[00:00:19] Speaker 01:
Our next case is Red Dog Mobile Shelters versus Cat Industries, 16-1370.

[00:00:36] Speaker 01:
Mr. Smith, you reserved seven minutes of time for rebuttal.

[00:00:41] Speaker 01:
Okay.

[00:00:41] Speaker 01:
Council ready?

[00:00:42] Speaker 01:
You may proceed.

[00:00:51] Speaker 03:
May it please the court.

[00:00:53] Speaker 03:
Your honors, we're here today appealing the district court's granting of a motion for summary judgment of non-imprisonment against my client.

[00:01:02] Speaker 03:
There were three primary plaintiff's instruction terms that were issued on that that I'll group into three for discussion purposes.

[00:01:10] Speaker 03:
The first was claims that were directed to multiple rails that support, multiple rails are elongate members that support the protective sheltering

[00:01:21] Speaker 03:
The second group of claims had to do with whether those rails also elevated a floor in claim 60.

[00:01:29] Speaker 03:
And the third group had to do with whether the red dog, I mean the cat shelter had ballast beneath the floor or beneath the first or second deck as required by claim 60 and a half.

[00:01:41] Speaker 04:
So the last two are just about one claim.

[00:01:43] Speaker 03:
The last two only relate to claim 60, that is correct.

[00:01:47] Speaker 03:
And a review of the district court's opinion makes it very clear that

[00:01:51] Speaker 03:
Appellings are correct.

[00:01:55] Speaker 03:
The analysis in a summary judgment in a non-infringement case is first to do the proper claim construction and then second to apply that claim construction to the accused device.

[00:02:06] Speaker 03:
A review of the district court's order makes it clear that their basis for summary judgment was on the latter half of that.

[00:02:13] Speaker 03:
We know that because in each instance, what's being compared is the accused device, the cap shelter, and whether or not the claim elements are present in that cap shelter.

[00:02:23] Speaker 03:
There's nothing in the district court's opinion that suggests that any of the claims were ambiguous or unclear.

[00:02:28] Speaker 03:
There's nothing in the court's opinion that suggests that there's anything in the specification that limits the scope or disavows the scope of their claim.

[00:02:36] Speaker 03:
The court's sole analysis is in weighing whether or not the expert's testimony with respect to the presence of those limitations in the cap shelter is sufficient.

[00:02:47] Speaker 03:
The court in that analysis improperly weighed credibility, improperly weighed the evidence.

[00:02:53] Speaker 04:
Well, put aside the use of the word

[00:02:57] Speaker 04:
credibility, which does sound like something is not done on summary judgment.

[00:03:04] Speaker 04:
But I suppose one read the district court's decision to be saying, your only evidence as to support is evidence about some kind of support that

[00:03:22] Speaker 04:
in any common sense way is not the kind that this patent is talking about.

[00:03:27] Speaker 04:
This kind is talking about support from underneath.

[00:03:32] Speaker 04:
And you don't even have evidence of that.

[00:03:35] Speaker 03:
Right.

[00:03:35] Speaker 03:
Well, Your Honor, I would point to a couple things.

[00:03:37] Speaker 03:
First, if the court were to have done that, they would run afoul of claim construction because the claims define the rails in the claim of the 001 patent as being a component part of the shelter

[00:03:52] Speaker 03:
So since those realms in the 001 patent are supporting it on the substrate, there can't, by definition, be anything beneath it.

[00:04:00] Speaker 01:
Well, I thought most of the summary judgment case turned on construction of the word support.

[00:04:06] Speaker 01:
And the court said that support here as a person with ordinary skill in the art would see it and not the various mathematical axioms.

[00:04:22] Speaker 01:
That, like Newton's law and Hooke's law, that your expert was advocating.

[00:04:30] Speaker 03:
Your Honor, but then again, you still, even before you consider any extrinsic evidence, like the testimony from the experts, you have to look at the claim language itself.

[00:04:38] Speaker 03:
And the clear, unambiguous claim language makes a rail the component part of the shelter.

[00:04:45] Speaker 03:
And because a rail is a component part of the shelter that supports the shelter on a substrate, by definition, there cannot be anything underneath it.

[00:04:52] Speaker 03:
The other thing that I would point the court to with respect to this support argument is that the court makes clear how it's defining support by use of the analogy that it provides.

[00:05:01] Speaker 03:
And the analogy it provides is a table top can't be seen to support the table legs.

[00:05:07] Speaker 03:
There's only one problem with that analogy.

[00:05:10] Speaker 01:
No, it says that use analogy to say support.

[00:05:13] Speaker 01:
When you look at the legs of a table, it's evident that the legs support the table top.

[00:05:18] Speaker 01:
Your argument is that the table top support the legs, and therefore the support is circular.

[00:05:25] Speaker 03:
I would respectfully disagree with that, Your Honor.

[00:05:29] Speaker 03:
It was a misnomer in the Court's opinion, and maybe wasn't as clear in the briefs as it should have been.

[00:05:34] Speaker 03:
The District Court clearly found that there may be a fact question with respect to the definition of rails, and whether or not the rails, as Mr. Pertle defined them, were rails within the meaning of the patent.

[00:05:46] Speaker 03:
And Mr. Pertle very clearly defines rails

[00:05:49] Speaker 03:
to be the combination of a vertical plate, a floor plate, and an angle plate all coupled together to function as a rail.

[00:05:57] Speaker 03:
So Mr. Pertle, in his definition of rail, which the court acknowledged a fact question about, has the bottom component of the rail being the floor plate in contact with the substrate?

[00:06:09] Speaker 03:
And in his declaration, he clearly states that the rail, as I have defined it, is in contact with the substrate.

[00:06:16] Speaker 03:
Thus, the proper analogy for the court to have made is not whether a tabletop supports the table legs, it's whether the table, once you couple the tabletop to the table legs, whether that table supports what you put on it.

[00:06:31] Speaker 03:
You've already assumed the definition of rail.

[00:06:34] Speaker 03:
The court used only a definition of rail that presupposes there's something underneath the rail.

[00:06:41] Speaker 03:
Mr. Pertle never testified

[00:06:43] Speaker 03:
that there was anything underneath the rail, he very clearly, plainly, and ambiguously testified that the rail was made up of three component parts, the foreplate, the vertical plate, and the angle plate.

[00:06:54] Speaker 03:
And importantly, Your Honor, something I would point out to you is, if Kat wanted to controvert that evidence, if Kat wanted to show that's not correct, given his definition of rail, and given the fact that the court hadn't construed rail to have any specific meaning,

[00:07:10] Speaker 03:
Mr. States would have provided a declaration that said how Mr. Pertle has defined rail cannot be a rail.

[00:07:17] Speaker 03:
He didn't do that.

[00:07:19] Speaker 04:
Can I take you back and ask you to first open together a picture if there is one of the accused's product and then walk me through

[00:07:35] Speaker 04:
What the accused rails are and how it's doing the supporting required.

[00:07:44] Speaker 04:
It would help me to be looking at something.

[00:07:48] Speaker 04:
The words start to blur.

[00:07:50] Speaker 03:
I would start with A298.

[00:08:01] Speaker 04:
A298?

[00:08:02] Speaker 03:
Appendix 298.

[00:08:04] Speaker 03:
Sorry.

[00:08:04] Speaker 04:
Oh, there's two drawings on here.

[00:08:06] Speaker 03:
Correct.

[00:08:06] Speaker 03:
In the bottom drawing, you see justified in red, designated rail in red, how Mr. Pertle has defined the rail, showing that it clearly includes the foreplay.

[00:08:17] Speaker 03:
And then in the illustration where he has the yellow, he has the person in plate seven that transfers the rail, the load of the rail in yellow, which he has shown as being out, and then they go into the foreplay.

[00:08:33] Speaker 04:
I'm sorry, you're using colors and the appendix doesn't have colors.

[00:08:39] Speaker 03:
It's also in Mr. Ferdows and Ford, in his declaration.

[00:08:44] Speaker 04:
Is this what's on page 13 of your brief, which is colorful?

[00:08:48] Speaker 03:
Is it this?

[00:08:52] Speaker 03:
That needs to be incorrect.

[00:08:57] Speaker 03:
And the district court recognized there was a fact question with respect to rail.

[00:09:01] Speaker 03:
That rail is clearly in contact with the substream.

[00:09:04] Speaker 03:
So when Mr. Skates is talking about support, in every instance, he says the rail is pushing down on the floorplate.

[00:09:16] Speaker 03:
He never acknowledges that Mr. Partle has defined the entire thickness of the outer portion of that floorplate to be a component part of the rail.

[00:09:27] Speaker 03:
And this is important, and it does have to do with Hooke's Law.

[00:09:30] Speaker 03:
Your Honor, Hooke's Law is a recognized, universally accepted law of engineering.

[00:09:35] Speaker 03:
And what Mr. Pearl testified to was, Hooke's Law stands for the proposition that the stiffer an element is, the more load that element supports.

[00:09:44] Speaker 03:
And in this system, in calculations he provided,

[00:09:47] Speaker 03:
It showed that the rail portion, the red portion of that, and if you look at section AA, you'll see the rails are on the two outside portions, and the remainder of the foreplate is what's in between the two rails.

[00:10:00] Speaker 01:
You're into your rebuttal time.

[00:10:02] Speaker 01:
You can go on if you want.

[00:10:03] Speaker 01:
I'll go on slowly for you.

[00:10:04] Speaker 03:
OK.

[00:10:04] Speaker 03:
And so what he testified to was that Hooke's Law says, the stiffer an element is, the more load it supports.

[00:10:12] Speaker 03:
And then he provided calculations that show those two rails as he has defined them,

[00:10:16] Speaker 03:
carries 75 times stiffer than the portion of the floor plate between the rails.

[00:10:23] Speaker 03:
And so that more than 75 times the load that is placed upon that shelter is carried by those two component part rails that are on the outside of the shelter.

[00:10:34] Speaker 04:
And the shelter in this drawing is what?

[00:10:37] Speaker 03:
You can see, let me turn to page 13.

[00:10:43] Speaker 03:
I think in that drawing, Your Honor, it doesn't have the enclosure that is on top.

[00:10:47] Speaker 03:
I think you're just seeing the skid there as opposed to having the enclosure on top.

[00:10:51] Speaker 03:
If you look back at A298, the top and bottom drawing there show the enclosure on top of it.

[00:11:01] Speaker 03:
The rail is the complete component part.

[00:11:04] Speaker 03:
I mean, excuse me, the protective shelter is all of those elements, the wall, the ceiling,

[00:11:10] Speaker 03:
rails, the decks on either side are all component parts of the protective shelter as defined by the claims and by the specification.

[00:11:23] Speaker 03:
Is there other questions?

[00:11:24] Speaker 01:
The court said that they didn't dispute with Newton's law and with Hooke's law, or maybe even the application of the expert of those laws.

[00:11:36] Speaker 01:
But it just went back looking at the claims and at the patent, and it disagreed with your expert.

[00:11:43] Speaker 01:
The court disagreed with your expert conclusion that this created a support for the shelter.

[00:11:49] Speaker 01:
And I'm looking now at A11.

[00:11:51] Speaker 01:
It says, and finds that a person of ordinary skill in the art would have the same disagreement.

[00:11:56] Speaker 01:
As using the patent terminology, this is not what support is referring to.

[00:12:03] Speaker 03:
Right, there's nothing, I would note the court makes no reference to anything in the specification as not being what it's referring to.

[00:12:11] Speaker 01:
No, it's referring to your expert's testimony and the... Right.

[00:12:15] Speaker 03:
But it's saying that there's nothing, it's saying that's not what the patent is referring to when it says support.

[00:12:21] Speaker 03:
But it points to nothing in the specification and nothing in the claim language that would support or buttress the court's interpretation of that language to mean

[00:12:31] Speaker 03:
that it has to be from underneath, or it wasn't consistent with what my expert testified to.

[00:12:36] Speaker 03:
And in fact, in his expert report, and I'll have this site when I come back up in my rebuttal, but my expert specifically testifies about how that shell, the rail, supports the load of the shelter weight and wind overturning moment.

[00:12:57] Speaker 03:
And that

[00:12:58] Speaker 03:
that is what's talking about support.

[00:13:00] Speaker 03:
So when the court says holds up, when my expert says support in structural engineering means to oppose forces moving it in a direction, when this shelter is sitting on the ground, the only force moving on it is the weight of the protective shelter moving against the ground.

[00:13:17] Speaker 03:
So the only thing opposing that force is the rails and the

[00:13:22] Speaker 03:
were played in between, but the rails are carrying 75% of that load.

[00:13:27] Speaker 03:
That's what's providing the support, as shown by Hooke's law and as shown straightforward in his testimony.

[00:13:34] Speaker 03:
And the court offers no basis for contradicting that.

[00:13:37] Speaker 03:
And once again, when you're looking at the accused product, which that's an analysis of, not the rails in the protective shelter, that's an analysis of the accused product.

[00:13:46] Speaker 03:
And once you're doing the accused product, it's a de novo review, and every inference has to be construed in favor of the evidence that was presented.

[00:13:54] Speaker 03:
I'll reserve this.

[00:13:55] Speaker 01:
All right.

[00:13:55] Speaker 01:
Thank you.

[00:14:01] Speaker 01:
Mr. Cooper?

[00:14:02] Speaker 02:
Yes, Your Honor.

[00:14:05] Speaker 02:
The design

[00:14:06] Speaker 02:
of the cat structure is very, very simple.

[00:14:12] Speaker 02:
It is a plate of metal.

[00:14:14] Speaker 02:
A circular cylinder is welded into the middle.

[00:14:17] Speaker 02:
And what he calls rails, these are basically walls along the side for the filling company.

[00:14:23] Speaker 02:
That, in essence, is the design of the cat structure.

[00:14:28] Speaker 04:
Do the rails touch the cylinder?

[00:14:31] Speaker 02:
No.

[00:14:31] Speaker 02:
They go along the side.

[00:14:33] Speaker 02:
The cylinder, actually, if you look on the page,

[00:14:36] Speaker 02:
A 296, there's one at the top, it actually goes out, the cylinder goes out to the very edge of the plate, hopefully.

[00:14:48] Speaker 02:
And so it comes up, it will come up, Jones-Toronto, and actually they will touch it.

[00:14:53] Speaker 02:
But it sits there independent of the rails.

[00:14:57] Speaker 02:
The rails are there because you're pouring the concrete in as a ballast.

[00:15:01] Speaker 02:
It's sort of like a cake pan.

[00:15:04] Speaker 02:
If you didn't have sides on your cake pan, you poured your batter in, it would spill out everywhere.

[00:15:09] Speaker 02:
That is what the side walls on this.

[00:15:13] Speaker 02:
Now, they're saying, well, these are really rare.

[00:15:15] Speaker 04:
Their product has... The district court didn't conclude, did it, that the things accused of being rails are not rails?

[00:15:29] Speaker 04:
For example, walls, side walls.

[00:15:32] Speaker 04:
Right.

[00:15:34] Speaker 04:
To find non-infringement as a matter of summary judgment, the district court had to say, here is a claim element that cannot, as a matter of law, be found in the accused product.

[00:15:43] Speaker 04:
It didn't find the absence of rails, right?

[00:15:46] Speaker 02:
The court did not.

[00:15:47] Speaker 02:
The court said there may be a fact issue as to rails, but he never got there because it didn't... So he said, all right, I'm going to assume they're rails, but the rails don't support.

[00:15:55] Speaker 04:
They don't support?

[00:15:56] Speaker 04:
Now, what don't they support?

[00:16:00] Speaker 02:
product has rails underneath there that actually lift the platform off the ground because they have some theory regarding aerodynamics that when there's a tornado, the wind will come underneath and come up through a hole in the middle and that will somehow, through aerodynamic forces, force their product down to the ground.

[00:16:21] Speaker 02:
And so they actually have elongated rails running the length of their floor to support it, to hold it up off the ground.

[00:16:30] Speaker 02:
was done in this case, there were two experts.

[00:16:33] Speaker 02:
Skates was ours, Colonel was theirs.

[00:16:36] Speaker 02:
And one of the things the trial court did was what would an ordinary person steal from the crowd in perfect support to me?

[00:16:44] Speaker 02:
Because theirs is, these rails basically sit on the ground, well basically ours sits on the ground and the rails or the walls sit on the product.

[00:16:56] Speaker 02:
And the court said that was not support because it was

[00:17:00] Speaker 02:
then everything would be support, it would have no meaning, and he must interpret the pattern and the language in the pattern as having a meaning.

[00:17:13] Speaker 04:
I will confess I don't really understand this.

[00:17:17] Speaker 04:
But they make some attempt to say the rails are performing some kind of rigidity strengthening function and the more rigid the thing is that has been strengthened, the more

[00:17:34] Speaker 04:
support will occur, and so maybe by two steps.

[00:17:38] Speaker 02:
That was addressed by Mr. Skates.

[00:17:40] Speaker 04:
Can you explain it in terms I might hope to understand?

[00:17:43] Speaker 02:
What they're trying to say is that if we welded these side walls and welded the wells, it made the plate stiffer.

[00:17:50] Speaker 02:
The bottom plate, the bottom floor stiffer.

[00:17:52] Speaker 04:
On which your cylinder sits.

[00:17:54] Speaker 02:
On which the cylinder sits.

[00:17:56] Speaker 02:
But we had Skates affidavit who said, look, there is a difference between reinforcement

[00:18:03] Speaker 02:
and support.

[00:18:04] Speaker 02:
Support, according to the common, understood term, is to lift up.

[00:18:09] Speaker 02:
Reinforce is a different concept.

[00:18:12] Speaker 02:
It is to stiffen or whatever, and while their expert may have some argument that it stiffens and reinforces, it doesn't support, it doesn't hold up the cylinder and the floor in this particular case.

[00:18:28] Speaker 04:
Since we don't have a dispute about science between the experts, we have at most a dispute about meaning.

[00:18:42] Speaker 04:
And it seems to me if we're talking about the meaning of the word support outside the context of the patent, it can have any number of different meanings.

[00:18:51] Speaker 04:
So we have to be talking about meaning in the context of the patent.

[00:18:55] Speaker 04:
So what is it in this patent that makes it clear?

[00:18:59] Speaker 04:
And I'm not sure that this is actually a factual question, because it's intra-patent coherence interpretation, which we have said is not, and the Supreme Court has said, is not a factual question.

[00:19:09] Speaker 04:
What aspect of the patent

[00:19:12] Speaker 04:
says what we mean in the patent, or indicates, what we mean in the patent by support is hold up in the kind of sense you were talking about.

[00:19:24] Speaker 04:
Hold up from the bottom.

[00:19:26] Speaker 02:
It's intrinsic in the patent.

[00:19:28] Speaker 02:
I'm not sure there's anything there.

[00:19:29] Speaker 02:
I think the court didn't look to the best of us to see why someone skilled in this area at the time of the invention would have it attributed to me.

[00:19:39] Speaker 01:
Well, the claims do use the word elevate.

[00:19:41] Speaker 02:
Claim 60 uses Elevate, 44, 89, 94, I think, do not use the term Elevate.

[00:19:47] Speaker 04:
But they do use the term Elevate, which... I thought it's just Claim 60 that uses the term Elevate.

[00:19:54] Speaker 04:
And we've got... I thought I said that... Yeah, right, right.

[00:19:57] Speaker 04:
But that's only one claim.

[00:19:58] Speaker 04:
Support is the word that you need for the other, I don't know, 15 claims or something.

[00:20:02] Speaker 02:
Support is to all the claims Elevate and Ballast with respect to Claim 60.

[00:20:08] Speaker 02:
That is correct.

[00:20:09] Speaker 04:
So what is it in the patent that indicates that you just have to understand support here to mean... How do you finish the sentence?

[00:20:17] Speaker 04:
Support to mean what?

[00:20:19] Speaker 04:
To hold up, to lift up.

[00:20:21] Speaker 04:
Scaffolding would hold up a facade that you want to preserve when you've taken out the rest of the building and you want to build something behind it.

[00:20:33] Speaker 04:
And you have scaffolding and it's not underneath.

[00:20:36] Speaker 04:
scaffolding will be on the side.

[00:20:38] Speaker 04:
It's supporting the facade.

[00:20:41] Speaker 02:
Well, I guess in certain circumstances.

[00:20:44] Speaker 04:
Right, that's one perfectly ordinary meaning.

[00:20:46] Speaker 04:
Of course it's supporting it.

[00:20:49] Speaker 02:
It would hold up the building from falling over, sort of like flying buttresses at the Notre Dame Cathedral.

[00:20:54] Speaker 02:
We have them coming up from the ground.

[00:20:56] Speaker 02:
They hold up the walls.

[00:20:57] Speaker 04:
Right, and they're not underneath.

[00:20:59] Speaker 02:
They're not underneath, but they hold up.

[00:21:01] Speaker 02:
They support the walls.

[00:21:03] Speaker 02:
They hold it up.

[00:21:06] Speaker 02:
And so what the dictionary definition said in this case, what Skate said in this case, what the court found in trying to determine the credibility between the two experts was that if you use their expert, anything that has fitness would provide support.

[00:21:23] Speaker 02:
And you would render under Hurdle's definition, the term support could be anything.

[00:21:30] Speaker 02:
Anything that has thickness, that has weight or whatever would

[00:21:34] Speaker 02:
theoretically be support and it would have no meaning and the court said in order to interpret the patent it must have some meaning and decided that the credibility was with Mr. Skates and it was not

[00:21:49] Speaker 02:
Now, counsel argues, well, can the court determine credibility?

[00:21:54] Speaker 02:
Yes, the court can determine credibility.

[00:21:57] Speaker 02:
When it's determining one, a person in a similar art would have an interpreter to be.

[00:22:02] Speaker 02:
The court did that in the Tiva case.

[00:22:04] Speaker 02:
There were two experts.

[00:22:05] Speaker 02:
The court selected one over the other in the construction of the patent.

[00:22:10] Speaker 02:
This court dealt with it on remit.

[00:22:13] Speaker 02:
When you have that, contrary to what counsel says, when you're looking at factual issues,

[00:22:19] Speaker 02:
That is what a person of average skill in the art would apply the patent at the time of the invention.

[00:22:26] Speaker 02:
That is a fact issue.

[00:22:28] Speaker 02:
That is something the trial court can make a decision on.

[00:22:32] Speaker 02:
And the review by this court, as the Supreme Court has said and as this court held on remand, is not the no vote.

[00:22:38] Speaker 02:
Rather, it is clearly erroneous or clear error.

[00:22:42] Speaker 02:
And the question is, when the trial court in its place said, I find

[00:22:48] Speaker 02:
that Mr. Pirtle's interpretation would render the term, in this case, support meaningless, and I'm going to adopt the term and the definition that was given by Mr. Skates, you know, is it clearly erroneous, is it clear error in that factual determination?

[00:23:09] Speaker 02:
And if it's not, and we don't believe in this, then Judge Kincaid is entitled to have his factual determination upheld.

[00:23:18] Speaker 02:
And we believe that if you look at the briefing, if you look at the drawings, their definition given by Mr. Kertel makes absolutely no sense.

[00:23:31] Speaker 02:
He had the same problem with the term ballast.

[00:23:34] Speaker 02:
He said, for example, on ballast, that only the top micron of the floor is the floor, and that since the floor has thickness, the thickness is the ballast.

[00:23:46] Speaker 02:
And again,

[00:23:47] Speaker 02:
Our expert, Judge Kincaid, said, well, under this definition, anything that adds away the cylinder, the top, the door, all of that, theoretically, would be ballast.

[00:23:58] Speaker 02:
And you're rendering the term meaningless.

[00:24:01] Speaker 04:
Right.

[00:24:01] Speaker 04:
So, but that, I mean, it seemed to me on the term ballast.

[00:24:04] Speaker 04:
that they had at least one theory under which it's admittedly hard to see how it could never be false.

[00:24:16] Speaker 04:
But it seems to me they also have a narrower theory, which is in the accused product, weight has been added to the material making up the floor for some purpose, like giving it weight.

[00:24:30] Speaker 04:
different from allowing it to serve the function that floors serve, namely having stuff on them without the stuff falling through?

[00:24:38] Speaker 02:
Correct.

[00:24:39] Speaker 02:
The floor that it served before was a functional floor.

[00:24:44] Speaker 04:
So the additional weight, it seems to me, could be viewed as ballast without making the term meaningless.

[00:24:53] Speaker 02:
additional, every weight that as the court talked about, trough work, would be balanced.

[00:24:58] Speaker 04:
And the question is, let's assume... No, only, only, I'm sorry, only weight unnecessary to the purpose of allowing the plank to serve as a floor.

[00:25:09] Speaker 02:
Well, then let's assume that instead of using steel, which they use in this case, they could have used aluminum, which is lighter.

[00:25:17] Speaker 02:
And then the question is the fact, let's say it was still at three-eighths inch

[00:25:21] Speaker 02:
floor, the fact that they used a material that was heavier than other materials that are out there, which is the case, does that make it ballast as well?

[00:25:31] Speaker 02:
And again, I think the court looked at this, the court looked at their definition of ballast and concluded that basically anything, including the top of the cylinder, the doors, the hand towels, even in the cylinder, could be ballast under Mr. Hurdle's definition.

[00:25:51] Speaker 02:
And, you know, the court never got to the issue of the fact that the ballast must be beneath the floor.

[00:25:57] Speaker 02:
In our case, as described earlier, there was a plate and there was these side walls and the ballast, the concrete, was poured on top.

[00:26:05] Speaker 02:
Under theirs, they had places underneath the floor where you could add ballast if there was a need to add ballast.

[00:26:15] Speaker 02:
Again, the court never got to the issue of the location of the ballast because the court concluded that

[00:26:21] Speaker 02:
the concrete.

[00:26:23] Speaker 02:
The other items, such as the floor or whatever, were not balanced.

[00:26:27] Speaker 02:
I mean, we know, going back in the early 1800s, ships, when they come across with their products, and they go back in and put ballast in to keep it stable.

[00:26:35] Speaker 02:
They put rocks in there, and we see along a lot of coastal towns, there's a lot of rocks, which used to be balanced.

[00:26:41] Speaker 02:
Now the question is, okay, if we made a ship with thicker timbers or whatever, would the thickness of the timbers be balanced?

[00:26:47] Speaker 02:
You know, ballasts were there to provide extra weight and serve no other purpose.

[00:26:52] Speaker 02:
but to add extra weight to the particular ship.

[00:26:56] Speaker 02:
And I think that is true with respect to the case at hand.

[00:27:03] Speaker 02:
We believe under the applicable standards set forth by the Supreme Court and by this Court in Tito, this was inherently a factual issue for the trials

[00:27:15] Speaker 01:
Construction of the patent is a question of law.

[00:27:18] Speaker 01:
If it's a factual issue for the trial judge, what do you mean?

[00:27:23] Speaker 01:
He decided this is a summary judgment.

[00:27:25] Speaker 01:
Are you telling me that the judge considered two sides of an argument of facts?

[00:27:31] Speaker 02:
Under Tiva, under the construction of the patent, the question of the meaning that a person of the ordinary skill would have can be... Is that a factual issue under patent law?

[00:27:45] Speaker 02:
Well, in the Tifa case, the court said it could be an issue of fact, a subsidiary issue of fact.

[00:27:51] Speaker 01:
In this case, the judge decided the case on his evaluation of what one with ordinary skill in the art would view as support.

[00:28:02] Speaker 01:
And then he found the plaintiff's expert testimony not to be credible because of that.

[00:28:08] Speaker 01:
Isn't that just automatically, you're putting issues of fact in controversy?

[00:28:14] Speaker 02:
Absolutely not.

[00:28:15] Speaker 01:
Why shouldn't a jury have decided this?

[00:28:17] Speaker 02:
Because it is up to the trial court to construe the patents what the terms need.

[00:28:22] Speaker 02:
And we have the experts come in to assist and provide underpinnings background to the court.

[00:28:28] Speaker 02:
And in the TIVA case, we had the same thing.

[00:28:30] Speaker 02:
We had two experts.

[00:28:31] Speaker 02:
The court discredited one, I'll leave the other.

[00:28:34] Speaker 02:
And on the original bill, the question was, did this court review the

[00:28:40] Speaker 02:
decision of the trial court to credit one and discredit the other under the correct standard, which was the clear understanding.

[00:28:49] Speaker 01:
I'll be a little forthright.

[00:28:51] Speaker 01:
I came in here thinking more strongly about your position, and you've kind of weakened it through your oral argument.

[00:29:00] Speaker 01:
You're almost now showing that the court

[00:29:08] Speaker 01:
disregarded that there's a genuine issue of material fact in dispute.

[00:29:14] Speaker 02:
This is this court's decision in the Tiva case.

[00:29:18] Speaker 02:
The reviewing court, Alvarez, should review subsidiary factual findings under the clearly erroneous standard.

[00:29:25] Speaker 02:
The court explained that when the district court reviews only evidence intrinsic to the patent, it's a question of law.

[00:29:30] Speaker 02:
If the district court needs to consult extrinsic evidence, for example, to understand the meaning of the patent.

[00:29:38] Speaker 01:
This is not a case involving, at this point, the point of our discussion, claim construction.

[00:29:44] Speaker 01:
It's summary judgment.

[00:29:46] Speaker 02:
But the question is, if the court has to construe the determinant of the patent first, then the question is, okay, is there a fact issue, once you've construed the patent, that would raise an issue?

[00:29:56] Speaker 02:
When you construed the patent the way that he did in our client's favor, there was no fact issue except the evidence.

[00:30:03] Speaker 01:
But he saw it say differently.

[00:30:05] Speaker 02:
But it was based upon an incorrect construction of the patent.

[00:30:10] Speaker 02:
If that were true, all you'd have to have is two experts, and you would never have a summary judgment in a PEP case because you can always get someone to advocate a contrary construction.

[00:30:21] Speaker 01:
Do you have a closing thought?

[00:30:23] Speaker 01:
You're out of time.

[00:30:24] Speaker 02:
I'm out of time.

[00:30:26] Speaker 02:
We believe in the space of 12-4.

[00:30:30] Speaker 02:
did what he was supposed to do.

[00:30:33] Speaker 02:
He had a basis for what he did, and a clear error standard, as this court has articulated in TIBA, his ruling was not approved.

[00:30:43] Speaker 01:
Okay, thank you.

[00:30:51] Speaker 03:
Hey, Police Court.

[00:30:52] Speaker 03:
This is Toronto.

[00:30:54] Speaker 03:
You mentioned scaffolding.

[00:30:55] Speaker 03:
The other thing that I would point out, being in California, in honor of the court being out here,

[00:30:59] Speaker 03:
A little bit north of here, there's a bridge over a bay that's held by suspension cables from above.

[00:31:07] Speaker 03:
No structural engineer would contest that that bridge is supported by those cables which are above it.

[00:31:14] Speaker 03:
To read into this claim a requirement that the support comes from beneath is completely unjustified by the clear language of the claim terms.

[00:31:23] Speaker 04:
Can you make an attempt, one more attempt, by looking at the picture, and if this is the picture,

[00:31:29] Speaker 04:
on page 13 of your brief or 298 or some better picture of the accused product and walk through in common sense terms what your theory is of why the rails support

[00:31:46] Speaker 04:
the shelter.

[00:31:47] Speaker 03:
All right.

[00:31:47] Speaker 03:
Your honor, if I can cheat a little bit, I would refer you to... It depends what kind of cheating you have in mind.

[00:31:52] Speaker 03:
Appendix A276 for our experts.

[00:31:55] Speaker 04:
276.

[00:31:56] Speaker 04:
Does it have a picture?

[00:31:58] Speaker 03:
It does not have a picture.

[00:31:59] Speaker 04:
You got to do it with the picture.

[00:32:02] Speaker 03:
Sorry.

[00:32:02] Speaker 03:
It explains the picture.

[00:32:04] Speaker 03:
You use the words, I'll look at the picture.

[00:32:06] Speaker 03:
What he is saying is, the bottom floor plate is in contact with the ground.

[00:32:12] Speaker 04:
I'm with you.

[00:32:13] Speaker 03:
All right, the weight of the shelter is pushing down.

[00:32:17] Speaker 03:
The weight of the earth pushes against that.

[00:32:19] Speaker 03:
In engineering terms and structure, there is no orientation.

[00:32:23] Speaker 03:
I mean, the earth pushes against you, you push against the earth.

[00:32:26] Speaker 03:
That's what Newton's third law is.

[00:32:28] Speaker 03:
There's no dispute that's what Newton's third law is.

[00:32:31] Speaker 03:
And I would take a little issue with there being no dispute of science in this case.

[00:32:34] Speaker 01:
Your experts are arguing that if you're forced downward, the floor is here.

[00:32:40] Speaker 01:
And if you push down Newton's law for every action, there's an equal reaction.

[00:32:45] Speaker 01:
And therefore, the floor now is pushing up against this, and that's the support.

[00:32:51] Speaker 01:
And that's what the judge said that it can't be.

[00:32:56] Speaker 03:
To the extent the judge is saying that, it's a clearly erroneous determination.

[00:33:01] Speaker 03:
What the expert is saying is that foreplay that lays on the ground, just like the table legs and the tabletop, is holding up the weight of what's on top of it.

[00:33:10] Speaker 03:
And then what our expert has said is, when you couple that by putting a vertical plate and welding it together, and welding an angle plate, what you've now done is made the outer portions of that skid 75 times stiffer than the portion in between where those two rails are.

[00:33:30] Speaker 03:
And under Hooke's law, which was not controverted, their expert didn't say Hooke's law.

[00:33:33] Speaker 04:
And therefore what?

[00:33:35] Speaker 04:
Forget about Hooke's law.

[00:33:36] Speaker 04:
And therefore what?

[00:33:38] Speaker 03:
Because it's 75 times stiffer, what that means is that the weight of that protective shelter is being held up by those outside rails.

[00:33:48] Speaker 03:
And I'll try to give you a simple example of this.

[00:33:50] Speaker 03:
If I were to take two books and put the two books side by side, and then I were to put

[00:33:57] Speaker 03:
really soft peanuts, like packing peanuts.

[00:34:01] Speaker 03:
And I put those packing peanuts between those two books.

[00:34:04] Speaker 03:
On the ground, on the table, I put two books side by side.

[00:34:11] Speaker 03:
of equal height.

[00:34:12] Speaker 03:
I put packing peanuts in between to the same height as the two books.

[00:34:16] Speaker 03:
And then I put an ice cooler that weighs 200 pounds on top of it.

[00:34:20] Speaker 03:
What he's saying is the books are carrying the load, not the peanuts, because those styrofoam peanuts would be compressed and they're not being compressed because the books are a lot stiffer than the peanuts in between are.

[00:34:32] Speaker 03:
So on these rails, when you put these two rails onto that... Okay, I will say, that I get.

[00:34:38] Speaker 04:
Okay.

[00:34:38] Speaker 04:
Thank you.

[00:34:40] Speaker 03:
And then real quick, with respect to the battles limitation, you were dead on with this.

[00:34:45] Speaker 01:
The experts didn't testify as to what that hypothetical that you just posed.

[00:34:50] Speaker 03:
No, the expert provided Hooke's Law and said Hooke's Law stands for the proposition that the stiffness

[00:34:57] Speaker 03:
tells you where the weight is being carried because Hook's Law says that the stiffer the object is, the more weight it carries.

[00:35:05] Speaker 03:
It didn't provide that analogy.

[00:35:06] Speaker 03:
You're absolutely correct.

[00:35:08] Speaker 01:
Can you give us your concluding thoughts?

[00:35:11] Speaker 03:
Yes, Your Honor.

[00:35:12] Speaker 03:
Clearly what the district court did was do an infringement analysis that you're absolutely correct about.

[00:35:19] Speaker 03:
it is for the jury if there's any basis for a factual dispute.

[00:35:23] Speaker 03:
What counsel was talking about with respect to subsidiary findings goes to claimant interpretation and you can only use

[00:35:30] Speaker 03:
Extrinsic evidence, if there's an ambiguity with respect to the terms and the intrinsic evidence, and you can't use extrinsic evidence to contradict the interpretation you would have from the claims or the intrinsic evidence, exactly to his point, you'd get an expert to say anything.

[00:35:46] Speaker 03:
So if it's not an ambiguity of the terms itself and the intrinsic evidence, you don't even consider contrary extrinsic evidence.

[00:35:56] Speaker 01:
Okay.

[00:35:56] Speaker 01:
Thank you.