figure 1 and Figure 2. [00:10:00] Speaker 02: But it does go to all embodiments. [00:10:03] Speaker 02: Look at Column 4 around Line 5. [00:10:07] Speaker 02: And it says, the embodiments of the elastic drawstring bag contemplated by the present invention. [00:10:13] Speaker 02: And then it goes ahead and talks about the narrowing of the top of the different liners. [00:10:21] Speaker 02: Yes, Your Honor, but here... Where it's referencing to all the embodiments. [00:10:24] Speaker 04: But here it's clear that it's not talking about whole embodiments because it says less than 97%. [00:10:30] Speaker 04: And it is clear that there's no limitation on, for instance, claims 1 or claim 16, that the bag with opening be less than 97% of the total length of the bag. [00:10:43] Speaker 04: It's just talking about an embodiment. [00:10:45] Speaker 04: I think, Judge, to address your question, what we have here is a [00:10:50] Speaker 04: patentee who was doing their best under the rules at the time to describe their best mode, what their preferred was. [00:10:56] Speaker 04: And their preferred embodiment was a combination that had all sorts of different elements. [00:11:01] Speaker 04: It had panels. [00:11:02] Speaker 04: It had hems. [00:11:03] Speaker 04: It had elastic drawstrings. [00:11:05] Speaker 04: It had central cutouts. [00:11:07] Speaker 04: It had preferred embodiment, as claimed 1 and claimed 16, the narrowed opening. [00:11:13] Speaker 04: That's not all embodiment. [00:11:15] Speaker 04: And that's clear because claim 10 doesn't have that language. [00:11:18] Speaker 03: It's not all embodiments? [00:11:20] Speaker 03: No, Your Honor. [00:11:20] Speaker 03: Then point to me in the specification where it describes an embodiment that doesn't have a shortened opening. [00:11:26] Speaker 04: There's not a specific description of an embodiment in the specification for that. [00:11:31] Speaker 04: But the claims cover embodiments that don't have it. [00:11:34] Speaker 04: We've got a combination claim where the applicant has taken different combinations of the features and they have claimed them. [00:11:41] Speaker 04: Let me move, if I can, to the prosecution history, because I think it is clear there. [00:11:48] Speaker 04: I would suggest the July 2012 reply to the office action lays it out most clearly. [00:11:55] Speaker 04: This is at A263 is where it starts, but the arguments are at A267. [00:12:04] Speaker 04: And at A267, the patentee argues several distinctions over the prior art. [00:12:11] Speaker 04: One of those distinctions, it's true, is the narrowed bag opening. [00:12:15] Speaker 04: And that's perfectly appropriate, because claims 1 and 16 have that limitation. [00:12:20] Speaker 04: But there are other distinctions argued from the client as well. [00:12:24] Speaker 04: For claim 10 in particular, I'm sorry, you're reading it. [00:12:27] Speaker 04: A267. [00:12:28] Speaker 04: A267, Chief Judge Chris. [00:12:31] Speaker 04: Claim 10 in particular is distinguished at A267 on the basis of the inseparably welded [00:12:39] Speaker 04: short seals that join together the bag panels and the elastic drawstring. [00:12:45] Speaker 04: This is the same thing that was discussed at column 3, line 7 through 28. [00:12:50] Speaker 04: This is the prior Anki reference that is being distinguished here. [00:12:54] Speaker 04: That's where claim 10 is distinguished. [00:12:57] Speaker 04: That's how claim 10 is distinguished, not on the basis of the narrowed opening. [00:13:02] Speaker 04: And how do we know that? [00:13:03] Speaker 04: Well, when we look at the argument about the narrowed opening, [00:13:07] Speaker 04: that API cites in its briefing and that the district court cited in its decision starting at A272, the argument there is quoting directly from the language of claim one and claim 16. [00:13:21] Speaker 04: Language that the relaxed upper opening width is less than the bag proper width as claimed. [00:13:27] Speaker 04: And language that the distance between the interior edges of the short seals is less than the distance between the interior edges of the side seals. [00:13:34] Speaker 04: That's claim 16. [00:13:37] Speaker 04: There cannot be, I would submit, a clear and unmistakable disclaimer of the scope of claim 10, where this argument is quoting from the language of claims 1 and claim 16 and is clearly directed to those embodiments of the present invention. [00:13:59] Speaker 04: Likewise, when you look at the examiner interview summary, [00:14:04] Speaker 04: which was cited. [00:14:04] Speaker 04: First of all, the examiner interview summary can't be a clear and unmistakable disclaimer because it's the examiner saying it, not the applicant. [00:14:13] Speaker 04: But the language there maps back directly to what we just looked at in that July 2012 response. [00:14:19] Speaker 04: It talks about the elastic drawstrings, which were mentioned as a distinction from the prior. [00:14:23] Speaker 04: It talks about the inseparably welded, which was a distinction. [00:14:26] Speaker 04: And it talks about the reduced upper opening. [00:14:29] Speaker 04: I say I'm in my rebuttal time. [00:14:30] Speaker 04: Why don't we hear from the other side? [00:14:32] Speaker ?: Thank you. [00:14:39] Speaker 01: Good morning, Your Honors. [00:14:40] Speaker 01: Jack Blumenfeld for the APLE API along with Michael Flynn, also from Morris Nichols firm. [00:14:49] Speaker 01: I'd like to start by addressing a question that Judge Hughes raised. [00:14:54] Speaker 01: And Judge Hughes, I think you asked, was show me where in the intrinsic record, where in the specification, there are examples of bags that do not have narrowed [00:15:07] Speaker 01: upper openings, reduced upper openings as a result of the extended short seals. [00:15:13] Speaker 01: There are only two places in the intrinsic record where there are such bags shown. [00:15:19] Speaker 01: One of them is figure four of the patent, which is discussed in column five. [00:15:23] Speaker 01: Figure four shows one thing. [00:15:25] Speaker 01: It shows the upper corner and it shows it not being extended. [00:15:29] Speaker 01: And what does the patent say about that? [00:15:33] Speaker 01: It says, this is the prior art. [00:15:36] Speaker 01: This is a column five. [00:15:37] Speaker 01: starting the paragraph at line 32. [00:15:43] Speaker 01: So here's the prior art, upper corners. [00:15:46] Speaker 01: That's the conventional bag. [00:15:48] Speaker 01: The width of the short seals are minimized. [00:15:51] Speaker 01: It's undesirable and unnecessary to provide a short seal any larger than the distance from the edge of the side seal to the other side seal. [00:15:59] Speaker 01: So they're saying when you look at figure four, which is, I think, what you're asking about, that's the prior art. [00:16:05] Speaker 01: And then they begin the next paragraph. [00:16:07] Speaker 01: The inventor begins the next paragraph at line 46 of column 5. [00:16:11] Speaker 01: In contrast to a conventional non-elastic drawstring bag, distinguishing figure 4, says the short seals 120 of the elastic drawstring bag 100 are widened. [00:16:22] Speaker 01: So what they're saying at that point, and that's the first of the two, is... Right, I get all that. [00:16:26] Speaker 03: I mean, it seems to me that's clear. [00:16:28] Speaker 03: I assume their response is going to be, this is all referring to the particular embodiments here. [00:16:33] Speaker 03: It doesn't cover the general claim language. [00:16:37] Speaker 01: Right, Your Honor, that may be their response. [00:16:40] Speaker 01: That's not what the spec says, because the spec says repeatedly, present invention. [00:16:44] Speaker 01: But I think the next point, I was a little surprised to hear them referring to the July 2012 prosecution history, because that's the prosecution history where they told the Patent Office that all of the independent claims and the independent claims at that time were 1, 10, and 16, just like they are now. [00:17:05] Speaker 01: that all of the independent claims required a narrow upper opening and required the short seals to be extended inwardly. [00:17:15] Speaker 01: And if you start at the beginning, this has to do with the Schneider prior art, which is the second example of a non-narrow upper opening. [00:17:25] Speaker 01: And they put a drawing of Schneider in on page A272. [00:17:28] Speaker 01: They put it in earlier on the first response to the first office action at A230. [00:17:35] Speaker 01: the non-narrowed upper opening. [00:17:38] Speaker 01: And what do they say? [00:17:39] Speaker 01: Well, they start at 267. [00:17:40] Speaker 01: And at the bottom, they say, Schneider still fails to disclose a relaxed upper opening width that is less than the bag proper width because the distance between the Schneider side seals and the Schneider sort seals are identical. [00:17:55] Speaker 01: That's in response to a rejection of all the claims. [00:17:59] Speaker 01: And if you look above that on the page, [00:18:02] Speaker 01: He specifically says claims 1 to 16 have been rejected. [00:18:06] Speaker 01: He calls out claim 10 twice, and he says that. [00:18:10] Speaker 01: And then when you get to A272, what the applicant says is that the Schneider bag would lack an important claimed element, namely that the relaxed upper opening width is less than the bag proper as claimed. [00:18:26] Speaker 01: A corollary to this claim limitation is that the distance between the interior edges of the short seals [00:18:31] Speaker 01: is less than the distance between the interior edges of the side seals. [00:18:36] Speaker 01: They go through, and again, the middle of that page, they talk about applicants' independent claims, unambiguously define those relative distances. [00:18:45] Speaker 01: And at the top of 273, thus applying applicants' claim definitions of the terms, the relaxed upper opening width of Schneider is the exact same as the bag proper width, not less than the bag proper width, as required by applicants' independent claims. [00:19:02] Speaker 01: It doesn't say as required by claim one, as required by claim 16. [00:19:06] Speaker 01: It says the independent claims, which include claim 10. [00:19:09] Speaker 01: And the only reason that we're arguing about claim 10 is because this is the argument that the examiner found persuasive. [00:19:17] Speaker 01: And that's what he said at A282, that he found this argument persuasive. [00:19:24] Speaker 01: And later in the prosecution history, again, referred back to this very argument. [00:19:30] Speaker 01: on A346, and he says claims 1 to 16, he's permitting them over section 103 because of that argument. [00:19:41] Speaker 01: So to come in, make an argument to the patent office that all of the independent claims require the narrowed upper opening, all of the independent claims require the extended short seals, and then to come into litigation and say, there's no express disclaimer, there's no express disavowal, I don't know how you could [00:20:00] Speaker 01: how you could have more of an express disavowal than telling the patent office the prior art that doesn't have the narrowed upward opening is different for that reason, is different than all of the applicants' independent claims. [00:20:15] Speaker 01: And those are the only two places where this issue is addressed directly in the intrinsic record. [00:20:22] Speaker 01: Now, the issue is addressed indirectly over and over in [00:20:29] Speaker 03: I suppose that's what you think about, what it means to be an explicit disavowal. [00:20:35] Speaker 03: If we take it to extremes, it could mean that it would require a statement that this invention only includes narrowed openings. [00:20:45] Speaker 03: I think that even you would agree that's not necessarily in the claims or the specifications. [00:20:52] Speaker 03: I get your argument on the prosecution history. [00:20:54] Speaker 01: No, I think that that's true even of the specification. [00:20:59] Speaker 01: I will go through that a little bit and explain why. [00:21:02] Speaker 01: I think one of the reasons is because once very clearly and in other times in the spec at column six, it does talk about the present intervention. [00:21:11] Speaker 01: And yes, it comes after a sentence on figures one and figure two. [00:21:14] Speaker 03: Right, but it does it in a kind of more positive sense rather than an exclusionary sense. [00:21:20] Speaker 01: Yes, is there a statement in the patent that says this? [00:21:24] Speaker 03: I'm testing really, I probably should be testing it with your friend, but the boundaries of their argument about what explicit really means. [00:21:31] Speaker 03: I mean, if what they're saying is it has to include an explicit sentence that says this only includes X to be a disavowal, I think that's a pretty extreme reading of our precedent. [00:21:44] Speaker 01: Well, I think the prosecution history does say that. [00:21:48] Speaker 01: It doesn't say [00:21:50] Speaker 01: we exclude the other things other than in column five where it says, here's the prior art. [00:22:00] Speaker 01: In contrast, the invention is widened. [00:22:03] Speaker 01: So I think you could read that as being an express disavowal of what's in figure four, which is, by the way, identical to the accused devices. [00:22:11] Speaker 01: But when you look at it, just to follow up on something that Judge Proce said, what this patent is all about [00:22:20] Speaker 01: is having a reduced upper opening of the trash bag. [00:22:24] Speaker 01: The title is reduced opening. [00:22:27] Speaker 01: When you look at the abstract, it talks about the present invention is directed to improve trash bags. [00:22:33] Speaker 01: The upper opening is reduced by decreasing the distance between the interior edge of the openings. [00:22:39] Speaker 01: The reduced upper opening allows the user to pull the bag over the top of the trash receptacle and allowing it to snugly fit. [00:22:47] Speaker 01: And then in column two, the problem that they're trying to solve is the trash bags falling inside the receptacle or the trash can. [00:22:55] Speaker 01: And the solution was about having a reduced upper opening and having narrowed short seals. [00:23:03] Speaker 01: Even when they get to column seven and they talk about the materials you could use, they talk about the reduced distance between the short seals. [00:23:10] Speaker 01: You can use these materials for that. [00:23:13] Speaker 01: So there's not a word in the patent about [00:23:16] Speaker 01: non-extended short seals, except referring to the prior art that was distinguished. [00:23:22] Speaker 01: Those non-extended short seals are distinguished in the prior art and are the basis for the allowance of the patent. [00:23:32] Speaker 01: And the law from this court is very clear that you can't just look at the words. [00:23:37] Speaker 01: You have to look at the context of both the specification and the prosecution history. [00:23:43] Speaker 01: And here, I don't think there's any [00:23:45] Speaker 01: any question about that. [00:23:46] Speaker 01: Unless there are questions, I don't have anything further. [00:23:50] Speaker 01: Thank you. [00:23:59] Speaker 04: Thank you, Your Honor. [00:24:00] Speaker 00: I want to pick up with the prosecution history that Mr. Bloom... What kind of language would you think was sufficient to satisfy our case law on an explicit disclaimer? [00:24:13] Speaker 04: The language that has been used in the past has been the present invention is, all embodiments of the present invention include... I'm talking about the prosecution history. [00:24:23] Speaker 04: Oh, in the prosecution history, Your Honor, the standard as set forth in the computer docking station case is that there has to be a clear and unambiguous disclaimer of the claim scope. [00:24:34] Speaker 04: That's a 519 [00:24:35] Speaker 04: So how would that translate to our case? [00:24:38] Speaker 04: What would they have had to say that they didn't say? [00:24:41] Speaker 04: If they said with respect to claim 10, that claim 10 requires the short seals, or that the crux of the invention with respect to claim 10 is short seals and narrow the bag opening, that would do it. [00:24:54] Speaker 04: But we don't have that. [00:24:55] Speaker 04: And it's clear we don't have that because every place that they cite in the prosecution history and that they cited in argument today where they're talking about the narrowed bag opening [00:25:05] Speaker 04: It is tied expressly to language that's found in claims 1 and claim 16, but not in claim 10. [00:25:13] Speaker 02: And in fact, Mr. Blumenfeld points to the- Are you saying that the examiner did not reject claim 10? [00:25:19] Speaker 04: No, no. [00:25:20] Speaker 04: The examiner did reject claim 10. [00:25:22] Speaker 04: But claim 10 was distinguished from the prior art not on the basis of the narrowed bag opening, but on the basis of the elastic drawstring and the inseparable [00:25:32] Speaker 04: The inseparable welds are a very important aspect of this invention, which were called out in the specification at column two and column three and in the prosecution history in that July 2012 response as well. [00:25:47] Speaker 04: But if you look at the examiner's reasons for allowance, this is at page A346 that Mr. Blumenfelder referred to, he refers to [00:25:59] Speaker 04: The applicant's arguments at pages 6 through 14 of the July 2012 amendment and pages 6 through 14 include, right on page 6, the argument, the distinction that was drawn for claim 10 based not on the narrate opening, but based on the inception of the will. [00:26:19] Speaker 02: Claim 10 has the language relating to short seals. [00:26:22] Speaker 02: not just inseparable welding. [00:26:26] Speaker 04: That's right. [00:26:26] Speaker 04: But there's no dispute here, Your Honor, that short seals by its plain meaning doesn't say anything about the whiff. [00:26:31] Speaker 04: This is a disclaimer. [00:26:32] Speaker 04: The Court's construction does. [00:26:34] Speaker 04: The Court's construction does based on disavowal. [00:26:37] Speaker 04: And we're suggesting that that's incorrect because there's no clear and unambiguous statement in the prosecution history. [00:26:43] Speaker 04: There's no clear and unmistakable disclaimer in the specification of [00:26:47] Speaker 04: Claim 10. [00:26:48] Speaker 04: And the best evidence for that is the same thing that this court found compelling in the Unwired Planet case, which we cited, which is look at Claim 10 and compare its limitations regarding the bag opening width, there are none, to the limitations of Claims 1 and 16 on the other hand, which have expressed limitations narrowing the bag width. [00:27:07] Speaker 04: If the patentee had wanted to define his invention that way, he knew how to do it and could have done it. [00:27:12] Speaker 04: There's just not a clear disclaimer otherwise. [00:27:15] Speaker 04: I see my time has expired. [00:27:16] Speaker 04: Thank you. [00:27:17] Speaker 00: We thank both parties. [00:27:18] Speaker 00: The case is submitted. [00:27:19] Speaker 04: Thank you.