[00:00:00] Speaker 03:
16-1301 Wonderformer vs Flex Studios.

[00:00:12] Speaker 03:
Mr. Bader, please proceed.

[00:00:33] Speaker 00:
There are two terms at issue today.

[00:00:37] Speaker 00:
I'd like to start with the term stowed.

[00:00:41] Speaker 00:
The district court's construction of the term stowed improperly included the limitation that the ergonomic purchase is not intended for use by a user exercising by means of the reformer.

[00:00:54] Speaker 00:
And this is actually a rare case where

[00:00:58] Speaker 00:
the patentee actually defined the term stowed in the specification.

[00:01:02] Speaker 03:
Let me be clear.

[00:01:04] Speaker 03:
Absent the patentee's lexicography, would you agree that all the dictionary definitions produced, both those by you as well, I guess you produced one dictionary, they produced a different one, all contain use

[00:01:20] Speaker 03:
elements in the definition of stowed such as the plain meaning in the abstract, not in this patent, but just in the abstract.

[00:01:29] Speaker 03:
The plain meaning to a random person of the word stowed would include a use aspect.

[00:01:36] Speaker 00:
I would actually disagree with that.

[00:01:37] Speaker 00:
I think the gut reaction when you hear those two terms and you look at the express definition of deployed in the spec and then if you were to ask someone walking down the street what is the definition of stowed then?

[00:01:50] Speaker 00:
you may come up with what the district court did.

[00:01:52] Speaker 00:
However, to specifically address your question, one of the definitions in the record, actually, is from the 2011 American Heritage Dictionary of English Language.

[00:02:04] Speaker 00:
And the definition of stowed there, the first definition, is to place or arrange especially in a neat and compact way.

[00:02:12] Speaker 00:
Now, that has nothing to do with whether or not something is available for use.

[00:02:17] Speaker 00:
The second definition does go the other way.

[00:02:21] Speaker 00:
However, there are certainly definitions that don't talk about stowed in terms of availability for use.

[00:02:27] Speaker 00:
And those definitions are in the record.

[00:02:30] Speaker 00:
So I would disagree.

[00:02:31] Speaker 00:
Maybe your gut reaction is, yes, stowed means not available for use.

[00:02:37] Speaker 00:
But here, of course, first thing we have to do is look at the patent itself.

[00:02:42] Speaker 03:
Where have you heard the word stowed used most often?

[00:02:45] Speaker 00:
What's your premiere status?

[00:02:46] Speaker 00:
Yeah, I would think maybe on an airplane.

[00:02:49] Speaker 03:
Stow your luggage.

[00:02:49] Speaker 03:
Of course, that's where I'm going.

[00:02:51] Speaker 03:
Every flight attendant has this little thing memorized where they tell you to stow your articles.

[00:02:55] Speaker 03:
And it always means to come underneath the seat in front or in the overhead, and you can't use them.

[00:03:00] Speaker 00:
Well, I think that's right.

[00:03:02] Speaker 00:
And what we're talking about here is a patent directed to a specific invention of a Pilates reformer.

[00:03:08] Speaker 00:
And in this instance, stowed does not mean put away and not intended for use.

[00:03:14] Speaker 00:
to the contrary.

[00:03:15] Speaker 03:
Well, does it mean not intended for use while using the Pilates Reformer in its intended exercise fashion?

[00:03:24] Speaker 03:
I have some degree of familiarity with these devices.

[00:03:28] Speaker 03:
So, maybe one for three in that regard, I'm just guessing.

[00:03:33] Speaker 03:
But in any event, you can't use the Pilates Reformer, for example, to

[00:03:43] Speaker 03:
do the Pilates exercises when the jump board and the ballet bar and all of those things are compacted down and put away, can you?

[00:03:53] Speaker 00:
So with respect to the jump board and the ballet bar, I would agree in this instance those two of the ergonomic purchases do not appear to be available for use when they're in the stowed position.

[00:04:06] Speaker 00:
I would disagree with respect to the handles and also the bench.

[00:04:10] Speaker 00:
The bench, if you look at

[00:04:13] Speaker 00:
If you look at the summary of the invention, the bench rotates into two separate positions.

[00:04:19] Speaker 00:
And if you look at column two, line 58 through 61, the spec there actually says, therefore the bench, when stowed, provides a seat at the carriage level.

[00:04:31] Speaker 00:
And when deployed, the bench may provide a seat at a level other than the carriage and also a push-off surface that faces the carriage.

[00:04:38] Speaker 00:
Now, the seat is something that is used with the exercise.

[00:04:41] Speaker 00:
That's the whole purpose of this

[00:04:43] Speaker 00:
Devices to have a seat that can be used in different positions to do various different exercises And we actually have some pictures in the record if you look at it illustration seven and in the blue brief That actually shows not only our device The wonderful device being used with the bench in the stowed position, but there's also excuse me I believe it is

[00:05:18] Speaker 03:
Page 15 of the blue brief.

[00:05:33] Speaker 02:
So that's actually showing the bench.

[00:05:38] Speaker 00:
The figure on the left is the commercial embodiment of the wonderful machine.

[00:05:44] Speaker 00:
And that actually shows the bench having been rotated to the down position.

[00:05:48] Speaker 00:
And that shows the the inventor actually on the machine doing exercise now the picture on the right is actually the accused product and The bench that her back foot is on there moves up and down if you look on page 14 You can actually see the bench in the upper position there in the deployed position and then On the right on page 15 the bench has moved down now.

[00:06:15] Speaker 00:
That's a picture that

[00:06:16] Speaker 00:
We actually located on the internet.

[00:06:18] Speaker 00:
We didn't create this picture.

[00:06:19] Speaker 00:
It actually shows the device being used when in the stowed position.

[00:06:24] Speaker 04:
So the... This is both of these photographs or the flex one?

[00:06:32] Speaker 00:
I'm sorry.

[00:06:32] Speaker 00:
The picture on the left is the one former and the picture on the right is the flex machine.

[00:06:36] Speaker 04:
Both of those are... Where do these pictures come from?

[00:06:38] Speaker 00:
The picture on the left was actually something that we created in connection with an expert declaration that was submitted in the case.

[00:06:45] Speaker 00:
And the picture on the right was something that was evidence in the case.

[00:06:49] Speaker 00:
It was located on the internet.

[00:06:54] Speaker 00:
So I think that highlights pretty clearly why the defendant has tried to import this limitation into the claim that it's not intended for use.

[00:07:05] Speaker 04:
Can I just ask about a couple of things?

[00:07:07] Speaker 00:
Sure.

[00:07:07] Speaker 04:
So that the district court's claim construction not only didn't adopt but rejected

[00:07:14] Speaker 04:
a proposal that when in stowed position, there is a requirement of unavailability for use.

[00:07:25] Speaker 04:
No, no, you clearly can't.

[00:07:27] Speaker 04:
This is, in fact, just about not intended to be used.

[00:07:34] Speaker 00:
Yes, I agree.

[00:07:34] Speaker 00:
I think that's one of the kind of hard things about the district court's opinion to reconcile.

[00:07:39] Speaker 04:
Well, except that the whole point of the district court's opinion is,

[00:07:44] Speaker 04:
When you read the patent, you keep getting the impression over and over again that stowed is the opposite of deployed.

[00:07:51] Speaker 04:
And while it is a, in the abstract, a singularly strange construction to say this is about somebody's intent to be used, unmistakably that's true for deployed.

[00:08:07] Speaker 04:
So it suddenly becomes not at all weird to say it for the mirror image.

[00:08:11] Speaker 00:
So I actually disagree that the spec is consistent in that manner.

[00:08:15] Speaker 00:
There are embodiments that appear, not that the spec actually says that it's unavailable for use, but that appear where you wouldn't be able to use the jump board, for example.

[00:08:26] Speaker 00:
However, there are embodiments that specifically actually say this is a seat for exercise when used or

[00:08:36] Speaker 04:
in the stowed position so you have this one embodiment where... Is the column two line 58 business, is that the one embodiment that you pointed to where you say the stowed position is being discussed as a position in which the ergonomic purchase would be used for exercise?

[00:09:01] Speaker 00:
Correct, with respect to the bench.

[00:09:04] Speaker 04:
And just that one line, right?

[00:09:07] Speaker 04:
Because it seems to me that line is not exactly clear about using the bench as a seat for exercise, as opposed to using it as a seat.

[00:09:19] Speaker 00:
Well, the whole point of these machines is simply to do exercises.

[00:09:24] Speaker 00:
There's no reason to simply sit on a bench by itself and not exercise.

[00:09:30] Speaker 00:
That's just not something that's done.

[00:09:31] Speaker 00:
Well, resting, I guess.

[00:09:34] Speaker 04:
Is there something else in the patent itself that ever discusses using the bench in the down position for exercise?

[00:09:43] Speaker 00:
I don't think there's any other space or any other spot in the specification that describes that.

[00:09:49] Speaker 00:
There was an expert declaration submitted in the case that certainly describes it.

[00:09:55] Speaker 04:
That sometimes people do, and the district court said, yes, I agree, there's evidence of that, so I'm not building that into the claim construction.

[00:10:03] Speaker 04:
Again, I guess... Why did you stipulate to non-infringement under... You have this photograph showing the other sides on their website, is that what you said?

[00:10:16] Speaker 00:
Yes.

[00:10:17] Speaker 04:
Showing somebody that you say is using the device with the bench in the down position.

[00:10:25] Speaker 04:
Why do you stipulate that there can't be infringement under the district courts?

[00:10:30] Speaker 00:
When we review the district courts,

[00:10:33] Speaker 00:
ruling and construction, we looked at that and said how can we in good faith say that this bench is not intended for use.

[00:10:44] Speaker 00:
We know how these benches are used, we know how these Pilates machines are used, and the whole point of the bench being able to be in different positions is so that it can be used for different exercises.

[00:10:57] Speaker 00:
There is an efficiency and a reason to stow it

[00:11:01] Speaker 00:
for purposes.

[00:11:03] Speaker 04:
Maybe you're not understanding what might not be legally relevant here, but I guess is puzzling to me.

[00:11:10] Speaker 04:
You have a photograph from their website.

[00:11:14] Speaker 04:
Let's say you interpret that photograph as they're advertising a particular use of their machine.

[00:11:22] Speaker 04:
Why in the face of that evidence do you stipulate that their machine is not intended

[00:11:29] Speaker 04:
to be used with the bench in the down position.

[00:11:34] Speaker 00:
I don't think that that's, if the construction requires that it not be intended for use, that picture clearly shows that it is intended for use when in the stowed position.

[00:11:45] Speaker 00:
So I think we have a very hard time proceeding in view of that evidence.

[00:11:49] Speaker 02:
Let me ask a simple question here.

[00:11:53] Speaker 02:
You keep saying intended for use.

[00:11:55] Speaker 02:
Should we be looking at whether the seat can be used?

[00:11:59] Speaker 02:
I mean, can you claim the intent of the user?

[00:12:04] Speaker 00:
I agree with you that I don't think we should be looking at the intended use, and I don't think we need to be looking at the availability of the use.

[00:12:09] Speaker 00:
I think the patentee described what stowed means, and that's what we need for infringement to look at.

[00:12:16] Speaker 02:
Perhaps we can look at the intended use, but the intent of the user to use something.

[00:12:23] Speaker 00:
I agree.

[00:12:24] Speaker 00:
That turns infringement into a subjective

[00:12:28] Speaker 00:
kind of determination of what someone happens to be using the machine for at that moment, and I think that's improper.

[00:12:36] Speaker 02:
Did you address or did anyone address this issue at all?

[00:12:41] Speaker 00:
We certainly addressed the fact that we did not think that the limitation that it's not intended for use and available, which is what they were arguing at the time, was improper.

[00:12:52] Speaker 00:
Again, if you go back to the express definition, it says the term stowed as used herein means a state or position of the component of the reformer which collapses the overall volume of the reformer to a minimum.

[00:13:04] Speaker 00:
That says nothing about intended for use, unavailable for use, or anything else.

[00:13:09] Speaker 00:
That's the definition.

[00:13:10] Speaker 00:
And the minute we start wading into this discussion about whether the bench is intended for use or not intended for use,

[00:13:18] Speaker 00:
The court has gone down the entire wrong path here.

[00:13:21] Speaker 02:
In full disclosure, I have an exercise on a Pilates machine, but I've lifted one.

[00:13:26] Speaker 02:
I've moved one a number of times.

[00:13:28] Speaker 02:
And regardless of whether any of the attachments are deployed or stowed, they weigh a lot.

[00:13:34] Speaker 02:
That's true.

[00:13:35] Speaker 03:
All right, Mr. Bader, let's hear from Mr. Barnett.

[00:13:38] Speaker 03:
We'll save the remainder of your time for rebuttal.

[00:13:41] Speaker 01:
May it please the court?

[00:13:43] Speaker 01:
I'd like to begin with the dictionary definitions.

[00:13:45] Speaker 01:
That's where Mr. Bader started, because I think you received an incomplete definition.

[00:13:50] Speaker 01:
The definition that Mr. Bader read to you, which is on page 11 of the red brief, is to place or arrange, especially in a neat, compact way.

[00:14:03] Speaker 01:
But that's actually not the full definition here.

[00:14:05] Speaker 01:
There's actually a colon that follows that statement.

[00:14:09] Speaker 01:
And the definition continues.

[00:14:11] Speaker 01:
stowed his gear in a footlocker.

[00:14:13] Speaker 01:
Well, clearly when your gear is placed in a footlocker, it's not available or intended for use.

[00:14:19] Speaker 03:
And in fact, there's nothing in that statement that suggests that the gear was... Yes, but whether you're right kind of is irrelevant because his argument is that there was lexicography here.

[00:14:31] Speaker 03:
So the dictionary definitions are no longer applicable.

[00:14:36] Speaker 01:
Sure, fair enough.

[00:14:37] Speaker 01:
Fair enough.

[00:14:37] Speaker 01:
So why don't we talk about that for a moment?

[00:14:41] Speaker 01:
There is a definitional paragraph that applies to the term stone.

[00:14:46] Speaker 01:
And I think we would argue that that first sentence of that paragraph, which is the sentence that Mr. Bader read, doesn't give the full picture of that term because that paragraph continues.

[00:14:58] Speaker 01:
And I'm looking here.

[00:15:00] Speaker 01:
This is at A47 of the appendix.

[00:15:02] Speaker 01:
And the paragraph that we're talking about begins at column 5, line 56 of the patent.

[00:15:09] Speaker 01:
It says the term stowed is used here and means a stator position of a component of the reformer which collapses the overall volume of the reformer to a minimum insofar as it may be affected by the component.

[00:15:19] Speaker 01:
But that paragraph continues.

[00:15:20] Speaker 01:
It says in other words.

[00:15:22] Speaker 01:
And then it proceeds to provide certain illustrations of how that term would be used in practice.

[00:15:27] Speaker 01:
And it speaks to stowing the components for purposes of storage.

[00:15:31] Speaker 01:
It speaks to stowing the components for purposes of transport.

[00:15:35] Speaker 01:
I would actually direct the court briefly to

[00:15:38] Speaker 01:
This is at A45, the appendix column two, beginning at line 35.

[00:15:43] Speaker 01:
Sure.

[00:15:44] Speaker 03:
Well, before you move on, I mean, you just summarized a bunch of stuff here.

[00:15:51] Speaker 03:
But it says, a component translated into a stowed position in practical terms is no longer reachable for the same purchase achieved by the user in the position on the reformer from which she gained the purchase when the component was deployed.

[00:16:05] Speaker 03:
That's certainly true.

[00:16:06] Speaker 03:
When the handles are lower, they're not fully accessible at the same range, but they're still accessible for the user.

[00:16:13] Speaker 03:
The handles in this picture, unlike in your product, which involve a cable, are

[00:16:19] Speaker 03:
In the patent, they're demonstrated as recessed bars, like think of a bench.

[00:16:24] Speaker 03:
That's what I think of, like a bench press or something.

[00:16:26] Speaker 03:
And so they're just bars and they're recessed.

[00:16:28] Speaker 03:
That's like doing push-ups on your knees versus push-ups on your feet, or doing planks on your elbows versus on your hands extended.

[00:16:34] Speaker 03:
Those handles are still fully accessible for use on the entire machine when they're in their stowed position.

[00:16:40] Speaker 03:
The whole machine could otherwise not be stowed.

[00:16:43] Speaker 03:
Those handles are stowed, but they're still fully accessible, at least in the description in the patent, and can be used as the exercise machine is intended to be used.

[00:16:52] Speaker 01:
Well, I think that there's a very important point to be drawn there, which is that when the patentee wanted to connote that a given ergonomic purchase was available and intended for use for performing exercises by means of the reformer,

[00:17:05] Speaker 01:
They had at their disposal a very particular term, a very precise term that connoted exactly that.

[00:17:10] Speaker 01:
And of course, that was the term deployed.

[00:17:12] Speaker 01:
So if the patentee wanted to express that the handles, in your example, in their fully depressed position, were available and intended for use as a purchase by a user exercising by means of the reformer, I think one would expect them to label the handles in that configuration both stowed and deployed.

[00:17:30] Speaker 03:
They're stowed in the sense that... But that's only true if those two concepts are somehow at odds with each other or opposites of each other.

[00:17:40] Speaker 03:
Isn't there room for stowed being somehow different than deployed but not completely and always the opposite of deployed?

[00:17:51] Speaker 03:
I mean, that's the district court construction and your construction that you're proposing has these two things as opposites to each other.

[00:17:59] Speaker 03:
Correct.

[00:18:00] Speaker 03:
positive that that's the way I read these definitions.

[00:18:03] Speaker 01:
Sure and I appreciate that and I think there's other other evidence in the intrinsic record and in the specification that illuminates that issue and where I might point the court is to A 48 of the appendix and we're at column 8 beginning at line 3 and it says more detailed examples of the mechanical means for translating each of the ergonomic purchases from their stowed

[00:18:26] Speaker 01:
to their deployed positions are provided below.

[00:18:29] Speaker 01:
Now, what that statement... Just say again what you're reading.

[00:18:33] Speaker 01:
Sure.

[00:18:33] Speaker 01:
It's column 8.

[00:18:35] Speaker 01:
This is at A48 of the appendix.

[00:18:38] Speaker 01:
And it's column 8 beginning at line 3.

[00:18:41] Speaker 01:
And it says, more detailed examples of the mechanical means for translating each of the ergonomic purchases from their stowed to their deployed positions are provided below.

[00:18:52] Speaker 01:
In our view, that clearly expresses the patentee's intent that you actually have to physically move a given ergonomic purchase from its stowed to its deployed position.

[00:19:01] Speaker 01:
And consequently, these two configurations can't exist concurrently.

[00:19:05] Speaker 03:
No, it's not that they can exist concurrently.

[00:19:08] Speaker 03:
You move one from the stowed to the deployed position, but they could both exist and be used for exercise.

[00:19:14] Speaker 03:
That's what I'm not following.

[00:19:16] Speaker 03:
You misunderstand.

[00:19:18] Speaker 03:
Why can't you use this machine for its intended purpose, for example, when the handles are shown in Figure 10 to be stowed?

[00:19:26] Speaker 01:
Sure.

[00:19:26] Speaker 01:
And I might, because I think the handle argument and their argument, the bench as a seat, are very similar in that respect.

[00:19:32] Speaker 01:
I might go to the bench as a seat argument, if I could briefly, because I think that argument fails for three principal reasons.

[00:19:38] Speaker 01:
Certainly, the first of which is that if the patent team wanted to express that the rotatable bench as shown in Figures 8 and 10 was intended to be used,

[00:19:47] Speaker 01:
They would have labeled it deployed and stowed, and that would have cleared up this ambiguity.

[00:19:51] Speaker 01:
It would have told us that these aren't mutually exclusive terms, that these terms aren't terms of opposition, but they didn't label it that way.

[00:19:58] Speaker 01:
And the second reason that that argument fails, the bench is a seat argument, is because the district court construed ergonomic purchase to mean a surface designed for contacting by a human engaged in exercise while mounted on the moving carriage.

[00:20:13] Speaker 01:
to achieve stability.

[00:20:14] Speaker 01:
Now that while mounted on the moving carriage language is critical here because clearly if someone's sitting on the bench, they're not mounted on the moving carriage.

[00:20:22] Speaker 01:
And so the bench wouldn't even constitute an ergonomic purchase as that term has been construed.

[00:20:28] Speaker 01:
And I need to emphasize at this point that the term ergonomic purchase, the construction of that term has not been challenged here on appeal.

[00:20:35] Speaker 01:
The construction of deployed has not been challenged here on appeal.

[00:20:38] Speaker 01:
And I think it's worth maybe circling.

[00:20:40] Speaker 03:
Oh, and they're seated on the bench, but, you know, you saw the pictures in the blue brief.

[00:20:45] Speaker 03:
Sure.

[00:20:45] Speaker 03:
You can be both on the carriage and have a foothold on the bench.

[00:20:49] Speaker 03:
Absolutely.

[00:20:49] Speaker 03:
And be operating the machine.

[00:20:50] Speaker 03:
Let's talk about those pictures.

[00:20:52] Speaker 03:
Even though that is clearly not disclosed anywhere in the specification, but you could nonetheless do that.

[00:20:57] Speaker 01:
I agree.

[00:20:57] Speaker 01:
And I think we should talk about those pictures, because there's a couple important points to make about them.

[00:21:02] Speaker 01:
The first of which is, as counsel has acknowledged,

[00:21:05] Speaker 01:
That image didn't even come into existence until after this case was filed, meaning that type of evidence would not have even been available to the hypothetical person of ordinary skill in the art, trying to ascertain what the term stowed meant in the context of this patent.

[00:21:19] Speaker 01:
It wasn't even in existence.

[00:21:21] Speaker 01:
Secondly, you know, I think that there's a bias issue that plagues that image in particular.

[00:21:26] Speaker 02:
Doesn't that corroborate what looks at the specification about being able to use the bench while it's in the stowed position?

[00:21:34] Speaker 01:
Well, I want to be clear on that point.

[00:21:35] Speaker 01:
It never says that the bench can be used for exercise in the stowed configuration.

[00:21:39] Speaker 01:
It says it can be used as a seat.

[00:21:41] Speaker 01:
It does say someone could sit on it.

[00:21:43] Speaker 01:
But to kind of tease out that argument, I want to direct the court, actually, to figure three, if I could, frankly,

[00:21:50] Speaker 01:
which is A31 of the appendix.

[00:21:54] Speaker 01:
And what you'll see in this figure is it illustrates the ballet bar, which is identified by reference numeral 49 in its stowed configuration.

[00:22:03] Speaker 01:
Now what you see, the only portion of the ballet bar that's actually visible here is the horizontal crossbar aspect of it.

[00:22:09] Speaker 01:
It's at the bottom left of figure three, element 49.

[00:22:12] Speaker 01:
Now someone could sit on that.

[00:22:14] Speaker 01:
There's a flat platform there.

[00:22:16] Speaker 01:
Someone could conceivably use the ballet bar as a seat in that stowed configuration,

[00:22:20] Speaker 01:
However, I don't think that that supports the proposition that the ballet bar is intended for exercising use by means of the reformer simply because someone could sit on it in that configuration.

[00:22:44] Speaker 01:
I guess moving along, the critical aspect of the district court's construction is that

[00:22:49] Speaker 01:
The patent unmistakably presents these terms, stowed and deployed, as opposing terms, mutually exclusive terms.

[00:22:56] Speaker 01:
There's not a single indication anywhere in the entire intrinsic record demonstrating that a given ergonomic purchase could be concurrently stowed and deployed.

[00:23:06] Speaker 03:
Consequently, because the definitions expressly made in the spec are different, deployed uses the intent

[00:23:17] Speaker 03:
clearly and unmistakably in the definition at column five.

[00:23:21] Speaker 03:
And Stode does not.

[00:23:22] Speaker 03:
Stode is all about the smallest possible footprint of the device.

[00:23:27] Speaker 03:
We're talking about the smallest possible physical size.

[00:23:32] Speaker 01:
I would point the court to the end of that definitional paragraph where it notes that, I think it says, contemporary dictionary definitions of the term Stode used in this mechanical sense may apply equally to the use of the term throughout this disclosure.

[00:23:44] Speaker 01:
So what that tells us is a couple things.

[00:23:46] Speaker 01:
It tells us that the very first sentence in that paragraph isn't necessarily the end-all be-all when it comes to what stowed means.

[00:23:53] Speaker 01:
It says that you can consult other sources to try and ascribe a meaning to that term.

[00:23:58] Speaker 03:
Not to ascribe a meaning.

[00:24:00] Speaker 03:
You can consult other course, other contemporary dictionary definitions in the mechanical sense.

[00:24:06] Speaker 03:
Sure.

[00:24:08] Speaker 03:
which is elucidated by the prior paragraph clearly involves the size of the reformer and the location of the components when they are stowed.

[00:24:20] Speaker 01:
I would note that one reformer itself has perhaps interpreted that passage differently than maybe the court has because they, of course, cite to the American heritage dictionary

[00:24:32] Speaker 01:
in support of the dictionary definition that they feel is most applicable in this circumstance.

[00:24:36] Speaker 03:
Right, because the one that they've cited to us relates to the mechanical aspect of the word stowed, not the intentional aspect.

[00:24:44] Speaker 03:
I mean, it's very, very strange.

[00:24:45] Speaker 03:
I understand why the district court and why you would suggest that intent be a component, but it's very strange to conceptualize

[00:24:57] Speaker 03:
intent as an aspect of a structural component in an apparatus claim, intent of use.

[00:25:05] Speaker 03:
That's a very foreign concept.

[00:25:07] Speaker 03:
Now I understand it gets sucked in because of their expressed definition of deployed.

[00:25:10] Speaker 03:
I'm just not sure that it should get sucked in given the abnormality of importing intent into an apparatus claim, intent of use, into Stode when Stode does not likewise contain that.

[00:25:22] Speaker 01:
I fully appreciate that position, and I, of course, agree that it is somewhat of a bizarre way to express a mechanical device.

[00:25:28] Speaker 01:
In effect here, what we have is the term ergonomic purchase in asserted claims 11 and 15 is a purely functional term.

[00:25:36] Speaker 01:
We don't know anything about what that structure is in the asserted claims.

[00:25:39] Speaker 01:
All that we know is what it does.

[00:25:41] Speaker 01:
We know that it's translatable between these two configurations that, of course, must be ascribed different meanings.

[00:25:49] Speaker 01:
Incidentally,

[00:25:51] Speaker 01:
The asserted claims 11 and 15 should be contrasted with the non-asserted independent claims of this patent and suit that actually do express structure for the term ergonomic purchase.

[00:26:00] Speaker 01:
In independent claim one, it says where in the ergonomic purchase comprises the rotatable bench.

[00:26:06] Speaker 01:
But the fact of the matter remains, this is the way that the patentee chose to express their invention, was through intended use.

[00:26:13] Speaker 01:
I agree, it's perhaps not the best way to have gone about this.

[00:26:16] Speaker 01:
This might have been a much easier analysis had they actually defined it structurally, which I think they perhaps could have done unless the prior art would have precluded the patentability of the invention had they sought to describe it in a structural fashion.

[00:26:31] Speaker 04:
Can I ask you what passages in the specification other than the column 8 top passage indicate to you

[00:26:46] Speaker 04:
central premise that we can't be both deployed and stowed.

[00:26:54] Speaker 02:
Sure.

[00:26:55] Speaker 04:
Because I take it is the central premise because the definition of deployed is a state or position of a component of the reformer in which the component is intended to be used by user exercising by means of the reformer, not just

[00:27:13] Speaker 04:
It doesn't say the state or something like that.

[00:27:15] Speaker 04:
So any state would qualify.

[00:27:19] Speaker 01:
Sure.

[00:27:19] Speaker 01:
Absolutely.

[00:27:20] Speaker 01:
So I think there are.

[00:27:21] Speaker 04:
And that's the opposite of that.

[00:27:22] Speaker 04:
Of course.

[00:27:22] Speaker 04:
Would be what the district court said.

[00:27:24] Speaker 01:
Sure.

[00:27:25] Speaker 01:
So I guess maybe a good place to start, as it always is, is in the claims themselves.

[00:27:30] Speaker 01:
I would direct the court to A51 of the appendix.

[00:27:33] Speaker 01:
And we can look to dependent claim seven.

[00:27:37] Speaker 01:
It's in column 13.

[00:27:38] Speaker 01:
It says that reform of claim fixed configured so that the translation of the ergonomic purchase

[00:27:43] Speaker 01:
from the stowed to the deployed position requires sliding the jump board.

[00:27:48] Speaker 01:
Again, it's reflecting this notion that there has to be a translation, actual physical movement from one configuration to the other, from stowed to deployed.

[00:28:00] Speaker 01:
You have to physically move each of these various components between those two configurations.

[00:28:06] Speaker 01:
There's also a passage at

[00:28:09] Speaker 01:
We talked a bit about this.

[00:28:11] Speaker 01:
It's actually within the definitional paragraph for stowed.

[00:28:14] Speaker 01:
And I'm here at A47 of the appendix and at column 5, lines 63 through 67.

[00:28:20] Speaker 01:
It says, a component translated to the stowed position and continues is no longer reachable for the same purchase achieved by a user in the position on the reformer from which you gained the purchase when the component was deployed.

[00:28:33] Speaker 01:
Again, that's expressing the fact that a given component can't concurrently exist in stowed

[00:28:39] Speaker 01:
and deployed configurations.

[00:28:41] Speaker 01:
And so it ultimately boils down to really a logic game, is what we have here, is that we have these two opposing mutually exclusive configurations.

[00:28:49] Speaker 01:
If deployed is taken to mean the intended use state, it follows that Stowed would reflect a position of non-intended use.

[00:28:57] Speaker 01:
And I think we looked at some of the exemplary purchases.

[00:28:59] Speaker 01:
Certainly the jump board, I think, maybe provides the clearest indication.

[00:29:05] Speaker 03:
OK, Mr. Barnett, we are out of time.

[00:29:07] Speaker 03:
Thank you very much for your time.

[00:29:21] Speaker 00:
When you look at the full term, or that full paragraph of the definition of stowed, I think the other place that shows that the component actually can be used

[00:29:33] Speaker 00:
while in the still position is that is the sentence can be used is not the issue intended to be used is that it sure intended to be used is a component translated the third sentence the third sentence of the definition the term stowed it's at uh... starting at column five line sixty three

[00:30:01] Speaker 00:
A component translated to a stowed position in practical terms is no longer reachable for the same purchase achieved by the user in the position which the reformer from which she gained the purchase when the component was deployed.

[00:30:14] Speaker 00:
So that is actually implying that when you move the reformer into the stowed position, it is available for a different purchase.

[00:30:22] Speaker 00:
Different purchase is simply a frictional point or something where you can use the machine to do exercise.

[00:30:30] Speaker 00:
I think that actually supports the fact that what the district court did was wrong.

[00:30:35] Speaker 00:
It shouldn't have said the stowed position is not intended for use.

[00:30:40] Speaker 04:
Sure.

[00:30:41] Speaker 04:
Is it your view that the same position can be both a stowed position and a deployed position?

[00:30:48] Speaker 00:
No, I think the device has to at least have two positions, one of which meets the definition of deployed and one of which meets the definition of stowed.

[00:30:58] Speaker 00:
So I don't think one single position can meet

[00:31:01] Speaker 00:
Both of those definitions.

[00:31:02] Speaker 04:
That's correct.

[00:31:03] Speaker 04:
Then why doesn't Judge Rayclough's construction follow immediately?

[00:31:07] Speaker 04:
Because the definition of deployed is the term deployed as used herein means a state or position of a component of the reformer in which the component is intended to be used by a user exercising by means of the reformer.

[00:31:21] Speaker 04:
So if there were a stowed position

[00:31:27] Speaker 04:
intended to be used for exercise, it would then be a deployed position.

[00:31:33] Speaker 00:
I disagree.

[00:31:33] Speaker 00:
I think if you look at both, looking at the definition of deployed means a stator position of a component of the reformer in which the component is intended to be used.

[00:31:43] Speaker 00:
Now, once you get to the second position, that has to be a second position that then minimizes the volume of the reformer according to the definition of deployed.

[00:31:55] Speaker 00:
There still has to be two separate positions.

[00:31:58] Speaker 00:
And once you're in the deployed state, excuse me, stowed state, that same position cannot be considered to be a deployed state.

[00:32:09] Speaker 00:
I think the last point is if the inventor here had wanted to define stowed as not being intended for use,

[00:32:22] Speaker 00:
It's a very clear way to do it.

[00:32:23] Speaker 00:
The definition of deployed, which immediately precedes it, says that it is intended for use.

[00:32:28] Speaker 00:
If the definition of stowed was meant to be the opposite of that, we would have seen something that said the term stowed, as used herein, means a stator position of the

[00:32:37] Speaker 00:
component of the reformer in which the component is not intended to be used.

[00:32:41] Speaker 03:
And that simply doesn't take place.

[00:32:43] Speaker 03:
I'm confused.

[00:32:43] Speaker 03:
Your answers to Judge Toronto's most recent questions seem to be quite inconsistent with the position that you need to achieve to prevail in this case.

[00:32:55] Speaker 03:
So let me go back over it with you, because if you think deployed and stowed are mutually exclusive,

[00:33:05] Speaker 03:
that you can't be both stowed and deployed at any point, then how do you prevail?

[00:33:12] Speaker 03:
Because in order to prevail, you want me to say something can be stowed and still be intended for use.

[00:33:20] Speaker 03:
That's what you need to get to to prevail.

[00:33:24] Speaker 03:
Something can be stowed if it's in its minimal position.

[00:33:28] Speaker 03:
So it's irrelevant whether it's intended for use or not.

[00:33:30] Speaker 03:
So that means it can be stowed if it's in this

[00:33:33] Speaker 03:
minimal physical space position, and is still intended for use that way.

[00:33:38] Speaker 03:
If the only definition of deployed is intended for use, and if your view of stowed is it has nothing to do with intent, do you see the problem?

[00:33:47] Speaker 03:
Do you see the problem with this that you've created right now?

[00:33:50] Speaker 00:
I guess I shouldn't be using the term mutually exclusive.

[00:33:57] Speaker 00:
In order to meet the definition of stowed, you simply have to be in a position that

[00:34:02] Speaker 00:
minimizes the use of the... minimizes the volume of the reformer.

[00:34:06] Speaker 00:
That's what the expressed definition says.

[00:34:08] Speaker 03:
But you still could have... that position could still result, in your view, in a position in which it is intended that the user could exercise.

[00:34:19] Speaker 00:
It could be or it could not be.

[00:34:21] Speaker 00:
I think it's an irrelevant... I think it's an irrelevant inquiry.

[00:34:25] Speaker 00:
But it could be.

[00:34:26] Speaker 03:
So they're not mutually exclusive if, I understand your argument, because

[00:34:32] Speaker 03:
If they're mutually exclusive, then STOAD can never include intent to use when it's in that physical position.

[00:34:39] Speaker 00:
I'm sorry, I think I probably misspoke.

[00:34:41] Speaker 00:
As long as you have, meet the definition of STOAD, then once you have a position that is also available or intended for use, that's a separate deployed position.

[00:34:55] Speaker 00:
I don't think they're mutually exclusive.

[00:34:57] Speaker 03:
Okay, I think we should end there.

[00:35:00] Speaker 03:
I thank both counsel for their argument.

[00:35:02] Speaker 03:
This case is taken.