[00:00:50] Speaker 02: Wonderland Nursery Goods. [00:00:55] Speaker 02: Council? [00:00:57] Speaker 02: You ready to go forward? [00:01:01] Speaker 02: Please do. [00:01:05] Speaker 02: Mr. Talvich? [00:01:06] Speaker 01: Yes, sir. [00:01:08] Speaker 01: May it please the Court. [00:01:10] Speaker 01: The District Court erred in two fundamental ways. [00:01:15] Speaker 01: First, the District Court failed to apply its own construction. [00:01:20] Speaker 01: And second, without finding any exception that would allow it to do so, it read in limitations from the preferred embodiments into the claims. [00:01:29] Speaker 01: And if I may, I'd like to begin with the first motion mechanism, which deals with the first type of error. [00:01:36] Speaker 01: The district court corrects- This is the one for claim 14? [00:01:38] Speaker 01: That's for claim 14, correct. [00:01:40] Speaker 01: the district court correctly construed the limitation calling for a first motion mechanism for driving. [00:01:47] Speaker 00: Let's assume for purposes of this question that I think you say this that the district court in the claim construction adopted one claim construction and then in the summary judgment effectively narrowed the claim construction and so sometimes district courts can do that and it effectively narrowed it to say that [00:02:08] Speaker 00: some kind of horizontal cabining is required for the guiding elements. [00:02:17] Speaker 00: Why is that wrong? [00:02:18] Speaker 01: Okay, so we're turning to the guiding elements limitation or are we still on the first one? [00:02:21] Speaker 00: I'm talking about Claim 14 because if the District Court is right about this aspect of guiding elements, the motion mechanism doesn't matter, right? [00:02:29] Speaker 01: That's correct, Your Honor. [00:02:31] Speaker 01: The District Court, I believe, read in limitations that are not required by Claim 14 itself. [00:02:38] Speaker 01: Claim 14, it pretty clearly defines what the guiding element is, that it merely needs to be something that the rollers are able to be movable upon. [00:02:49] Speaker 01: There's nothing in the claim language that would suggest to us that the guiding elements need to have any sort of a three-dimensional structure or that it needs to guide in any particular direction, much less both vertical and horizontal. [00:03:04] Speaker 01: Notably, the court did find [00:03:06] Speaker 01: that the guiding elements of the Mamoru, the structure we identified as the Mamoru, as the guiding elements, did guide, or at least there was a question of fact as to whether it guided the rollers along a horizontal plane. [00:03:19] Speaker 02: So in the vertical direction. [00:03:20] Speaker 02: You make that argument. [00:03:21] Speaker 02: You say a set of pathways in your brain. [00:03:25] Speaker 01: That's correct, Your Honor. [00:03:27] Speaker 02: OK. [00:03:29] Speaker 02: And you say that that's consistent with the re-examination file history. [00:03:36] Speaker 02: Then quoting, in particular, the examiner found that flat surfaces constitute guiding elements. [00:03:42] Speaker 02: And then you refer to what the examiner concluded about Serbau's runway 14 and not the adjacent shoulder 16 as guiding elements. [00:03:57] Speaker 02: So I looked at what the examiner said about Serbau. [00:04:01] Speaker 02: And he said the first motion mechanism includes [00:04:06] Speaker 02: first pair of spaced apart guiding elements, track 1, runways 14, and includes two parallel rows of rollers, wheels 44, disposed on opposite sides of the base 30, which are movable along said guiding elements. [00:04:20] Speaker 02: What in the examiner's statement excluded the adjacent shoulders 16? [00:04:28] Speaker 01: I think that's the point. [00:04:31] Speaker 01: The examiner doesn't identify the shoulders at all or rely upon the shoulders at all and same goes for Thorley in their petition to the Patent and Trademark Office. [00:04:44] Speaker 01: Nowhere were the shoulders identified or the fact that the shoulders have the capability of guiding it in a horizontal direction. [00:04:52] Speaker 01: The only [00:04:54] Speaker 01: component that was relied upon were those runways and the ability of the runways to control in the vertical direction. [00:05:03] Speaker 01: So it simply wasn't addressed by the Patent Office at all. [00:05:11] Speaker 02: Let me back you up a little bit, because I have something that concerns me. [00:05:15] Speaker 02: And that is, in his red brief, and I checked this, [00:05:22] Speaker 02: at page 49, they say the text referring to a disc in the Wikipedia article was not added to that entry. [00:05:31] Speaker 02: That's why Wikipedia, by the way, is always problematic. [00:05:37] Speaker 02: It was not added to that entry until April 11, 2013, which was three months after the district court's Markman ruling. [00:05:47] Speaker 02: They then go on to say at footnote three, [00:05:50] Speaker 02: Revision history of a Wikipedia article is available by clicking on View History. [00:05:55] Speaker 02: Doing so on the page at issue reveals that a user named Roley Williams first added language about a disk on April 11, 2013. [00:06:07] Speaker 02: Does your client have anything to do with or know anything about Roley Williams? [00:06:11] Speaker 01: Rowley Williams is an individual that I'm not aware of that has any connection to my client. [00:06:17] Speaker 01: He has no connection to me. [00:06:19] Speaker 01: I did do a little background search and it appears that he's some individual that lives in England. [00:06:24] Speaker 01: No apparent connection to the client. [00:06:27] Speaker 01: But I think the bigger picture... You made an inquiry of your client, then? [00:06:29] Speaker 01: I did not make an inquiry of the client, but I don't believe that... In the first instance, I don't think Wikipedia or what Wikipedia says is a proper thing to focus on. [00:06:40] Speaker 01: We didn't direct the district court to look at the language of the Wikipedia. [00:06:45] Speaker 01: We merely cited to the demonstrative exhibit of the Hierapolis sawmill, which was an example of a disc-shaped crank. [00:06:56] Speaker 01: But most importantly for the crank limitation is... Well, wait a minute. [00:06:59] Speaker 02: That wasn't in Wikipedia? [00:07:01] Speaker 02: I'm confused. [00:07:02] Speaker 01: The Hierapolis sawmill? [00:07:04] Speaker 01: Uh-huh. [00:07:04] Speaker 01: It was, but we were merely citing it for that demonstrative exhibit. [00:07:08] Speaker 01: not necessarily what... For the truth of what was in it. [00:07:12] Speaker 01: To be honest, I think all of the Wikipedia sites, including the Hierapolis Sawmill, are fairly irrelevant as it comes to construing the crank limitation. [00:07:20] Speaker 01: What is important is how a person of ordinary skill in the art would view the crank term. [00:07:26] Speaker 02: And I think both parties during the crank... They tend not to be sympathetic with counsel who tell me that they've cited irrelevant material. [00:07:34] Speaker 01: I don't think it's irrelevant. [00:07:36] Speaker 01: I don't think that the decision turns upon it. [00:07:38] Speaker 01: I think it's relevant in the fact that it shows how both an arm-shaped crank and a disc-shaped crank can perform. [00:07:46] Speaker 01: I thought you just told me you didn't think it was relevant. [00:07:49] Speaker 01: I misspoke, Your Honor. [00:07:50] Speaker 01: I just think it's not material to the court's determination. [00:07:55] Speaker 01: It's certainly demonstrative of how the term crank could be viewed and how it has been viewed for many centuries. [00:08:02] Speaker 00: Can I ask, on the assumption that a crank [00:08:06] Speaker 00: in general usage doesn't depend on its shape. [00:08:13] Speaker 00: I guess I'm focused very much on the language of the claim that talks about this crank having two ends. [00:08:21] Speaker 00: And then related to that, I think this is page 1707 or 1706 in the joint appendix, your infringement contentions where you have two pictures, one from Thorley's patent, one from [00:08:36] Speaker 00: an actual photograph of the accused product, and on the disk what you do is draw little red dotted lines in the shape of an arm, namely a segment of the disk, and say that that's the crank. [00:08:51] Speaker 00: So now you seem to be arguing that the whole disk is the crank. [00:08:58] Speaker 01: It can be viewed either way. [00:09:00] Speaker 01: that the entire disc is. [00:09:02] Speaker 01: The ends language in the claim was not construed by the district court. [00:09:06] Speaker 00: No, but I'm not sure that needs construction. [00:09:08] Speaker 00: So just focus on that for a minute. [00:09:11] Speaker 00: This crank has to have two ends. [00:09:13] Speaker 00: Hard for me to see that a disc does. [00:09:16] Speaker 00: Not hard for me to see that a arm-like segment built into the disc might [00:09:22] Speaker 00: But that's not what you're arguing. [00:09:25] Speaker 01: I think that when you look at a disk and where you actually have the two connection points, the two connection points really define where the two ends are. [00:09:34] Speaker 01: If you just had a single disk that rotates about its center and it's not connected at another point, certainly there's really no ends to the structure. [00:09:44] Speaker 01: But in operation, when you take a disk like this, connect it at two points, [00:09:49] Speaker 01: and put it in a mechanism, it certainly does have two ends. [00:09:53] Speaker 01: One end would be where the first point is connected. [00:09:55] Speaker 01: The other end would be where the second point is connected. [00:09:58] Speaker 01: In this case, we have both. [00:10:02] Speaker 01: As far as showing the link onto the disk, that's certainly relevant to our theory of infringement under the doctrine of equivalence, for sure. [00:10:14] Speaker 00: Can I ask this? [00:10:16] Speaker 00: On the assumption [00:10:18] Speaker 00: that the only part of the claim construction for claim three, the two issues, crank and connected fixedly, that I think is wrong is the right angle piece. [00:10:35] Speaker 00: Is there anything to remand? [00:10:38] Speaker 01: I believe there is, as long as you agree with us on the connected fixedly limitation. [00:10:43] Speaker 00: No, I'm sorry. [00:10:44] Speaker 00: I tried to be clear. [00:10:46] Speaker 00: I'll state it. [00:10:49] Speaker 00: Suppose I disagree with you about crank and conclude that a crank has to be an arm. [00:10:58] Speaker 00: I agree with you that it doesn't have to be at right angles. [00:11:02] Speaker 00: I disagree with you about the connected fixedly. [00:11:05] Speaker 00: Do I need to remand on claim three and how so? [00:11:07] Speaker 00: Because there's no dispute that the accused product has a right angle. [00:11:11] Speaker 01: No, you would not need to remand because the issue, the claim construction of connected fixedly is determinative by itself. [00:11:18] Speaker 01: Oh, by itself. [00:11:20] Speaker 00: By itself. [00:11:21] Speaker 00: Even though the stipulation doesn't actually say that, but you now agree. [00:11:24] Speaker 00: A red brief says that, right? [00:11:26] Speaker 01: Correct. [00:11:27] Speaker 01: We've never contended a doctrine of equivalence argument for the connected fixedly, but we did for the crank limitation. [00:11:35] Speaker 01: So what controls the judgment of non-infringement at the district court is the construction of connection. [00:11:39] Speaker 02: I want to go back to your points of connection on your disk. [00:11:42] Speaker 02: Sure. [00:11:44] Speaker 02: What you've told us is that if you have two points of connection, you have two ends. [00:11:48] Speaker 02: That's right, in the way that... Supposing you have three points of connection. [00:11:56] Speaker 01: I suppose it would depend on where that third point at the point... Where does it all end? [00:12:04] Speaker 02: How many points of connection can I have on a disk, and are those all ends? [00:12:12] Speaker 01: They could be if they were in a primeless... [00:12:15] Speaker 01: Well, if it was in a straight line, then they couldn't, if all three points were in a straight line, I think only two of them would be at the ends, and one of them would not be. [00:12:26] Speaker 01: If it's in a triangular shape, perhaps there could be, you know, the equivalent of three separate ends. [00:12:33] Speaker 01: You could have three points of connection. [00:12:35] Speaker 01: You could have three points of connection in a triangular fashion, and each one of them could be, I guess they'd be more accurately defined as being at each corner. [00:12:43] Speaker 01: three different corners as opposed to being at ends. [00:12:50] Speaker 01: I would like to address the connected fixedly limitations. [00:12:54] Speaker 01: So you know you're into your rebuttal time. [00:12:57] Speaker 01: Sure, I think the connected fixedly limitation is, its ordinary meaning is really well conveyed by the dictionary definition of connected and fixedly. [00:13:09] Speaker 01: The district court [00:13:12] Speaker 01: I think made an error just even in how the term connected is used in common usage. [00:13:17] Speaker 01: I think it's very common to say that your arms and legs are connected to your torso when they've never been disconnected. [00:13:24] Speaker 01: And the district court, I believe also in the regents case, which Thorley cites and relies upon, pretty clearly came to the same conclusion when it said a marble statue could be said to have a top half that's connected to a bottom half. [00:13:40] Speaker 01: And with that, I'd like to reserve the remainder of my time for rebuttal. [00:13:50] Speaker 02: Mr. Breen? [00:13:56] Speaker 02: Yes, sir. [00:13:56] Speaker 02: I say that to all counsel because I want to make sure I'm pronouncing your name correctly. [00:14:01] Speaker 02: So if I get it wrong, please, anyway. [00:14:03] Speaker 03: Yes, Breen is correct. [00:14:05] Speaker 03: Thank you, Your Honor. [00:14:06] Speaker 03: May it please the Court [00:14:07] Speaker 03: Wonderland fails to show any error by the district court in this case, let alone the four distinct and independent claim construction errors and two associated factual findings by the district court, all of which Wonderland would need to prevail on as they've now conceded. [00:14:21] Speaker 00: Let me disagree. [00:14:22] Speaker 00: No, I don't think that they've conceded that. [00:14:25] Speaker 00: If they prevailed on connected fixedly, they'd get a remand on claim three. [00:14:31] Speaker 00: I think that they do on claim 14 have to prevail [00:14:36] Speaker 00: at least on the guiding elements, which seems to me their sticking point. [00:14:42] Speaker 03: Well, I would disagree with that, Your Honor. [00:14:43] Speaker 03: I think when you look at the text of the stipulation with regard to claim three, they did not say we cannot prevail on a literal infringement theory anymore under claim three in light of these two separate constructions. [00:14:55] Speaker 00: They simply said... In light of the combination of the two constructions. [00:14:59] Speaker 00: That's all the stipulation says. [00:15:03] Speaker 03: It lists both separately. [00:15:04] Speaker 03: It refers to the constructions. [00:15:06] Speaker 00: In light of those constructions, it can't prevail on infringement. [00:15:09] Speaker 00: That doesn't say that it can't prevail on infringement if one but not both were overturned. [00:15:18] Speaker 03: I mean, we disagree with that, Your Honor, obviously. [00:15:21] Speaker 00: OK, we'll move on then to the substance. [00:15:24] Speaker 03: Sure. [00:15:24] Speaker 03: So claim three has two distinct claim requirements connected fixably and crank. [00:15:30] Speaker 03: I guess some more time was spent on cranks, so I'll start there. [00:15:33] Speaker 03: The district court construed crank to require, among other things, that the crank take the form of an arm. [00:15:37] Speaker 03: We think that this is fully consistent with how the term is used in the patent and consistent with how the term is defined in a number of extrinsic sources. [00:15:45] Speaker 00: But not all extrinsic sources. [00:15:47] Speaker 00: It seems to me the arm question comes down, in my mind, quite simply to the claim language saying it has to have two ends. [00:15:56] Speaker 00: Otherwise, I don't know how you'd get there. [00:15:58] Speaker 03: Yeah, we agree with that. [00:15:59] Speaker 03: And we think that the intrinsic record shows an arm with two ends. [00:16:03] Speaker 03: Dictionary definitions at A549 and A411 also refer to an arm. [00:16:08] Speaker 03: We do think it's very clear that an arm has two ends, whereas a disc does not for a number of reasons that Your Honor's discussed with my opposing counsel earlier. [00:16:15] Speaker 03: So the arm construction, we think, is sufficient to exclude the scope of the disc that's being accused, and that's why Wonderland stipulated at that time that the crank construction was dispositive of the [00:16:29] Speaker 03: the infringement issue. [00:16:30] Speaker 00: Right, but I'll say again, they did not stipulate to that. [00:16:33] Speaker 00: They stipulated that the two constructions together deprive them of an infringement case. [00:16:41] Speaker 03: Right, Your Honor, I understand, and we disagree with this. [00:16:44] Speaker 00: But turn to the connected fixedly. [00:16:46] Speaker 00: If I had, sorry about this, if I had a hammer that [00:16:52] Speaker 00: Would it not be possible to say that the face, the hitting face and the claw are connected fixedly even though they're both, they're cast in a, out of a single piece of, I don't know, iron or whatever it is? [00:17:06] Speaker 03: Well, we don't think that reflects the ordinary meaning of the term and we certainly don't think that reflects how the term is used in the context that matters most, which is how it's used in the 609 patent. [00:17:15] Speaker 03: Without exception, the word connected or connected fixedly describes separate pieces [00:17:20] Speaker 03: that are somehow joined together. [00:17:21] Speaker 00: So that was actually a question I wanted to probably actually ask your friend on the other side, but I'll ask you. [00:17:29] Speaker 00: In the several figures of the seat, the base, the bottom seat, are there any separately labeled, either by number or word, portions that are nevertheless cast [00:17:50] Speaker 00: out of, say, the same piece of plastic as other separately numbered portions? [00:17:56] Speaker 03: Well, the only example that I'm aware of is the piece that has the base and the legs. [00:18:01] Speaker 03: Those are elements 2 and 26 respectively. [00:18:05] Speaker 03: The patent describes those two portions of a single piece as being integrally formed. [00:18:10] Speaker 03: And when describing how the base relate to the legs, it says that the legs extend from the base. [00:18:18] Speaker 03: It does not say that the legs are connected [00:18:20] Speaker 03: to the base. [00:18:21] Speaker 00: So if I'm looking at figure one, which shows all three pieces, is it right that if everything except the rails were formed out of a precast, is this plastic that this is made of, or is this some other material? [00:18:42] Speaker 03: I'm not sure that the patent specifically limits it to that, but that's my understanding. [00:18:45] Speaker 00: Okay, let's assume it's plastic. [00:18:46] Speaker 00: If it was all formed out of a single piece of [00:18:49] Speaker 00: Are there any separately numbered and named portions of that, assuming that everything but the rails was precast? [00:19:06] Speaker 03: Specifically with respect to the base portion that we're talking about, Your Honor? [00:19:09] Speaker 03: I'm now talking about the bottom seat. [00:19:11] Speaker 03: Oh, the bottom seat. [00:19:12] Speaker 00: But it's exactly the same question for all three pieces. [00:19:15] Speaker 03: And again, Your Honor, I'm not aware of any [00:19:18] Speaker 03: any separately labeled pieces within a single element that are described as connected to each other. [00:19:26] Speaker 03: I mean, we think there's a great deal of internal full consistency in the 609 patent that two pieces that are identified and shown separate from each other are described as connected, but in the only example of something that's not separate pieces and something that's integral, those pieces relate to each other by extending into each other. [00:19:44] Speaker 03: And that, we think, is telling of how connected is [00:19:47] Speaker 03: is used in the patent, and Judge Fischer found that connected fixedly implies to any person, ordinary skill in the art, or not, that there's a connection of separate pieces. [00:19:56] Speaker 03: And we think that the patent certainly seems to use that term in consistent with that way. [00:20:01] Speaker 03: She had seen some extrinsic sources as well. [00:20:04] Speaker 03: This isn't common, fairly ordinary term, not a technical term, and we think the district court reached the right conclusion, especially in light of the clear intrinsic record on connected fixedly. [00:20:14] Speaker 02: The general term for [00:20:18] Speaker 02: example for a claw hammer with the claw on one end and the striking face on the other is cast. [00:20:28] Speaker 02: Is that base cast as one piece? [00:20:31] Speaker 03: Yeah, that's how I would understand it as well. [00:20:33] Speaker 03: I mean, cast, molded, integrally formed. [00:20:35] Speaker 03: There are a number of ways to describe it. [00:20:36] Speaker 03: None of those are what anyone would refer to in the art, especially in light of this patent is connected. [00:20:41] Speaker 03: And that's the dispositive issue in our view with claim three. [00:20:45] Speaker 00: Can you talk about the guiding elements? [00:20:47] Speaker 00: I mean, tell me, the impression I have is that all of this, on that piece of it, just the guiding elements piece, comes down to whether that phrase requires something other than pure vertical blocking, a pure vertical blocking role, that it has some additional [00:21:13] Speaker 00: you know, channeling of the thing being guided in some dimension other than don't let it go further south. [00:21:24] Speaker 03: We believe that there is a strong connotation of the set of tracks, which direct movement construction that does require some side to side stability. [00:21:31] Speaker 00: So where do you get that out of the patent? [00:21:35] Speaker 03: Out of the patent? [00:21:36] Speaker 03: Well, we only have one, we have one consistent type of example in the patent of what guiding elements are. [00:21:41] Speaker 03: And they are these guiding rods that the patent discloses that clearly provide, you know, in addition to a vertical support so it doesn't fall through and touch the bottom seat, it does prevent the wheels from rolling off one side or another. [00:21:53] Speaker 03: And the district court did note that really the more important dispute, at least between the parties, seemed to be whether there was any horizontal parentheses side to side restraint on the movement. [00:22:04] Speaker 03: That's noted at A42. [00:22:06] Speaker 03: So I think Your Honor is right that that really seems to be more of the issue. [00:22:09] Speaker 03: The district court didn't go quite that far and gave Wonderland the benefit of the doubt that there is at least some vertical support that may be controlled. [00:22:17] Speaker 00: But then the summary judgment ruling effectively said no reasonable jury could find that this, that my earlier claim construction applied here, basically because in the accused product, there is nothing to prevent the wheels from going anywhere except down. [00:22:38] Speaker 00: That's the only thing these paths do. [00:22:41] Speaker 03: I think that's a fair reading. [00:22:44] Speaker 00: Just, I guess, go along with me for purposes of this question and saying that's a revised claim construction, which is fine. [00:22:51] Speaker 00: What's the support for that view of what guiding elements ultimately has to mean? [00:22:57] Speaker 03: Well, I think the intrinsic record is very helpful in that respect. [00:23:01] Speaker 03: Again, we have the example of the guiding rods, which the way that those rods engage with the wheels [00:23:06] Speaker 03: The wheels sort of cup themselves over the rods a little bit so that there can't be any side to side movement by the wheels as it's rolling along. [00:23:13] Speaker 00: Right, but you need to get beyond exemplary to an example to why that's sort of actually suggested. [00:23:22] Speaker 03: Well, I think the district court started in the right place to answer that, where observing that the patent does talk more generally about the idea of a guided path as being sort of the direction in which this base can move. [00:23:34] Speaker 03: But then further drills down and specifies that the guiding elements are the physical structure that allow that movement to proceed along the particular pathway that the patent envisions. [00:23:45] Speaker 03: And so the guiding elements, with the examples being the rods, are in the patent very clearly three-dimensional structures that are capable of providing that kind of guiding function. [00:23:55] Speaker 03: The district court didn't go so far as to limit the term to include only rods, but did construe them consistent with that [00:24:02] Speaker 03: the broader genus of tracks, which could include a number of things noted in the record, such as a groove, a rail, or some other thing that extends from the surface upward or is embedded in the surface that's capable of providing the kind of guidance that's envisioned by the patent. [00:24:18] Speaker 03: So the horizontal side to side, we think that's clearly how the preferred embodiment works. [00:24:24] Speaker 00: Are there several embodiments here? [00:24:27] Speaker 03: There are a couple of alternative embodiments. [00:24:30] Speaker 00: Right, and maybe I'm not remembering right. [00:24:32] Speaker 00: I thought one of them didn't involve rails, but something more like indentations. [00:24:40] Speaker 00: Yes, so there is... I'm not envisioning that, so talk to me about that. [00:24:45] Speaker 03: So we discussed this more with respect to the crank limitation in the briefing, but what it is is instead of having a set of wheels and rails, the patent includes this threaded rod. [00:24:56] Speaker 03: sort of a helical slot in a rod. [00:24:58] Speaker 03: And as the rod turns, there are these teeth attached to the base that keep the base sort of connected to or engaged with the threaded slot in that rotating rod so that as the rod rotates, it moves along the teeth back and forth and up and down commensurate with the movement of those slots. [00:25:23] Speaker 00: And does that do something more than [00:25:27] Speaker 00: prevent up and down, that is, prevent vertical. [00:25:34] Speaker 00: Does it guide in any direction other than the vertical? [00:25:37] Speaker 03: Yes, because the shape is helical as opposed to just circular. [00:25:41] Speaker 03: It doesn't just move the base up and down. [00:25:43] Speaker 03: It also slides it back and forth in a horizontal direction. [00:25:47] Speaker 03: So I think that is consistent with the notion that, following your honor's logic, that some aspect of guiding elements we think fairly contemplates [00:25:56] Speaker 03: a horizontal guidance, some sort of mechanical horizontal guidance. [00:26:01] Speaker 03: The district court, again, we don't think the district court quite went that far, but if you read the district court's opinion as clarifying the claim construction, recognizing that horizontal guidance is an important dispute between the parties, we think the court was correct to resolve the issue in Thorley's favor on that ground as well. [00:26:26] Speaker 03: uh... there was some discussion as well about the first motion mechanism limitation you know this element is uh... raises a two-part issue and again this this independently justifies that summary judgment has to claim fourteen it's just to be clear if you're right about guiding elements that first motion that the rest of claim fourteen issues don't need to be considered that right that's correct and that your honor i think you and i agree is clearly stipulated by uh... [00:26:55] Speaker 03: by Wonderland, as to claim 14 at least. [00:27:00] Speaker 02: The first motion mechanism... Let me direct you to something which I raised with your opposing counsel since you put it in on a footnote, and that was the modification of the Wikipedia article. [00:27:11] Speaker 02: Did you attempt to trace that individual out? [00:27:14] Speaker 03: Other than some online searching, we did confirm. [00:27:17] Speaker 03: I actually think that the individual was in Australia and perhaps not England, but [00:27:20] Speaker 03: It seems to be an active Wikipedia, I believe is the term, fond of art editing articles. [00:27:26] Speaker 03: We don't make any representation that there's any affiliation between them. [00:27:31] Speaker 03: We just thought it was important to note that that evidence was not before the district court at the time. [00:27:38] Speaker 03: So a final point about the first motion mechanism, which again the court doesn't need to reach if it agrees with us on the guiding elements term. [00:27:47] Speaker 03: The district court construed [00:27:50] Speaker 03: I'm sorry, the district court construed for driving as being controlling or directing motion. [00:27:55] Speaker 03: We have an admission from Wonderland that the gear and linkage accused in the Mamoru product are, quote, for driving the base to move back and forth. [00:28:04] Speaker 00: But there may be many things that are for driving that doesn't make them all part of the motion mechanism. [00:28:09] Speaker 00: I thought it was really quite clear from the other claims that the gear and link are part of the motor, not part of the motion mechanism, both of which are for driving, but it doesn't matter. [00:28:19] Speaker 00: The claim requires that it be this, is it the first or the second motion? [00:28:23] Speaker 03: The first motion mechanism. [00:28:24] Speaker 00: The first motion mechanism for driving. [00:28:27] Speaker 00: That doesn't mean that everything that's for driving, including the producer of the impulsive force, is also a first motion mechanism. [00:28:36] Speaker 03: That's right, Your Honor. [00:28:36] Speaker 03: There are outer limits to what can be considered for driving in the context of this patent. [00:28:41] Speaker 03: The patent does use the term for driving somewhat inconsistently, but does at least consistently refer to pieces that control or direct [00:28:49] Speaker 03: movement as being for driving, we think it's important to recognize that the first motion mechanism in claim three, which is not characterized as for driving, but has a separate motor recited for driving, is different from the first motion mechanism in claim 12, which is recited as for driving. [00:29:06] Speaker 03: And the fact that there are dependent claims from there that specify and limit that first motion mechanism just to the wheels and the tracks, and that's claim 13, we think is a pretty clear signal [00:29:17] Speaker 03: that the first motion mechanism for driving in Claim 12 includes at least those things and something more. [00:29:24] Speaker 03: You're over your time, Counsel Sorrell. [00:29:26] Speaker 02: Unless there are further questions, then, Your Honor, I'll stop. [00:29:29] Speaker 02: Well, my only further question is, is a really active Wikipedia a Wikipedia act? [00:29:36] Speaker 03: I think I can agree with that, Your Honor. [00:29:45] Speaker 01: Your Honor, I'd like to address, I think, a mistake that Council for Thoroughly made in describing this helical shaft embodiment. [00:29:53] Speaker 01: There actually are two channels in that helical shaft. [00:29:58] Speaker 01: And one surface, one channel guides the horizontal movement and does engage with one of the little pins that sticks down to guide it horizontally. [00:30:08] Speaker 01: But the guiding element for the second motion mechanism, that shaft or that channel [00:30:14] Speaker 01: does not engage with or control it in a horizontal direction, but it's merely a flat path that guides it vertically. [00:30:24] Speaker 01: So I think that that needs to be clarified. [00:30:27] Speaker 01: With respect to the guiding elements limitation, all the rest of the arguments that opposing counsel has proffered really demonstrate the district court's error here. [00:30:36] Speaker 01: When you ask for the support for the horizontal guidance and the [00:30:43] Speaker 01: the three-dimensional structure, he went straight to the rod embodiment and said, well, look, the rod guides horizontally. [00:30:49] Speaker 01: Well, look, the ride is a three-dimensional structure. [00:30:54] Speaker 01: What he ignored was the broad language of the claim, which simply calls for a guiding element, so that the patentee here chose wrong. [00:31:03] Speaker 00: I'm sympathetic to the notion that there's not a lot of material to go on here. [00:31:08] Speaker 00: But there is a kind of intuition that a floor is not guiding. [00:31:14] Speaker 00: All by itself, just the floor. [00:31:18] Speaker 00: And that's all you have for these little pathways, which might have the equivalent of chalk marks that show you where they are, but the chalk's not doing anything. [00:31:30] Speaker 01: Well, I think the track in this instance is dictated by the wheels and where they actually move along that flat surface. [00:31:38] Speaker 00: And that's dictated simply by [00:31:41] Speaker 00: the physical structure of the wheels connected to, is it a post? [00:31:44] Speaker 00: Is that what it is? [00:31:45] Speaker 01: I think they call it a double scissor mechanism. [00:31:47] Speaker 00: Right, but there's something else. [00:31:50] Speaker 00: That whole double scissor mechanism is connected to something that prevents it from sliding off to the side, right? [00:31:59] Speaker 00: Is it connected to a central post? [00:32:02] Speaker 01: Well, there's a base underneath the double scissor mechanism that moves horizontally. [00:32:07] Speaker 01: And then on top of that, you have the double scissor mechanism, the platform on which the baby sits. [00:32:12] Speaker 01: And that double scissor mechanism, by virtue of a crank and link, reciprocates up and down. [00:32:19] Speaker 01: I guess you could think of this as, what if those areas with the chalk lines, as you put it, weren't there, if there was no flat surface? [00:32:28] Speaker 01: Certainly, those wheels. [00:32:29] Speaker 02: Well, what if the chalk lines weren't there? [00:32:30] Speaker 01: And there was a flat surface. [00:32:33] Speaker 01: We don't dispute that those raised lines are really just an indicator for the manufacturing process to show you where the wheels are supposed to be traversing. [00:32:41] Speaker 01: So it is informative as to where the tracks are because that's where the wheels are going to be traversing back and forth. [00:32:49] Speaker 01: So you use track as synonymous with route? [00:32:54] Speaker 01: I think it could be synonymous route, but I think we're more using it [00:32:58] Speaker 01: in the sense of a track through the woods, a path through the woods. [00:33:01] Speaker 01: And I think the definition of track, which is in the record at Joint Appendix at 423, clearly encompasses a flat surface, a path through the woods would be an example. [00:33:13] Speaker 01: A trail through the woods is a track. [00:33:16] Speaker 01: So we're not using it in over your time, Councilman. [00:33:19] Speaker 01: Thank you, Your Honor. [00:33:21] Speaker 01: If there's no further questions. [00:33:24] Speaker 01: Thank you.