[00:00:47] Speaker 02:
Next case is Altair Instruments versus Kelly West Enterprises, 2017, 1194, and 1284.

[00:00:55] Speaker 02:
Mr. Oynas?

[00:00:56] Speaker 02:
Yes, thank you, Your Honor.

[00:01:18] Speaker 00:
Morning.

[00:01:19] Speaker 00:
May it please the court, counsel, Ronald Innes of Rutan and Tucker for the Appellant and Cross-Appellate Altair Instruments, Inc.

[00:01:29] Speaker 00:
I'd like to first address the issue of collateral estoppel.

[00:01:36] Speaker 00:
Your Honors, there are no cases that have been cited and there are none that I'm aware of in which the Ninth Circuit has held that is proper to apply collateral estoppel

[00:01:48] Speaker 00:
to an interlocutory order that has not been appealed or was not appealable.

[00:01:54] Speaker 01:
The open case is that we need to figure out if it's sufficiently firm for collateral estoppel purposes, which then maybe opens up the door to perhaps decisions being made that, based on the character of the process of the decision, one could say that it is sufficiently firm.

[00:02:18] Speaker 00:
The Lubin case also, Your Honor, and this is very important, relied on the restatement of judgments, section 13, comment G in particular, and in fact highlighted, literally highlighted the section of that comment that asked whether the interlocutory order was appealed or was subject to appeal.

[00:02:42] Speaker 00:
and found, of course, that it was not proper to apply collateral estoppel in that case.

[00:02:47] Speaker 02:
But that issue was determined.

[00:02:50] Speaker 02:
That microdermabrasion was added in response to a rejection over Kim.

[00:02:59] Speaker 02:
And that issue was finally decided.

[00:03:02] Speaker 02:
And so why shouldn't you be collateral estoppel?

[00:03:05] Speaker 00:
Well, Your Honor, I respectfully disagree that it was not finally decided for purposes of applying collateral estoppel.

[00:03:11] Speaker 00:
And I think that's what

[00:03:12] Speaker 00:
Lubin stands for and what the cases in the NICE circuit that have followed Lubin stand for.

[00:03:18] Speaker 00:
The Lubin court also, if you read the opinion, not only relied on, I think heavily relied on the particular comment G to section 13, which again asked whether the interlocutory order was subject to appeal or was appealed.

[00:03:35] Speaker 00:
The Lubin court went on to say that it was convinced that the party in that case, the

[00:03:42] Speaker 00:
did not have a full and fair opportunity to appeal the earlier ruling.

[00:03:48] Speaker 00:
And therefore, collateral estoppel didn't apply.

[00:03:50] Speaker 00:
And the Lubin case was relying on the Park Lane Hosiery case, which is a Supreme Court case, for that statement.

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And if you look at the cases that have come since Lubin in the Ninth Circuit, you've got additional cases that are relying on Lubin for the proposition that collateral estoppel

[00:04:12] Speaker 00:
can't apply to an interlocutory order that's not appealable or was not appealed.

[00:04:18] Speaker 00:
And that's the St.

[00:04:20] Speaker 00:
Paul case specifically cited Lubin for that proposition.

[00:04:25] Speaker 01:
The appealability here of Judge Wu's prior intervening rights order was interrupted by your settlement of that case, right?

[00:04:40] Speaker 00:
Correct.

[00:04:41] Speaker 01:
And so I guess I'm wondering, you could have sought an order vacating the intervening rights order as a condition for the settlement in that case.

[00:04:59] Speaker 00:
We could have, Your Honor, but I would point to both Ninth Circuit and Federal Circuit cases in this area, which essentially say the failure to

[00:05:09] Speaker 00:
take an action, for instance, to seek an appeal of an interlocutory order before final judgment.

[00:05:15] Speaker 00:
The failure to do that does not change the collateral estoppel analysis.

[00:05:20] Speaker 00:
And the Federal Circuit said that in the Verdun case and also in the InterConnect case.

[00:05:27] Speaker 00:
The Ninth Circuit has said it in the St.

[00:05:29] Speaker 00:
Paul case.

[00:05:31] Speaker 00:
So I think the courts have been fairly consistent that although, yes, we could have done that or we could have

[00:05:37] Speaker 00:
sought an interlocutory appeal, we didn't do that.

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But the courts have said you don't punish a party for not doing that.

[00:05:45] Speaker 01:
Alternatively, we have in front of us the independent question of whether in fact there was a narrowing amendment here during the second re-exam that's been fully briefed and argued before us.

[00:06:01] Speaker 01:
And so I guess the question is why wasn't there

[00:06:07] Speaker 01:
a narrowing here when the specification defines microderm abrasion quite broadly.

[00:06:17] Speaker 01:
It defines it to include dermabrasion, which I found befuddling.

[00:06:22] Speaker 01:
But then it also said the removal of dead skin cells.

[00:06:26] Speaker 01:
And then in the second re-exam, when the term is actually added to the claim, in the response to the office action, it was made clear that

[00:06:37] Speaker 01:
It doesn't include exfoliation.

[00:06:40] Speaker 01:
I know you might have an argument that says that that's not a right reading, but let's just assume for the moment that that's how I read it.

[00:06:51] Speaker 01:
Then why isn't that a narrowing of the claim, which was more open-ended, that permitted something broader and that likely did include exfoliation?

[00:07:07] Speaker 00:
Well, Your Honor, I think, first of all, I do disagree that that's a proper reading of that, but understanding your estimate is accept that.

[00:07:16] Speaker 00:
The specification of the 739 patent always made clear that microdermabrasion, which it did in one place in the 739 patent, did say also referred to as dermabrasion, but the

[00:07:37] Speaker 00:
microdermabrasion as claimed in the patent, the specification says that it is the process of removal of cells from the epidermis and you do this without damaging the dermis.

[00:07:50] Speaker 00:
So that has been the definition from the beginning.

[00:07:52] Speaker 00:
Now exfoliation, I think it's generally well accepted and we've cited to our expert in the report, but exfoliation is a type of microdermabrasion

[00:08:07] Speaker 00:
microdermabrasion is a mechanical exfoliation.

[00:08:12] Speaker 00:
And so I don't think the inventor was disclaiming exfoliation, because that would really be impossible.

[00:08:23] Speaker 00:
I mean, exfoliation is the sort of removal of skin.

[00:08:28] Speaker 00:
And you can do that in many ways.

[00:08:29] Speaker 00:
There are exfoliation brushes.

[00:08:31] Speaker 00:
There are exfoliation creams that have kind of a sand in them, if you will.

[00:08:37] Speaker 00:
microdermabrasion also exfoliates.

[00:08:42] Speaker 00:
So I don't think the inventor was excluding exfoliation.

[00:08:47] Speaker 00:
They're not mutually exclusive.

[00:08:49] Speaker 00:
And so I hope I've answered your question.

[00:08:52] Speaker 00:
I've tried to.

[00:08:52] Speaker 00:
But if you look at the evidence kind of dealing with the issue of infringement now, but it's really never been disputed that microdermabrasion is a type of mechanical exfoliation.

[00:09:08] Speaker 00:
Presser's own product literature makes that clear.

[00:09:13] Speaker 00:
And so I think what the inventor was doing in describing these various skin procedures was saying you have exfoliation and when the exfoliation is discussed, there's no discussion of like a structure of how you would do that.

[00:09:27] Speaker 00:
It's just saying, you know, it's kind of removal of skin by gently scraping of the skin.

[00:09:33] Speaker 00:
But then talked about microdermabrasion as having the specific structure

[00:09:38] Speaker 00:
of attaching an abrasive to the tube and essentially exfoliating the skin that way.

[00:09:49] Speaker 00:
And so the reason, Your Honor, that we don't think that intervening rights apply here, and we are hopeful that the court will reverse on collateral estoppel and actually rule on the intervening rights, that's really all we want.

[00:10:04] Speaker 00:
We want to have one opportunity to appeal that

[00:10:07] Speaker 00:
substantive ruling.

[00:10:09] Speaker 00:
And if you look at the specification, which I discussed briefly, but there are other parts of the specification that I think are key, where the inventor talks about the device for microdermabrasion, and the invention provides the capability to perform microdermabrasion.

[00:10:29] Speaker 00:
As you know, this patent has been vetted three times now.

[00:10:33] Speaker 00:
And in the first re-examination,

[00:10:35] Speaker 00:
the inventor again continued to say that quote-unquote the claimed invention is a device for microdermabrasion.

[00:10:44] Speaker 00:
During the second re-examination even the examiner never took the position that this patent is somehow more broad than microdermabrasion or more broad than removing the epidermis without damaging the dermis.

[00:11:01] Speaker 00:
Rather what the examiner was saying is

[00:11:04] Speaker 00:
We think the Kim patent discloses a device that does that.

[00:11:11] Speaker 02:
That's the claims were allowed over Kim after the amendment.

[00:11:16] Speaker 02:
So the amendment had to have done something.

[00:11:19] Speaker 00:
Well, I think it's similar to the convolt case, Your Honor, which the amendments were made after a rejection based on prior art.

[00:11:32] Speaker 00:
And the amendments were made.

[00:11:34] Speaker 00:
And this court, I believe Judge Hughes wrote that opinion.

[00:11:38] Speaker 00:
This court said that that was not a narrowing because you don't necessarily have a narrowing even though an amendment is made in response to prior art.

[00:11:48] Speaker 00:
And Your Honor, I will point out that Altair was consistent during the second re-examination.

[00:11:53] Speaker 00:
Altair specifically said, after repeatedly arguing our patent is limited to microdermabrasion, Kim doesn't perform microdermabrasion,

[00:12:03] Speaker 00:
The patent examiner finally agreed with that.

[00:12:07] Speaker 00:
And Altair specifically said, we'll specifically add the word microdermabrasion, and we'll specifically add removal of the epidermis without damaging the dermis, to the remaining claims where those words or microdermabrasion is not already explicit.

[00:12:23] Speaker 01:
I think that examiner said that the Kim device does exfoliation.

[00:12:29] Speaker 01:
And then that's what triggered

[00:12:33] Speaker 01:
your side to add the term microdermabrasion and then specify a meaning for microdermabrasion in a very detailed way and made it clear that it's not exfoliation.

[00:12:47] Speaker 01:
And this specific definition is a different definition than the one I saw in the beginning of the specification for microdermabrasion.

[00:12:59] Speaker 00:
Your Honor, I don't believe the examiner

[00:13:01] Speaker 00:
ever said the Kim patent exfoliates.

[00:13:04] Speaker 00:
I believe Presser has taken that position.

[00:13:11] Speaker 00:
I don't believe that's in the patent examiner's statement.

[00:13:16] Speaker 00:
What the patent examiner said was this spatulated tongue cleaner or scraper could potentially perform microdermabrasion.

[00:13:29] Speaker 00:
or could potentially remove cells from the epidermis.

[00:13:33] Speaker 02:
You're into your butthole time.

[00:13:35] Speaker 02:
You wanted to save three minutes, and you're well into it.

[00:13:37] Speaker 00:
I do, Your Honor, unless there are any specific questions.

[00:13:40] Speaker 00:
I will save the rest of my butthole time.

[00:13:42] Speaker 02:
I will save it for you.

[00:13:43] Speaker 00:
Thank you.

[00:13:47] Speaker 02:
Is it Mr. Trost?

[00:13:49] Speaker 02:
It's Trost, Your Honor.

[00:13:50] Speaker 03:
Glenn Trost.

[00:13:51] Speaker 03:
Thank you.

[00:13:52] Speaker 02:
As in Crost.

[00:13:59] Speaker 03:
Perhaps an easy way to think about some of the questions that have come up is to focus on a device that removes only the dead cells, only does exfoliation.

[00:14:15] Speaker 03:
These kinds of devices come up frequently in this case, not only on the validity questions but also on infringement because our expert testified in her expert report said that

[00:14:29] Speaker 03:
the accused device does only exfoliation, it does not remove the live cells of the epidermis.

[00:14:35] Speaker 02:
You don't want to first defend collateral estoppel?

[00:14:38] Speaker 03:
Yes, and I'm getting to that.

[00:14:41] Speaker 03:
Let me jump on collateral estoppel then.

[00:14:45] Speaker 03:
The court has identified that the Lubin case in the Ninth Circuit does

[00:14:51] Speaker 03:
specifically address the rule that should apply, although in the case before, on the facts before the Ninth Circuit in Lubin, the district court had declined to use its discretion to apply collateral estoppel, and the Ninth Circuit affirmed that exercise of discretion.

[00:15:09] Speaker 03:
In the Lubin case, the government had two parallel cases going on the same tax issue.

[00:15:16] Speaker 03:
It lost in the first case, but it had not yet

[00:15:21] Speaker 03:
gotten its appeal heard, and then the Lubin case won the race to the Ninth Circuit.

[00:15:26] Speaker 03:
And the Lubin case, the district court said, well, you've already lost this issue once, but I'm going to let you litigate it again.

[00:15:35] Speaker 03:
They got up to the Ninth Circuit for review, and the taxpayer said, well, you should have applied that earlier ruling.

[00:15:43] Speaker 03:
And the Ninth Circuit said, in this circumstance, it would be unfair to do so.

[00:15:48] Speaker 03:
Now, the fairness issue

[00:15:51] Speaker 03:
is distinct from the finality issue here.

[00:15:55] Speaker 03:
The finality under the Ninth Circuit standard is a matter of discretion for the district court.

[00:16:00] Speaker 03:
It has to be sufficiently firm.

[00:16:03] Speaker 03:
And there are a number of factors that the court looks at to make that determination.

[00:16:07] Speaker 03:
If it's determined to be final, sufficiently firm, then there's a second question, assuming all the other requirements are met, and that is, is it fair in this circumstance to apply collateral stop?

[00:16:20] Speaker 03:
That's another discretionary decision for the district court that will be reviewed for abuse at the next level.

[00:16:27] Speaker 03:
So both of those issues were kind of percolating in the Lubin case and led to the Ninth Circuit agreeing that it was inappropriate to, or that the district court was within its discretion to determine that the government shouldn't be collaterally stopped in that case.

[00:16:45] Speaker 01:
The other side pointed to a comment in the restatement judgments.

[00:16:50] Speaker 03:
Yes, the Lubin Court cited to the restatement of judgments one of the comments indicates that there are some factors to consider in determining finality.

[00:17:02] Speaker 03:
And the Ninth Circuit largely adopted that in its discussion of what the district court ought to look at when determining if a decision is sufficiently firm.

[00:17:12] Speaker 03:
Now, we cited in our briefs the Security People case, which is another district court case, the Northern District of California.

[00:17:20] Speaker 03:
Judge Legge up in the Northern District, who had a case very, very similar to our facts, summary adjudication in case number one, settled before judgment was entered, and then argued that the summary adjudication ought to be applied in case number two.

[00:17:38] Speaker 02:
If we uphold the collateral estoppel holding, we don't get to intervening rights.

[00:17:42] Speaker 02:
Correct.

[00:17:44] Speaker 03:
That's correct.

[00:17:45] Speaker 03:
Because Judge Wu determined that adversely to Altair, and they

[00:17:49] Speaker 03:
never took an appeal like that.

[00:17:51] Speaker 02:
Now, you've got a cross appeal.

[00:17:52] Speaker 02:
Lots of cross appeals are sort of, by the way, and minor issues.

[00:17:56] Speaker 02:
You've got some major issues.

[00:17:58] Speaker 02:
Yes.

[00:17:59] Speaker 02:
Because you're still liable.

[00:18:00] Speaker 03:
The most interesting of the issues is the indefiniteness argument.

[00:18:08] Speaker 03:
We argued below that the apparatus claims were limited by functionality, user actions,

[00:18:19] Speaker 03:
And so we're indefinite under Williamson.

[00:18:25] Speaker 03:
And basically, after the re-examination, all of the claims, all the apparatus claims, required that the user use the device for microdermabrasion, which was now specifically designed to exclude mere exfoliation.

[00:18:42] Speaker 03:
So obviously, if you have layers of skin, the first layer is the dead cells and debris.

[00:18:47] Speaker 03:
When that's removal is exfoliation, that reveals the living cells.

[00:18:52] Speaker 03:
And then as those cells are removed, that is the new definition of microdermabrasion, different from the definition in the spec as the core has observed.

[00:19:03] Speaker 03:
But if you just have the device, just the apparatus, you don't know how it's going to be used.

[00:19:12] Speaker 03:
It could be used for mere exfoliation, in which case it would not be infringing.

[00:19:16] Speaker 03:
or it could be used for microdermabrasion, in which case it would now fall within the claims.

[00:19:23] Speaker 03:
And under Williamson, that kind of functional limitation unsupported by a specific disclosure in the specification is invalid.

[00:19:33] Speaker 01:
Is there a Federal Circuit opinion that's ever applied section 112 paragraph 6, section 112 paragraph F to the preamble of a claim?

[00:19:44] Speaker 03:
I don't have one on the top of my head, but the preamble here... As I understand it, that's what you're asking us to do.

[00:19:51] Speaker 03:
Not entirely.

[00:19:53] Speaker 03:
Now the functional limitations come both from the preamble and from the body of some of the apparatus claims.

[00:19:59] Speaker 03:
For example, claim 16 has the requirement that in use the cells of the epidermis are removed.

[00:20:09] Speaker 03:
But if we go to the prosecution history,

[00:20:13] Speaker 03:
Altair specifically argued in the re-examination that the preamble should be limiting in addition to the additional structural limitations following the word comprising, that they should be limiting in this case.

[00:20:30] Speaker 03:
And that is at

[00:20:42] Speaker 03:
pages 307 to 08 of the appendix.

[00:20:46] Speaker 03:
That's a specific argument that Altair made, which I think takes this case outside of the usual rule that the preamble is not limiting, only the limitations are limiting.

[00:20:59] Speaker 03:
So in our view, Williamson applies equally to the preambles in this case, but in any event, there are other operational limitations in the body of the limitations that follow the word comprising.

[00:21:13] Speaker 03:
So that brings this case within Williamson because there is no corresponding disclosure in the spec about how exactly that's done.

[00:21:23] Speaker 03:
And in fact, the record reveals that how much skin is taken off is entirely up to the user, and it's not a function necessarily of the device.

[00:21:34] Speaker 01:
Well, there are opinions from this court that say when there can be functional language

[00:21:41] Speaker 01:
and the functional language constitutes describing a property of some product or structure.

[00:21:49] Speaker 01:
And so maybe what's going on here is we look to be an infringing device, you have to be a device that is in fact capable or suitable for performing microdermabrasion.

[00:22:05] Speaker 01:
What's wrong with that?

[00:22:06] Speaker 03:
That would have been a plausible interpretation, but it was not the one adopted by the district court, and frankly I don't think it was one that was pursued during the re-examination.

[00:22:20] Speaker 03:
The argument in the re-examination was that the device had to be used to remove living cells of the epidermis, and that restriction

[00:22:33] Speaker 03:
was placed in the claims that it says a device for microdermabrasion with this microdermabrasion having the new definition.

[00:22:43] Speaker 03:
And then moreover, as I've indicated, the limitations themselves then go on to say during use, living cells are removed from the epidermis.

[00:22:55] Speaker 03:
In addition, that kind of use restriction runs afoul of this court's opinions.

[00:23:02] Speaker 03:
in the IPXL case and the other cases we've cited where an apparatus claim is limited in part by user actions.

[00:23:13] Speaker 03:
So that's the main issue on the cross appeal.

[00:23:18] Speaker 03:
The remaining issues have to do with, there were just fact issues created with respect to infringement and validity.

[00:23:26] Speaker 03:
Again, the accused device removed only dead cells, did not remove

[00:23:32] Speaker 03:
living cells.

[00:23:34] Speaker 03:
The district court found in that, well, it does microdermabrasion, which must mean it removes cells from the epidermis.

[00:23:45] Speaker 03:
And so therefore, it infringes.

[00:23:47] Speaker 03:
But at the same time, he rejected prior art such as Shirley because there was no suggestion that it removed the epidermis.

[00:23:55] Speaker 03:
It only removed dead cells.

[00:23:59] Speaker 03:
We have a situation here.

[00:24:00] Speaker 03:
I see I'm in my rebuttal time.

[00:24:02] Speaker 03:
I'll try to tie this up.

[00:24:04] Speaker 03:
We have a situation where the claim construction that we were facing was fluid.

[00:24:09] Speaker 03:
It depended on whether we were arguing about infringement or arguing about fluidity.

[00:24:14] Speaker 01:
Where in a claim construction did the court say that microdermabrasion entails removal of live cells?

[00:24:25] Speaker 03:
In respect in the courts,

[00:24:28] Speaker 03:
discussion and rejection of the Shirley Priorit patent.

[00:24:34] Speaker 03:
And that's at page 3301 of the appendix.

[00:24:40] Speaker 03:
He rejected that by saying there's no suggestion that Shirley discloses removal of the epidermis.

[00:24:47] Speaker 03:
It's only for removing dead cells on the surface.

[00:24:51] Speaker 03:
And our expert had in a declaration or expert reports on both invalidity

[00:24:57] Speaker 01:
And that could be interpreted as meaning that whatever Shirley is doing, it is simply too light of a touch to be regarded as microdermabrasion without necessarily microdermabrasion needing to be removing live cells from the epidermis.

[00:25:21] Speaker 03:
That may be so, Your Honor, but from our perspective,

[00:25:27] Speaker 03:
key point is that both the accused device, according to the expert, both the accused device and the prior art did the same thing, just remove dead cells.

[00:25:36] Speaker 03:
And we were found both to infringe and the prior art not to anticipate, which is inconsistent.

[00:25:41] Speaker 01:
Real quickly, does Shirley have abrasive material?

[00:25:44] Speaker 03:
It has a beveled edge, which the patent, the specification indicates is one form of abrasive material that could be employed in the patented device.

[00:25:55] Speaker 03:
So it has a kind of a sharp beveled edge that scrapes rather than a fine powder.

[00:26:02] Speaker 03:
But the specification contemplates that.

[00:26:06] Speaker 03:
It does?

[00:26:08] Speaker 03:
Yes, I'd be happy to bring that to your attention.

[00:26:11] Speaker 03:
If not today, I'll send a short letter in accordance with the court's rules.

[00:26:14] Speaker 03:
But I'll reserve the balance.

[00:26:16] Speaker 02:
We will do that, Mr. Trost.

[00:26:18] Speaker 02:
I have to tell you, though, that your remaining time, if you don't use it now, would be limited to rebuttal and the cross-appeal.

[00:26:27] Speaker 02:
And that depends upon what Mr. Oynes has to say.

[00:26:32] Speaker 02:
So we'll hear from Mr. Oynes now.

[00:26:36] Speaker 00:
Thank you, Your Honor.

[00:26:39] Speaker 00:
This issue of dead and living cells is a red herring.

[00:26:44] Speaker 00:
Dead and living cells wasn't discussed in the prosecution history.

[00:26:48] Speaker 00:
I don't believe it was discussed in Judge Reel's order.

[00:26:52] Speaker 00:
The question is whether you remove cells from the epidermis without damaging the dermis.

[00:26:57] Speaker 00:
And I wanted to make one point, which does go a little bit to both the non-infringement argument, but also can be relevant to intervening rights, and that is

[00:27:13] Speaker 00:
Presser has relied on this statement and this sort of definition during the secondary examination by the inventor.

[00:27:20] Speaker 00:
I'm sorry, by Mr. Walker, who's not the inventor.

[00:27:22] Speaker 00:
He was the later owner of the company.

[00:27:26] Speaker 00:
But he describes what microdermabrasion is.

[00:27:29] Speaker 00:
And he describes exactly Presser's device.

[00:27:34] Speaker 00:
And so to argue, based on that, that somehow Altair disclaimed that device just doesn't make any sense.

[00:27:42] Speaker 00:
It specifically talks about macrodermabrasion is, in this patent, macrodermabrasion is the attachment of the abrasive, as Jen recognized with this question a moment ago, permanent attachment of an abrasive to the treatment tip.

[00:27:57] Speaker 00:
The Shirley device does not disclose a permanently attached abrasive to the tip.

[00:28:04] Speaker 00:
The Shirley device discloses a, I think it refers to it as a cup, or the edge of a cup.

[00:28:10] Speaker 00:
There's no abrasive attached to it.

[00:28:12] Speaker 00:
And in fact, in terms of the prior art that Presser has relied on in this case, the only prior art that actually had an abrasive attached to it was the drill bit for drilling marble and stone that Judge Real rightly found was not analogous art.

[00:28:31] Speaker 00:
The only other two references, Shirley and Brenner, absolutely have no abrasive attached.

[00:28:36] Speaker 00:
And that was the key.

[00:28:37] Speaker 00:
One of the key things of Mr. Walden's invention was you take the abrasive and you actually apply it

[00:28:42] Speaker 00:
to the treatment end, then you don't have to have these crystals that was the prior microdermabrasion art.

[00:28:49] Speaker 00:
If I can just quickly address Williamson, the argument of indefiniteness on Williamson, I think Judge Real correctly found that unlike Williamson, there is a lot of structure to perform the functional microdermabrasion disclosed in all of these claims.

[00:29:08] Speaker 00:
And so Williamson is not

[00:29:12] Speaker 00:
persuasive.

[00:29:13] Speaker 00:
In IPXL, I think the issue there and some other cases was that the claim language actually included user action.

[00:29:21] Speaker 00:
That's not the case here, and so those don't apply.

[00:29:23] Speaker 00:
And finally, just if I can close on collateral estoppel to sort of circle back.

[00:29:29] Speaker 00:
I think it's important to note that this court, when it ruled in the Verdun case, applying Seventh Circuit law, specifically noted that Verdun

[00:29:39] Speaker 00:
relies, or I'm sorry, Seventh Circuit relies on this restatement, Section 13, Comment G. Again, that's the exact same restatement section, Comment G, that the Ninth Circuit relied on in Lubin and has continued to rely on.

[00:29:53] Speaker 00:
And the standard of review, we believe, is de novo.

[00:29:59] Speaker 00:
Since Lubin, the Ninth Circuit, in both Bates and the McKeon case that we cited, has specifically

[00:30:06] Speaker 00:
whether collateral estoppel is available is reviewed de novo.

[00:30:10] Speaker 00:
Now, based in Guandisay.

[00:30:12] Speaker 02:
Thank you, Mr. Orness.

[00:30:13] Speaker 02:
The court has intervening rights, and we intervene to exercise the right to terminate your arguments.

[00:30:20] Speaker 00:
Thank you.

[00:30:21] Speaker 00:
I appreciate your consideration.

[00:30:23] Speaker 02:
Thank you.

[00:30:24] Speaker 02:
Mr. Trost has a little rebuttal time, only in the cross appeal.

[00:30:28] Speaker 03:
Your Honor, I'm happy to answer any questions the court might have.

[00:30:32] Speaker 03:
Otherwise, I'll surrender the balance of my time.

[00:30:35] Speaker 03:
And I will find that site for the court and send it along in accordance with the rules.

[00:30:40] Speaker 02:
Thank you, Mr. Trout.

[00:30:41] Speaker 02:
Thank you.

[00:30:41] Speaker 02:
We'll take the case on revised.