[00:00:00] Speaker 00:
The argument is 16, 1, 2, 1, 6, pro-sport versus mo-sport.

[00:00:28] Speaker 00:
Both sides ready, Mr. Nero, whenever you're ready.

[00:01:08] Speaker 01:
Good morning, Your Honor.

[00:01:10] Speaker 01:
If this pleases the court, I am William Nero, and I'm representing the plaintiff of Pell and Profoot, Incorporated.

[00:01:18] Speaker 01:
We're here to ask you, this court, to vacate the claim construction, opinion, and order, and remand the case to the district court for further proceedings.

[00:01:29] Speaker 02:
Can I just clarify this?

[00:01:30] Speaker 02:
You have to win on both claim construction issues, right?

[00:01:33] Speaker 02:
I mean, if we agree with the district court on one, there's no infringement.

[00:01:38] Speaker 01:
Is that right?

[00:01:39] Speaker 01:
Really, it's the first one.

[00:01:41] Speaker 02:
I think that the neutralizing, correct.

[00:01:43] Speaker 01:
I think neutral, even the construction of neutral position is, I think it's a different way of saying the same thing, really.

[00:01:54] Speaker 01:
I think it's really unnecessary to go where he went.

[00:01:58] Speaker 01:
So the first one's important.

[00:02:00] Speaker 01:
Correct.

[00:02:01] Speaker 01:
Yes, sir.

[00:02:04] Speaker 01:
There is a very narrow issue on this appeal, correct.

[00:02:07] Speaker 01:
As you know from our briefs that we believe the district court made a fundamental error, a fundamental error in construing the claim term neutralizer and neutral position.

[00:02:18] Speaker 01:
First, the district court read the terms from the specification of preferred embodiment into the claim term neutralizer.

[00:02:26] Speaker 04:
Can I ask you this?

[00:02:29] Speaker 04:
I didn't see any argument or evidence to the effect that neutralizer

[00:02:37] Speaker 04:
is a term that has a customary, ordinary meaning in the art outside the patent to identify a kind of structure, like screwdriver or something.

[00:02:49] Speaker 04:
So in the absence of that, one has to turn to figure out what this is supposed to mean almost from the get-go to the specification.

[00:03:00] Speaker 04:
And right there, the rest of the patent, and starting with the abstract,

[00:03:06] Speaker 04:
It says, here's structure that we think is part of this term that is otherwise not defined.

[00:03:14] Speaker 04:
Why is that not the proper basis for what the district court adopted as a claim construction for mutualizer?

[00:03:23] Speaker 01:
Well, first of all, I think it's not a coined phrase in the sense that it has a special meaning.

[00:03:28] Speaker 01:
If you look at the context of the patent as a whole, what's taking place is

[00:03:34] Speaker 01:
attempting to measure a person's imbalance, their pronation or supination, and then correct that in a way that places them in a neutral position.

[00:03:44] Speaker 01:
So in a sense, you take the neutral position of the part of the claim and you'd say, well, wait a minute, it's attempting to create this neutral position.

[00:03:52] Speaker 01:
And you're using a device called a neutralizer.

[00:03:57] Speaker 01:
So that it doesn't have, I mean, a person of skill in the arts

[00:04:01] Speaker 01:
understands or would understand the neutralizer to simply be a device that is measuring the individual's imbalance in order to place them into a balanced position.

[00:04:12] Speaker 04:
Why would that not be a purely functional term?

[00:04:19] Speaker 04:
A thing that neutralizes, which certainly makes me think of it, probably makes you think of 112F.

[00:04:26] Speaker 04:
Purely functional in the absence of some

[00:04:29] Speaker 04:
ordinary customary outside the patent understanding of a seemingly functional term as actually applying, identifying a particular structure.

[00:04:41] Speaker 01:
Well, again, I think in the context of the patent, the patentee did reference the, using a device he called it a balance analyzer.

[00:04:51] Speaker 01:
So that, so that there's, there are references and comments made by the patentee.

[00:04:57] Speaker 01:
not adopting the concept of neutralizer in every respect, but a balance analyzer.

[00:05:03] Speaker 01:
And that the object of the patent is to use a neutralizer to determine something.

[00:05:11] Speaker 01:
So that what we're saying is use a device to determine this imbalance.

[00:05:17] Speaker 01:
I just have to call it a neutralizer.

[00:05:18] Speaker 04:
In what way is your view of what neutralizer means something other than

[00:05:27] Speaker 04:
the kind of purely functional language that would require application of 112F?

[00:05:33] Speaker 01:
Well, I believe, Your Honor, that the Patent Office itself, in considering the claim of the method patent, brought up the issue of whether or not the neutralizer, the embodiment, or the apparatus of the apparatus patent should be read into the claim one of

[00:05:56] Speaker 01:
of the method patent.

[00:05:58] Speaker 01:
And in traversing that, this is at the appendix 221, the examiner said, excuse me, patent, he said, claim one of the ward 465 patent defines a system with a neutralizer, a leveler, and a sled.

[00:06:16] Speaker 01:
As noted above, the claim of the present invention defines a method which does not include the elements of claim one of the ward 465 patent.

[00:06:30] Speaker 01:
So specifically, the patent examiner was looking at the concept of an apparatus, patent, and an apparatus that consists of various structural elements.

[00:06:43] Speaker 01:
And as the patentee said, we don't include that in to claim one of the method patent.

[00:06:50] Speaker 01:
The patent office accepted that.

[00:06:53] Speaker 01:
And I believe that that would clearly demonstrate that there is patentable subject matter

[00:06:58] Speaker 01:
even while using the term neutralizer.

[00:07:11] Speaker 01:
I think, Your Honor, court precedent is consistent that even only one preferred embodiment is, if it's disclosed in the specification, is not limiting that claim to the specific embodiment.

[00:07:29] Speaker 00:
No, sure.

[00:07:29] Speaker 00:
We've got cases that say that, and we've got cases that conclude reading the specification as a whole, including what Judge Toronto referred to a few minutes ago, is the sentence right up front in the abstract.

[00:07:41] Speaker 00:
It seems almost like a definition that leads you to conclude otherwise, particularly when there's no established plain and ordinary meaning, right?

[00:07:51] Speaker 01:
Well, as again, Your Honor, I think that in this case, the district court erred in not really taking into account the person of ordinary skill in the arts.

[00:07:58] Speaker 01:
A person with ordinary skill in the art, like the patentee, as well as the cited prior art.

[00:08:05] Speaker 01:
If you look at the cited prior art, we cite one of them in our brief, the Waters patent.

[00:08:09] Speaker 01:
You can see that persons who are attempting to determine some imbalance or some imperfection in a person's balance or gait are using devices that measure.

[00:08:24] Speaker 01:
They have to measure.

[00:08:25] Speaker 01:
A podiatrist has to measure.

[00:08:27] Speaker 01:
That's not what your patent claims.

[00:08:28] Speaker 02:
It claims specifically a neutralizer.

[00:08:30] Speaker 02:
And that neutralizer is not used in the prior art, is it?

[00:08:36] Speaker 02:
It's not in Waters, is it?

[00:08:37] Speaker 02:
No, it's not.

[00:08:38] Speaker 02:
So it's not a term that is used by skilled artisans.

[00:08:46] Speaker 02:
It's a term that was made up for your specific patent.

[00:08:49] Speaker 02:
So why shouldn't we look at the definition of your patent

[00:08:54] Speaker 02:
for what neutralizer is, even if the concept of using similar devices for balancing is out there, you've come up with a specific structure to how to do it.

[00:09:09] Speaker 01:
Well, I guess that's a point of differentiation here, Your Honor, is that the person of skill in the yard does understand that the neutralizer is not that device, that a neutralizer is simply one of any devices, measuring devices,

[00:09:23] Speaker 01:
that can render it.

[00:09:24] Speaker 02:
But your patent doesn't say use a balancing device or a measuring device or the like.

[00:09:30] Speaker 02:
It says use a neutralizer.

[00:09:32] Speaker 01:
Well, actually it says, as part of the specification, it says measure a person using a device such as a neutralizer.

[00:09:41] Speaker 02:
Well, the specification may say that, but the claims don't.

[00:09:46] Speaker 00:
You suggest that you're claiming something broader than a neutralizer?

[00:09:52] Speaker 01:
No, I'm claiming that a neutralizer is a term that is understood by those in the art to simply be a measuring device in order to determine the imbalance of the human foot such that it is can be corrected.

[00:10:05] Speaker 02:
Well, I get that, but I don't think you're answering the question.

[00:10:07] Speaker 02:
There are maybe lots of different measuring devices to balance out the foot, but neutralizer is not, at least based upon any evidence I've seen, a common term

[00:10:18] Speaker 02:
used by anybody else except this specific patent.

[00:10:23] Speaker 02:
And so when you use that specific word in the claims and then specifically define a neutralizer in the abstract to include three physical structures, why aren't you limiting yourself to a particular type of balancing device that you call a neutralizer that has those three specific structures?

[00:10:42] Speaker 01:
Again, Your Honor, I can only go back to the fact that looking at the patent as a whole

[00:10:48] Speaker 01:
Considering the context with what the inventor is trying to do, it is clear that the object of the invention is to determine a person's imbalance and correct that imbalance by recommending certain shoe insert.

[00:11:06] Speaker 01:
And to the extent that the description is balance analyzer, we're simply trying to get a neutral position that place a person in balance,

[00:11:17] Speaker 01:
that a person of skill in the art would assume.

[00:11:19] Speaker 02:
It sounds to me like you want us to read the word neutralize, neutralizer out of your claims, and replace it with something broader.

[00:11:28] Speaker 02:
But that's not what you claimed.

[00:11:30] Speaker 02:
You claimed a very specific term that has no meaning outside the context of this patent.

[00:11:37] Speaker 01:
As an engineer, Your Honor, I think that neutralize is a term that is well understood by technical people.

[00:11:42] Speaker 02:
You didn't say a device to neutralize, or you said using the neutralizer.

[00:11:48] Speaker 01:
I believe it says use of a neutralizer, using a device such as a neutralizer.

[00:11:53] Speaker 01:
Not in the claims, it doesn't.

[00:11:55] Speaker 01:
No, it doesn't in the claim.

[00:11:56] Speaker 01:
That's correct.

[00:11:56] Speaker 00:
Well, in the abstract, too, the first sentence is using a neutralizer.

[00:12:01] Speaker 00:
It doesn't suggest that you're claiming that is only an example.

[00:12:06] Speaker 00:
And so what else are you claiming beyond that?

[00:12:08] Speaker 00:
Anything that neutralizes?

[00:12:10] Speaker 01:
Yes, I think that's correct.

[00:12:11] Speaker 01:
But something that neutralizes, the pronation or supination.

[00:12:16] Speaker 01:
But that's not what you claim.

[00:12:18] Speaker 01:
Aren't you stuck with the language of your claims?

[00:12:20] Speaker 01:
I believe that the broadening language is permissible when the term is well understood in the art.

[00:12:28] Speaker 02:
But you point to no evidence whatsoever that the term neutralizer is well understood in the art.

[00:12:36] Speaker 02:
You point to the, I think, evidence that the concept of balancing to get to this role is

[00:12:45] Speaker 02:
well understood in the art, but that's not the language you claimed.

[00:12:50] Speaker 02:
It seems to me that you're trying to now recapture scope that you specifically gave up when you used the specific invented term neutralizer as opposed to the concept, which I agree may be more general, of neutralizing.

[00:13:08] Speaker 01:
Well, in the file history, there was never any issue raised with reference to the apparatus as it was

[00:13:16] Speaker 01:
understood by the patent examiner.

[00:13:18] Speaker 01:
So we never had to give up.

[00:13:22] Speaker 01:
We never had to define more specifically or overcome an objection as to what a neutralizer was.

[00:13:28] Speaker 01:
So it was really nothing to recapture.

[00:13:31] Speaker 01:
The examiner understood the neutralizer for what it was.

[00:13:36] Speaker 01:
We traversed any implication that claim one of the method patent embodied or was required that that

[00:13:45] Speaker 01:
apparatus element of the apparatus patent is read into that.

[00:13:50] Speaker 01:
And therefore, we believe that it would be proper to so limit the method claim to that specific embodiment.

[00:13:59] Speaker 00:
Why don't we hear from the other side and we serve the remainder of the panel.

[00:14:02] Speaker 00:
Thank you.

[00:14:08] Speaker 03:
Good morning, Your Honors.

[00:14:09] Speaker 03:
Daniel Bainin for the FLE.

[00:14:12] Speaker 03:
I think it's helpful to understand at a high level

[00:14:15] Speaker 03:
If you recognize what happened during the patent prosecution, when the parent application was originally filed in 2000, the applicant was seeking very broad method claims.

[00:14:27] Speaker 03:
They were flatly rejected under two separate individual references.

[00:14:32] Speaker 03:
And they tried to amend those and the examiner again rejected them, this time under a third single reference.

[00:14:38] Speaker 03:
And at that point in the parent case,

[00:14:41] Speaker 03:
The applicant did a total about face.

[00:14:44] Speaker 03:
They abandoned those broad method claims altogether.

[00:14:47] Speaker 00:
I know.

[00:14:48] Speaker 00:
I'm a little troubled by the fact that you seem to be relying on a sort of disclaimer, prosecution history disclaimer with respect to a patent other than the patent in front of us.

[00:14:58] Speaker 00:
I mean, do our cases really support your being able to do that?

[00:15:02] Speaker 03:
Well, they do under an estoppel.

[00:15:04] Speaker 03:
I don't think it's a disclaimer.

[00:15:05] Speaker 03:
I think the appellant, Profoot, is the one who has raised this whole disavowal disclaimer.

[00:15:12] Speaker 03:
We never argued that.

[00:15:13] Speaker 03:
The court down below never said that there was a disclaimer.

[00:15:17] Speaker 03:
I think that's a red herring issue.

[00:15:19] Speaker 03:
You know, a disclaimer or disavowal is a situation where a specification has both broader and narrower disclosures.

[00:15:28] Speaker 03:
And there is a disclaimer of something broad in favor of something narrow.

[00:15:32] Speaker 03:
We've never argued that.

[00:15:33] Speaker 03:
The court never argued that.

[00:15:34] Speaker 00:
No, but your reliance, I mean, there's an argument made with respect to the 465 patent as well as the 568 patent.

[00:15:40] Speaker 00:
And I'm a little troubled by that.

[00:15:42] Speaker 00:
I mean, each patent has its own property right and its own separate property right.

[00:15:48] Speaker 00:
So I don't understand why it should be compelling, even compelling, let alone required

[00:15:56] Speaker 00:
that we take what happened in the other prosecution.

[00:15:59] Speaker 03:
Fair enough.

[00:16:00] Speaker 03:
Our point is the case law is clear that when there's an estoppel in a parent or a family-related case, that estoppel can apply over to this patent.

[00:16:09] Speaker 03:
Even if you don't think it rises to the level of estoppel, the case law is clear that it's relevant to claim interpretation to understanding that history.

[00:16:18] Speaker 03:
But let's focus only on this case.

[00:16:21] Speaker 02:
Why aren't you arguing that we don't even need to look at that, since the abstract

[00:16:25] Speaker 02:
of this patent simply restates that same definition of neutralizer that you're relying on from the previous patent?

[00:16:32] Speaker 03:
Well, we do also state that, and I do agree completely with you.

[00:16:35] Speaker 03:
You don't need to go into the history of the parent case.

[00:16:41] Speaker 03:
Every place in this patent specification that makes reference to the neutralizer is in all cases, every instance, always referring to that structural device that has the housing, the protractor,

[00:16:55] Speaker 03:
and the angularly adjustable plate.

[00:16:58] Speaker 03:
There is nothing that describes it elsewhere in any other way.

[00:17:01] Speaker 03:
And although Profoot tries to refer back to this place earlier in the specification.

[00:17:09] Speaker 02:
How do you respond to your friend's argument that even though they're using this kind of made up word, that what they're really talking about is this well understood concept in the art that in order to take the measurements necessary here,

[00:17:25] Speaker 02:
They're doing something everybody understands to be a well-established method.

[00:17:30] Speaker 02:
And using the word neutralizer isn't intended to tie that down to this specific structure.

[00:17:38] Speaker 03:
Forgive me, but I have to point out that that's exactly what those original broad method claims were that were rejected in the family history.

[00:17:46] Speaker 03:
I mean, that was the whole point of that.

[00:17:49] Speaker 03:
But putting again that aside,

[00:17:51] Speaker 03:
You can't do that when there just simply isn't support in the specification for it.

[00:17:56] Speaker 03:
I mean, there's no place where the patentee says that the neutralizer is the balance analyzer.

[00:18:03] Speaker 03:
Now, council, of course, does point to this one section in column two, lines 19, but even there, that section of the spec does not equate the term neutralizer and the term balance analyzer.

[00:18:16] Speaker 03:
Moreover, council has quoted it incorrectly.

[00:18:20] Speaker 03:
because they want to put quotes around just the term balance analyzer, but that's not what it says.

[00:18:25] Speaker 03:
It says the balance analyzer and the foot level control.

[00:18:30] Speaker 03:
So even in that instance, it's referring to a structural, a hard structural feature.

[00:18:37] Speaker 03:
And if you were to take just the term balance analyzer by itself, you know, what is a balance analyzer?

[00:18:45] Speaker 03:
You can't, under the teaching of this specification,

[00:18:48] Speaker 03:
You can't do any balance analysis as an analyzer without having the person.

[00:18:55] Speaker 03:
So if you were to say that the neutralizer is a balance analyzer, well, a balance analyzer also has to include the person, because the person is the one who is, according to the teaching, the one who is doing all of this visual analysis to determine what it is.

[00:19:12] Speaker 03:
So there's still no structure.

[00:19:15] Speaker 03:
That's the point all along.

[00:19:18] Speaker 03:
It's only now for the first time that appellant is squarely challenging the idea that neutralizer was a coined term.

[00:19:26] Speaker 03:
We emphasize that repeatedly before the district court.

[00:19:30] Speaker 03:
And at no time did they ever squarely say, no, it's not a coined term.

[00:19:34] Speaker 03:
And the reason they didn't is because we begged them time and again, show us where this term has ever been used by anybody, anywhere in this field of use.

[00:19:43] Speaker 03:
And of course,

[00:19:44] Speaker 03:
It was never cited.

[00:19:46] Speaker 03:
It isn't of record because it never was.

[00:19:48] Speaker 03:
To the contrary, we cited evidence from an expert, a guy named Sundman, who is the president of a small privately held company, a company which is a prime competitor to both my client and to Plaintiff Profit.

[00:20:04] Speaker 03:
And as a competitor, he said, you know, I have been to hundreds of trade shows.

[00:20:09] Speaker 03:
I've been to thousands, talked with thousands of people in this industry.

[00:20:13] Speaker 03:
And I never, ever have heard even once anybody make reference to the term neutralizer.

[00:20:18] Speaker 03:
And that was something known before we presented that to the trial court.

[00:20:24] Speaker 04:
Can I ask you a question about 112F that I asked earlier?

[00:20:31] Speaker 04:
In this litigation or in the PTO, was any suggestion made or argument denied that

[00:20:42] Speaker 04:
neutralizer invoked 112F because it was really purely functional, which conceivably could broaden things a little bit.

[00:20:55] Speaker 04:
It would refer you to the spec and probably therefore to the abstract for the structure, but they would get equivalents of it.

[00:21:02] Speaker 03:
Well, that should have been an argument that the plaintiff would have raised in claim construction.

[00:21:08] Speaker 03:
They never made that argument.

[00:21:09] Speaker 03:
We certainly never made that argument.

[00:21:12] Speaker 03:
Your Honor's question is the first time that anybody has ever suggested that that term maybe would be susceptible to a 112 paragraph F or paragraph 6 meaning.

[00:21:24] Speaker 03:
It's never been suggested before.

[00:21:28] Speaker 03:
Even though, and I think it's consistent with Profoot's approach because

[00:21:34] Speaker 03:
They really don't want to have it connected with any kind of structure.

[00:21:38] Speaker 03:
They really want to give it a purely functional meaning, a broad analyzer type of meaning.

[00:21:45] Speaker 03:
But again, that was the claim that they tried and abandoned and was rejected and abandoned.

[00:21:50] Speaker 03:
But I'd also point out that as I read plaintiff's opening brief at page 13, you know, I think they come very close to admitting that it was a coined term.

[00:22:00] Speaker 03:
They say here, quote,

[00:22:02] Speaker 03:
Ward chose to name his device a neutralizer.

[00:22:06] Speaker 03:
And then they even go on to say that term has no inherent structural limitation.

[00:22:10] Speaker 03:
That's on page 13 of their brief.

[00:22:13] Speaker 03:
And again, this term was never used by anybody anywhere in this field of use before them.

[00:22:24] Speaker 03:
If you have other questions on neutralizer, I'll do that, but I do want to respond to counsel's point on the person of ordinary skill in the art as well.

[00:22:33] Speaker 03:
I think that is also a red herring argument because the lower court's opinion is quite clear that he recognized the proper term.

[00:22:44] Speaker 03:
He recognized that claims are to be construed in accordance with the understanding of a person of ordinary skill.

[00:22:52] Speaker 03:
Appellant Profoot has never suggested that he didn't state that test, that standard, correctly.

[00:22:59] Speaker 03:
Their argument is that somehow the law requires him to then specifically articulate what was the standard that he used.

[00:23:08] Speaker 03:
I'm unaware of any case law that says a judge commits reversible error if he doesn't expressly recite what the standard of a person of ordinary skill was.

[00:23:20] Speaker 03:
And I think it would be particularly inappropriate

[00:23:22] Speaker 03:
to do something like that in this case because both sides made very clear to the judge during oral argument that this is pretty simple technology and, you know, it really doesn't matter.

[00:23:36] Speaker 03:
We were crystal clear in our briefs on claim construction that we disagree with the definition of a person of ordinary skill.

[00:23:44] Speaker 03:
We disagree with the definition that Profoot gave

[00:23:47] Speaker 03:
But we don't think it really matters one way or another for purposes of claim construction because this technology is so simple.

[00:23:56] Speaker 00:
And I assume the first question that Judge Hughes asked your friend about neutralizer being the real focus here and sort of the main, the claim in dispute that is outcome determinative is your view too.

[00:24:09] Speaker 03:
I'm sorry?

[00:24:10] Speaker 00:
The first question Judge Hughes asked your friend was you've got two claim construction issues on appeal.

[00:24:17] Speaker 00:
and then the second.

[00:24:18] Speaker 03:
Yeah, well, I certainly agree that if the court affirms the lower court on neutralizer, that's the end of the case.

[00:24:26] Speaker 03:
I do want to just simply point out on neutral position that the arguments that counsel is making now regarding neutral position is directly contrary to the arguments they made verbally before the judge during claim construction.

[00:24:43] Speaker 03:
And for the record, I'll cite you to

[00:24:47] Speaker 03:
to appendix page x 464 and 467, 468.

[00:24:54] Speaker 03:
At that point in time, counsel squarely said that, you know, when we're talking about neutral position, we're talking about subteller neutral, where there's essentially no supination, no pronation.

[00:25:06] Speaker 04:
Essentially no?

[00:25:07] Speaker 04:
Well, no.

[00:25:09] Speaker 04:
One of the arguments that they make against the neutral position construction is that it is

[00:25:16] Speaker 04:
too rigorously tied to something like zero off-center?

[00:25:23] Speaker 03:
Well, specifically, what the pro foot council said at page x 464 was, but what we try to do is get you into a position that's as close to neutral, which in the patent definition, which we'll get to in a moment, would be subtler neutral, where everything is in alignment.

[00:25:41] Speaker 03:
And then over at pages 467, 468 of the appendices says,

[00:25:45] Speaker 03:
And subtler neutral, which is mentioned in the ward patent, is a biomechanical position that's neither pronated nor supinated.

[00:25:53] Speaker 03:
In other words, neither rocked towards the center of the body nor rocked towards the outside.

[00:26:00] Speaker 04:
But is the claim construction that the district court adopted, what's the language?

[00:26:04] Speaker 04:
No pronation or lack of pronation?

[00:26:08] Speaker 04:
Or is that a little bit too restrictive?

[00:26:16] Speaker 03:
If the word no, I never understood for a moment that the court's definition somehow precluded pronation like plus or minus 2 degrees, which, of course, is what council, Profoot's council, cites to in the patent specification.

[00:26:35] Speaker 03:
It says clearly the goal is to get to zero, you know, perfectly neutral.

[00:26:43] Speaker 03:
But it is true that the specification says, and I don't remember the exact phrasing, but it allows for like a plus or minus two degree variation, two degrees out of 360 degrees.

[00:26:57] Speaker 04:
And your view is that the claim construction the district court adopted encompasses that amount of legal room?

[00:27:03] Speaker 03:
It never occurred to me to the contrary.

[00:27:05] Speaker 03:
Yes, I believe it does encompass that.

[00:27:10] Speaker 03:
I'm happy to answer any other questions you have or not.

[00:27:13] Speaker 03:
Thank you.

[00:27:14] Speaker 00:
Thank you very much.

[00:27:29] Speaker 01:
Briefly, Your Honors, I believe it's quite correct that a neutralizer is a functional element.

[00:27:38] Speaker 01:
It performs the function of measuring

[00:27:43] Speaker 01:
the person's balance.

[00:27:46] Speaker 01:
Being that there's no clear express unequivocal disavowal, I think it's error to limit the claim to the preferred embodiment that's described in the specification.

[00:27:59] Speaker 01:
In fact, I think it's even worse that he took portions of the apparatus patent claim and then read that into the claim construction.

[00:28:11] Speaker 01:
The reference, I believe, to show that the neutralizer is functional, at column three of the patent, first line, it says, the present invention includes a number of components such as a foot neutralizer.

[00:28:31] Speaker 01:
Mr. Bain brought up the issue of the term neutralizer not being used anywhere in the release they could find as a term

[00:28:41] Speaker 01:
of art, if you will.

[00:28:43] Speaker 00:
Can I go back to what you said 30 seconds ago?

[00:28:46] Speaker 00:
Column 3 says the President's intervention includes a number of components, such as a foot neutralizer, as shown in Figure 1, a leveler, a footbed, as shown in Figure 5, and whatever.

[00:28:57] Speaker 00:
So you're suggesting that that means that a neutralizer can be something other than what the District Court construed it as?

[00:29:05] Speaker 01:
Correct.

[00:29:07] Speaker 01:
Yes.

[00:29:08] Speaker 00:
Because persons of skill and the art understand it.

[00:29:10] Speaker 00:
The next sentence that follows what you just read says neutralizer includes a housing protractor and angular adjustable plate.

[00:29:19] Speaker 01:
As the preferred embodiment.

[00:29:22] Speaker 01:
That's the preferred embodiment.

[00:29:24] Speaker 01:
It's being described.

[00:29:25] Speaker 01:
It's the only preferred embodiment that needed to be described.

[00:29:29] Speaker 01:
We only had to show a preferred embodiment.

[00:29:31] Speaker 01:
The law is clear.

[00:29:33] Speaker 01:
List all of the different devices that that can be used to measure your person's pronation or supination it's it's those of skill in the art understand it to be measurement and the person that mr. Bainin quoted himself from the prior excuse me the competitor in this field that am fit as counsel Mike co-counsel said at the claim construction hearing mr. Sundeman was asked whether he understood what

[00:30:03] Speaker 01:
neutralizer meant what he was referring to in his patent because he had the patent in front of him, he said yes.

[00:30:10] Speaker 01:
He understood that it was a measuring device, something to use to form the function of trying to determine the person's neutral position.

[00:30:19] Speaker 00:
Thank you.