[00:00:33] Speaker 01:
I might think it's coffee break time, so we're going to deal with a drinking cup in this next case.

[00:00:40] Speaker 01:
Munchkins v. Love and Care, 2017, 1179.

[00:00:44] Speaker 01:
Mr. McCallum.

[00:00:49] Speaker 04:
Thank you, Your Honors.

[00:00:50] Speaker 04:
May it please the Court.

[00:00:53] Speaker 04:
The Board's error

[00:00:55] Speaker 04:
in this case is really rather simple.

[00:00:58] Speaker 04:
The claimed platform in the container at issue cannot be placed between the shoulder and the neck of the container as the board construed the patent.

[00:01:09] Speaker 04:
The platform must be disposed on or on top of in the same vertical space as the shoulder.

[00:01:17] Speaker 04:
And the error is really that simple.

[00:01:19] Speaker 04:
The error can specifically be traced to the board's

[00:01:22] Speaker 04:
erroneous construction of the platform and the shoulder limitations.

[00:01:28] Speaker 04:
But the board's construction really triggered a vast number of inconsistencies in this patent, not the least of which are the fact that under the board's construction, the claims exclude not only the preferred embodiment.

[00:01:42] Speaker 00:
Can you explain that?

[00:01:43] Speaker 00:
I guess I'm having a hard time seeing why the board's construction simply doesn't

[00:01:51] Speaker 00:
encompass but go beyond the preferred embodiment.

[00:01:55] Speaker 00:
In what way does it exclude the preferred embodiment?

[00:01:59] Speaker 04:
Because the claims use the term shoulder, and the specification uses the term wing.

[00:02:06] Speaker 04:
Our position is those two are one and the same thing.

[00:02:09] Speaker 04:
It's clear from the claims and the spec that those two are one and the same.

[00:02:12] Speaker 04:
The board found that they're not the same, that they're different.

[00:02:17] Speaker 00:
But different in the particular sense, if I'm remembering the page,

[00:02:21] Speaker 00:
of the board's opinion that shoulder is not limited to wing.

[00:02:24] Speaker 00:
But I didn't see anything where the board's understanding of shoulder excluded the wing.

[00:02:32] Speaker 04:
I think the board's finding was actually that those are two different structures simply because they're two different words.

[00:02:40] Speaker 04:
And if they're two different structures.

[00:02:44] Speaker 00:
Can you point me to something?

[00:02:47] Speaker 00:
And you also had a related point that love and care

[00:02:50] Speaker 00:
at some point conceded that its view of shoulder excluded the embodiments.

[00:02:59] Speaker 04:
Yeah.

[00:03:00] Speaker 04:
Okay.

[00:03:00] Speaker 04:
So the board's decision, if we look at appendix page seven, where it says, we're not persuaded by the argument that shoulder is used in the claims has the same meaning as wings as used elsewhere in the spec.

[00:03:13] Speaker 04:
The drafters intend the claims to be limited to the preferred embodiment.

[00:03:16] Speaker 04:
They would have used

[00:03:17] Speaker 04:
that term.

[00:03:18] Speaker 00:
Right, and that's exactly the language I had in mind.

[00:03:21] Speaker 00:
That language does not exclude wings from shoulders.

[00:03:25] Speaker 00:
It simply says shoulders are not limited to wings.

[00:03:30] Speaker 04:
In due respect, that was not our understanding of the terminology there.

[00:03:36] Speaker 04:
And really, there's no other way to construe the shoulder other than that it is the wing.

[00:03:42] Speaker 04:
Anything else is an improper construction.

[00:03:46] Speaker 04:
And to your point about Ellen C.'

[00:03:49] Speaker 04:
's statement on that issue.

[00:03:51] Speaker 02:
The report held that the wings or the shoulders are not interchangeable.

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

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

[00:04:03] Speaker 04:
That's right.

[00:04:04] Speaker 04:
And so there's clearly a different scope there that the board had in mind.

[00:04:09] Speaker 04:
And really the point being that the specification places

[00:04:14] Speaker 04:
the platform on the wing, the claims place, the platform on the shoulder.

[00:04:19] Speaker 04:
And if those two things are different structures, you've got the platform in different places in the claims than you do in the specification.

[00:04:28] Speaker 04:
And Judge Tarantuo, to your point, Appendix 3449, his counsel for L&C stating on the record that

[00:04:41] Speaker 04:
Maybe they changed the word cup wing when they wrote the claims and they decided to call it a shoulder.

[00:04:45] Speaker 00:
I'm sorry, what page are you reading?

[00:04:47] Speaker 04:
This is 3449 of the appendix.

[00:04:50] Speaker 04:
Because that's the only thing that has a platform sitting on it.

[00:04:53] Speaker 04:
There is no other part of this patent where there's a platform on top of anything else.

[00:04:57] Speaker 04:
So if the claim is going to be construed to read on this specification and on these drawings, that has to be the shoulder.

[00:05:06] Speaker 04:
And that's true.

[00:05:07] Speaker 04:
We would agree with that statement.

[00:05:08] Speaker 01:
Your argument is that the platform may not be located between the shoulder and the neck.

[00:05:14] Speaker 04:
That's correct.

[00:05:15] Speaker 01:
Is that right?

[00:05:15] Speaker 01:
But when you look at the claim, the shoulder is below the neck and the platform is disposed on the shoulder which makes it between the neck and the shoulder.

[00:05:30] Speaker 04:
I think what we're talking about here when we talk about how these things are positioned, if you look at

[00:05:38] Speaker 04:
L and C's position is really that we're talking about a linear between, okay, so you have at the lower portion you have a shoulder and then you have a platform and there's no overlap between those two things and then you have the neck.

[00:05:54] Speaker 04:
Whereas what we're saying is and what the patent says uniformly, there is no description anywhere in the patent of a platform between the shoulder and the neck and there is no depiction in any of the figures

[00:06:05] Speaker 04:
of the patent of a platform between the shoulder and the neck.

[00:06:08] Speaker 04:
It has to be on top of the neck.

[00:06:09] Speaker 01:
You're saying that the specification doesn't support the claim.

[00:06:14] Speaker 04:
It's a sign that the board misconstrued the claims and really divorced the claims wholly from the specification.

[00:06:20] Speaker 04:
The far more logical way to read this patent and these claims is consistent with the way it's described in the specification.

[00:06:27] Speaker 04:
We don't have to rely on the specification alone.

[00:06:29] Speaker 04:
I want to point to a few things in the claims.

[00:06:32] Speaker 04:
I know a lot of focus has been placed on the shoulder and the wing, but that's only

[00:06:36] Speaker 04:
One way to get there, another way to get there is through the claim language which simply says that the platform is disposed on the shoulder.

[00:06:44] Speaker 04:
The plain meaning of that language is on top of and we know that because the same disposed on language is used in connection with the snap projection.

[00:06:55] Speaker 04:
The snap projection is disposed on the platform.

[00:07:00] Speaker 04:
And there's no dispute in this case that in that context the snap projection must be placed

[00:07:06] Speaker 04:
on top of the platform.

[00:07:07] Speaker 04:
In fact, as we noted in our briefs, Council for L&C has admitted that the entire purpose of the platform is to elevate the snap projection so that it can engage a feature on the lid and enable the clicking function of the invention.

[00:07:22] Speaker 04:
And so it makes no sense to construe the disposed-on language clearly in the context of the snap projection in the platform differently from the way you would construe disposed-on

[00:07:34] Speaker 04:
in the context of the platform and the shoulder, but that's precisely what the board did here.

[00:07:39] Speaker 04:
You can also look to claim five and claim six and get to the same spot.

[00:07:44] Speaker 04:
Claim five is a dependent claim.

[00:07:46] Speaker 04:
It further elaborates on the positioning of a snap projection.

[00:07:52] Speaker 04:
Claim five says, it claims a snap projection that extends inward to a second end adjacent to an inner end of the shoulder adjacent to the neck.

[00:08:02] Speaker 04:
So the inner end of the shoulder is adjacent to the neck in claim five.

[00:08:07] Speaker 04:
Now, certainly in our view, that means that the neck joins the shoulder, but at bare minimum, we know that there's not a platform wedged in between there because otherwise the snap projection would be adjacent to the platform and not to the neck.

[00:08:22] Speaker 04:
So that claim reinforces our position as well.

[00:08:25] Speaker 04:
Again, undercuts the board's construction.

[00:08:28] Speaker 04:
Claim six further highlights that point, that claim

[00:08:33] Speaker 04:
calls out a gap is provided between the second end of the snap projection and the neck.

[00:08:38] Speaker 04:
But because that's an added limitation over claim five, we know claim five, through claim differentiation, allows for there to be no gap between the snap projection and the neck.

[00:08:47] Speaker 04:
And if there's no gap between the snap projection and the neck, there can be no gap between the shoulder and the neck, and therefore no platform between the shoulder and the neck.

[00:08:59] Speaker 04:
And finally, in the claims,

[00:09:04] Speaker 04:
The use of the phrase upper end also undercuts the board's construction because we know from the claims that the neck, both the neck and the shoulder extend from and join at the upper end of the container.

[00:09:18] Speaker 04:
The neck goes upward from the upper end.

[00:09:20] Speaker 04:
The shoulder goes radially outward from the upper end and they join at that point.

[00:09:24] Speaker 04:
So once again, no platform can be between the shoulder and the neck.

[00:09:32] Speaker 04:
All of that is perfectly consistent with the specification, which, as I mentioned, never discloses an embodiment, never even hints at an embodiment of the invention where the platform is between the shoulder and the neck.

[00:09:48] Speaker 01:
I don't have much argument about the snap projection.

[00:09:52] Speaker 04:
Did I miss?

[00:09:53] Speaker 04:
I may have misspoke that I said snap projection there.

[00:09:55] Speaker 01:
Just looking at the prior art, which is fairly old, one would think that the snap projection is the

[00:10:02] Speaker 01:
modern benefit, but that's not what I'm hearing the argument about.

[00:10:07] Speaker 04:
The benefit here really goes to kind of the grip.

[00:10:12] Speaker 04:
The two driving objectives here were the click lock feature, the audible sound that's created when you are sufficiently tightened, and the grip ability, which is why you have these wings to give you leverage to twist, make it easier to hold onto and twist.

[00:10:29] Speaker 04:
And with respect to the clicking sound, that really is where

[00:10:32] Speaker 04:
and the heart of this issue here where the layered construction of the shoulder, the platform, the snap projection come into play because you have these wings, practically speaking, shoulders that are meant to allow the user to hold onto and grip easily.

[00:10:47] Speaker 04:
And so you have these rounded shoulders.

[00:10:50] Speaker 04:
Well, in order for that to be able to engage the lid, you need to prop it up.

[00:10:54] Speaker 04:
And so this is why you have the platform on top of the shoulder, which gives you

[00:11:00] Speaker 04:
in a preferred embodiment, at least a level surface to work with, and you put the snap projection on top of that, that enables you to engage your click lock function.

[00:11:08] Speaker 04:
I think that's all I have on the original claims.

[00:11:10] Speaker 02:
Are you arguing the claim construction that was argued before the district court?

[00:11:18] Speaker 04:
I'm sorry, could you repeat that question?

[00:11:19] Speaker 02:
Are you arguing the same claim construction that you argued before the district court?

[00:11:23] Speaker 04:
Yeah, we're proposing it's effectively the same construction that we offered before the district court.

[00:11:29] Speaker 02:
And the board considered that.

[00:11:30] Speaker 02:
And it said that that construction is erroneous because the platform is to be at least substantially flat.

[00:11:40] Speaker 02:
And you're relying on the specification that says it preferably should be flat.

[00:11:46] Speaker 02:
And if your construction is adopted, then any change in the contour of the shoulder would constitute a platform.

[00:11:54] Speaker 02:
And the board found that that is an impermissible enlargement of the scope of the patent.

[00:12:01] Speaker 04:
I want to make one thing clear.

[00:12:03] Speaker 04:
The board addressed that issue only in the context of our conditional alternative motion to amend.

[00:12:09] Speaker 04:
That issue does not affect the original claims.

[00:12:13] Speaker 04:
moving to that issue.

[00:12:14] Speaker 02:
That affects the construction.

[00:12:16] Speaker 02:
That's still the construction issue that we're talking about.

[00:12:25] Speaker 04:
And that issue, again, was not... The issue of broadening, which is what the board based, or the context that the board addressed that issue in, obviously is relevant to the amendment, but is not relevant

[00:12:40] Speaker 04:
The court did not, the board did not address that issue in the context of the original claim.

[00:12:45] Speaker 00:
On the amendment and the platform issue, do I understand your position to be that even if you lose on, what is it, claims one through seven, the issued claims, that nevertheless you're entitled to have a vacator of the denial of the amendment because that denial rested entirely on a claim construction of platform and the original claims as requiring

[00:13:08] Speaker 00:
substantial flatness and that's plainly wrong because that was an express dependent claim.

[00:13:13] Speaker 00:
And therefore the only basis for that's given to date by the board for denying the amendment rests on an erroneous claim construction and that has to be vacant.

[00:13:22] Speaker 04:
That's correct, Your Honor.

[00:13:23] Speaker 04:
That's correct.

[00:13:24] Speaker 04:
And I think with that I'll reserve what time I have left for rebuttal.

[00:13:28] Speaker 01:
We will save it for you, counsel.

[00:13:36] Speaker 01:
Mr. Manzo.

[00:13:38] Speaker 03:
Thank you, your honor.

[00:13:41] Speaker 03:
Pleasure to be here today to talk about wings and shoulders.

[00:13:47] Speaker 01:
We'll see how well you shoulder your argument.

[00:13:49] Speaker 03:
I'll try to wing it.

[00:13:52] Speaker 00:
You guys have this prepared.

[00:14:00] Speaker 03:
I think the court has a very easy decision to make.

[00:14:03] Speaker 03:
Assuming arguendo, the truth of what Munchkin is arguing, that the specification says the shoulder comes up to the neck, and I disagree, that still leads us into the problem that that is not what the claims say.

[00:14:18] Speaker 03:
And if you look at the Supreme Court ruling in McCarthy, it describes exactly this case.

[00:14:24] Speaker 03:
If you start bringing in principles from the... Are we going to move to a different body part now?

[00:14:28] Speaker 00:
To the nose?

[00:14:30] Speaker 00:
Really, I mean that kind of general stuff doesn't help this case.

[00:14:34] Speaker 00:
The question is why if you look at the specification and you see that there's been this double change of language from cup main body to neck and from wing to shoulder and try to understand what shoulder is in the context of the other language, including this interesting platform disposed on language, it really doesn't have to be limited

[00:14:58] Speaker 00:
to the only thing really described in the spec, which is a wing that abuts the neck.

[00:15:11] Speaker 03:
If I understand your honest question, let us assume that the wing and the shoulder are overlapping or one in the same.

[00:15:26] Speaker 03:
I think where we look at, if I could invite Your Honor's attention to Appendix Page 17, this is going to speak to both issues in the case.

[00:15:37] Speaker 00:
This is in the board opinion?

[00:15:39] Speaker 03:
That is in the board opinion.

[00:15:43] Speaker 03:
So this shows at the top of the page in single-space format the proposed Claim 8.

[00:15:52] Speaker 03:
And the problem here is that in Claim 8,

[00:15:56] Speaker 03:
The second element says, we're in an outer surface of an upper end of the container extends below the neck, radially outward, to define a shoulder.

[00:16:07] Speaker 03:
Then if you look at the part that's underscored.

[00:16:09] Speaker 00:
You should include a word that at least seems to me potentially significant, which I think maybe you just skip.

[00:16:15] Speaker 00:
The word extends.

[00:16:16] Speaker 00:
Extends below.

[00:16:17] Speaker 00:
It doesn't just say it is below.

[00:16:20] Speaker 00:
It extends below, which might suggest it's coming out of, or might not.

[00:16:25] Speaker 00:
That's not the end of the analysis.

[00:16:28] Speaker 03:
Well, I admit that one might consider that as a possibility, but to say that something extends below does not at all mean in the normal English language what the underscored part is on the fourth line of underscoring, which is the part that they want to clarify now.

[00:16:48] Speaker 03:
Now they want to say that we're in the prior clause,

[00:16:55] Speaker 03:
means that the outer surface extends down from the neck radially outward.

[00:17:01] Speaker 03:
And I submit to you that extending down from the neck is quite different from saying extends below the neck radially outward.

[00:17:10] Speaker 03:
And if you, honors, look at the prior art, both of the references rely on our complete anticipations.

[00:17:19] Speaker 03:
For the reasons the board explained, Whiteman has a body

[00:17:25] Speaker 03:
with an operandum, it has a neck, no dispute that it has a snap projection.

[00:17:30] Speaker 03:
There's a platform, and I say the platform is disposed on the shoulder, the board agrees, and the shoulder is extending readily outward below the neck.

[00:17:41] Speaker 00:
Can I ask you, this is, I guess, while we're on this subject, it's a slight detour, but why did the board not say anything about your alternative interpretations of Atkins and Whiteman, which I will tell you,

[00:17:54] Speaker 00:
strike me as a stronger version of anticipation than the version that the board adopted?

[00:18:02] Speaker 03:
I don't know why they didn't react to that, Your Honor.

[00:18:06] Speaker 03:
I wish they had, but I think that two anticipations are enough.

[00:18:11] Speaker 03:
And as for the argument of the platform has to be disposed on the shoulder, if

[00:18:23] Speaker 03:
as i said and in our brief if you if you look at white man it is disposed on the shoulder it disposed on the top of the shoulder in fact uh... the pictures show that figure two white man shows that that uh... let me just see if i can locate that uh... it's in our brief page nine of the appendix the page nine of the appendix is good but that doesn't show you

[00:18:50] Speaker 03:
Figure two of the brief, of our brief.

[00:18:56] Speaker 03:
Apologies, Your Honor.

[00:19:01] Speaker 03:
If one were to look at the red brief, page 46.

[00:19:07] Speaker 03:
That shows figure two of Whiteman.

[00:19:13] Speaker 03:
And the shoulder is sort of a flying saucer outline when viewed from above.

[00:19:18] Speaker 03:
And you can see that it's sitting on top of the shoulder.

[00:19:21] Speaker 03:
The shoulder would be number 10.

[00:19:25] Speaker 03:
And the platform is number 11.

[00:19:26] Speaker 03:
It's sitting literally on top of the shoulder.

[00:19:30] Speaker 03:
This meets the claim even as Munchkin wants to construe it.

[00:19:35] Speaker 03:
Now, again, this is a simple case where Munchkin wants to read into the claim language from the specification or limitations from the specification that simply were not stated in the claim.

[00:19:49] Speaker 03:
And they realized that when they sought to amend claim eight to say, we want to make that part narrower to be more particular, saying it has to connect to the neck.

[00:19:57] Speaker 03:
Well, fine.

[00:19:58] Speaker 03:
Let's assume that there is specification support for that.

[00:20:00] Speaker 03:
And they would have the opportunity to make that claim.

[00:20:04] Speaker 03:
But the problem with claim eight, the more severe problem with claim eight is now the platform problem.

[00:20:14] Speaker 03:
And I think, Your Honor, appreciated that they want to change a platform into basically

[00:20:20] Speaker 03:
anything under the sun that changes the contour and uh... i don't think you can help but reach the conclusion that that is broadening at least the platform has some sort of a of meaning of with a degree of flatness and there's substantial evidence in the record to support that uh... namely a dictionary definition of the figures and there is no definition in the claims is there's no example anywhere in the specification that says otherwise would do it wouldn't isn't

[00:20:48] Speaker 00:
Isn't there a rather strong claim differentiation argument about substantially flat in the platform?

[00:20:55] Speaker 00:
What is it, claim two or something?

[00:20:56] Speaker 03:
Five or something.

[00:20:58] Speaker 03:
Yes, there is some claim differentiation argument, Your Honor, but that doesn't mean that they are entitled.

[00:21:02] Speaker 03:
You can't invent.

[00:21:04] Speaker 03:
Claim three.

[00:21:05] Speaker 00:
The only difference is, right, it's claim two where the platform is substantially flat.

[00:21:12] Speaker 03:
Very well.

[00:21:12] Speaker 03:
But that does not mean that there is disclosure in the specification of one that is not generally flat.

[00:21:18] Speaker 03:
And when you tell the world of cup-making people that there's a platform, I don't think of a pyramid as a platform.

[00:21:33] Speaker 03:
I think of something generally flat.

[00:21:36] Speaker 03:
And now the patent owner wants to change that to say anything that changes the contour, anything at all.

[00:21:47] Speaker 03:
There's no example whatsoever in the specification and whether or not that's just one problem which we don't even reach in this appeal because the board decided it was a broadening recitation and by statute not allowed to broaden the claim.

[00:22:05] Speaker 00:
Just tell me if I'm wrong about this.

[00:22:06] Speaker 00:
Wasn't the only ground that the board found broadening on?

[00:22:11] Speaker 00:
The ground that the original platform term has to be substantially flat and the revised, the proposed revised language is not that, which is a, it didn't say that the broad language covers pyramids without a top surface or something that goes way beyond anything that could be considered a platform.

[00:22:38] Speaker 00:
It just said it goes beyond substantially flat.

[00:22:41] Speaker 03:
That's approximately correct, Your Honor.

[00:22:43] Speaker 03:
I think that they said they even relaxed their interpretation of the platform to say generally flat.

[00:22:50] Speaker 03:
And they compared generally flat, if I remember correctly, with what's in this new claim, which doesn't even include flat.

[00:22:58] Speaker 03:
There's no degree of flatness in this proposed Claim 8 platform.

[00:23:03] Speaker 03:
And that's the problem.

[00:23:06] Speaker 03:
There are many, many other problems that the board did not reach.

[00:23:11] Speaker 03:
with regard to claim eight.

[00:23:12] Speaker 03:
There's other priority that we haven't talked about.

[00:23:15] Speaker 03:
I want to add one little comment about disposed on.

[00:23:19] Speaker 03:
Council raised the final limitation of the claim with regard to disposed on the platform, but the rest of that claim goes on to define what it means to be disposed on.

[00:23:34] Speaker 03:
It says we're in the snap rejection extends upward, away from the platform.

[00:23:38] Speaker 00:
I think he was focused on the element that talks about what the platform is disposed on, namely the shoulder.

[00:23:47] Speaker 03:
Yes, he was.

[00:23:47] Speaker 03:
But he was using the language disposed on from the fifth claim element, the last one, to say that it should mean the same thing as the prior element, so that the terms should be used consistently.

[00:24:01] Speaker 03:
And in the fourth claim element, it says disposed on the shoulder.

[00:24:05] Speaker 03:
And in the fifth claim element, it says disposed on the platform.

[00:24:07] Speaker 03:
Wherein?

[00:24:08] Speaker 03:
bunch more stuff.

[00:24:10] Speaker 03:
So the two are not really equivalent.

[00:24:13] Speaker 03:
And, Judge, as I said in my brief, my nose is certainly disposed on my face, but it is not up here on the top of my head.

[00:24:21] Speaker 03:
I think that the Board was correct.

[00:24:27] Speaker 03:
This was the simplest reason to deny entry of Claim 8.

[00:24:31] Speaker 03:
I think that the

[00:24:40] Speaker 03:
The board had to find the broadest reasonable interpretation and did.

[00:24:46] Speaker 03:
And I have not seen any argument as to why the board reached an erroneous conclusion as to what the broadest reasonable interpretation is.

[00:24:55] Speaker 03:
What I hear is a Phillips argument.

[00:24:58] Speaker 03:
And in PPC broadband, this court explained very clearly the two are different.

[00:25:05] Speaker 03:
Phillips might be

[00:25:07] Speaker 03:
one interpretation, but that's not what is used at the PTAB or in normal examination.

[00:25:12] Speaker 03:
And it gave the reasons for doing that.

[00:25:15] Speaker 03:
And it said, the board's construction is not unreasonable and affirmed on that basis.

[00:25:26] Speaker 03:
They explain the reasons why there's two different standards of interpretation for the claim language.

[00:25:33] Speaker 03:
That applies here.

[00:25:38] Speaker 03:
The claims as written read on the prior art.

[00:25:42] Speaker 03:
And Munchkin wants to import language from the specification to distinguish the claims over prior art that anticipates the claims.

[00:25:51] Speaker 03:
That is improper.

[00:25:54] Speaker 03:
It's a specification-based argument.

[00:25:57] Speaker 03:
And the claims are the meets and bounds of the invention, not the specification.

[00:26:02] Speaker 00:
Do you agree or disagree with

[00:26:06] Speaker 00:
Mr. McCallan, that all embodiments described in the specification show, let's call it, the wing abutting the neck.

[00:26:24] Speaker 00:
I guess there you would call it the wing abutting what I ask you to take for purposes of this question as cup main body 23.

[00:26:31] Speaker 03:
I do not.

[00:26:35] Speaker 03:
The wing is described as achieving one of the objectives of this disclosure.

[00:26:42] Speaker 03:
And Mr. McCallum even talked about that by saying it allows torque to be applied when you're screwing down the cap.

[00:26:50] Speaker 03:
And if I may just digress for one second.

[00:26:56] Speaker 03:
The Munchkin patent was the second comer.

[00:27:00] Speaker 03:
Earlier, and this is in our brief, Playtex had already come out with a snap to close.

[00:27:05] Speaker 03:
cup.

[00:27:06] Speaker 03:
Munchkin said, well, we've got to have one also.

[00:27:09] Speaker 03:
And the reason for the snap to close is so that the problem was that parents or caretakers were finding liquid was coming out of the cup when they're giving it to their toddlers.

[00:27:18] Speaker 03:
And they went back to Playtex and said, how come your cup leaks?

[00:27:21] Speaker 03:
And the answer is because you didn't tighten the cup enough.

[00:27:24] Speaker 03:
Solution, let's provide a way so that parents can know the cup lid is closed enough.

[00:27:29] Speaker 03:
So what do they do?

[00:27:31] Speaker 03:
And here, what happens is they, Munchkin,

[00:27:35] Speaker 03:
provide wings, and the specification talks about an objective being to tighten the wings, tighten the cup by being able to apply torque to the wings.

[00:27:44] Speaker 03:
Now, fine, let's assume that the wing is the shoulder.

[00:27:48] Speaker 03:
It makes no sense whatsoever to put a wing as close as you can get it to the neck, because that would be the thing you would not do.

[00:27:59] Speaker 03:
You want the wing to be as far away from the neck as possible.

[00:28:02] Speaker 03:
And the specification even says the wing extends outward from the side of the cup.

[00:28:08] Speaker 03:
That makes sense to me.

[00:28:09] Speaker 03:
If I want to maximize the amount of torque I can apply to a circular body, I'm going to go out as far as I can.

[00:28:15] Speaker 03:
That's like putting a wrench on a lid that you are trying to open.

[00:28:18] Speaker 03:
The longer the lever, the better you're going to be.

[00:28:22] Speaker 03:
More torque you can apply.

[00:28:24] Speaker 03:
And when you look at figure 11 of this patent, Your Honors, and I have this in my brief,

[00:28:32] Speaker 03:
The platform is number 68.

[00:28:34] Speaker 03:
If claim one reads on this embodiment, then the shoulder has to be under that.

[00:28:45] Speaker 03:
And the shoulder, if I look at figure 11, the shoulder is nowhere near the neck.

[00:28:52] Speaker 03:
And the answer that Munchkin provides is, well, that's not numbered.

[00:28:59] Speaker 03:
That annular surface that I point to is not numbered.

[00:29:02] Speaker 03:
And my response to that is, but I can see it in Figure 11 as plain as the nose on my face.

[00:29:09] Speaker 01:
It is also as plain as the eyes on my head that your time has succeeded.

[00:29:15] Speaker 01:
Do you have a final thought?

[00:29:17] Speaker 03:
No, Your Honor.

[00:29:18] Speaker 03:
I request the court affirm the board ruling.

[00:29:22] Speaker 03:
Thank you, Your Honors.

[00:29:23] Speaker 01:
Thank you, Mr. Manzo.

[00:29:25] Speaker 01:
Mr. McCallin has two minutes plus for bottle time.

[00:29:29] Speaker 04:
Thank you, Your Honors.

[00:29:30] Speaker 04:
A couple points.

[00:29:32] Speaker 04:
We're not asking the board or this court to import any limitations from the specification.

[00:29:39] Speaker 04:
I went through five different claim limitations in claim one that get you to our claim construction and that undercut the board's claim construction in this case.

[00:29:50] Speaker 04:
Also on the issue of which embodiment these claims must read on, we have to remember that the applicants during prosecution elected species one.

[00:30:00] Speaker 04:
when asked to do so, species one corresponds to the preferred embodiment at figures one through 11.

[00:30:06] Speaker 04:
So at bare minimum, these claims must at least read on the preferred embodiment, if not be limited to it.

[00:30:14] Speaker 04:
Regarding the shoulder and the wing, well, we certainly believe the only reasonable way to read this patent is to read those features as one and the same.

[00:30:25] Speaker 04:
Otherwise, who knows what the shoulder is.

[00:30:28] Speaker 04:
That issue is not dispositive of the claim construction issue because, as I mentioned earlier, we have a number of different claim limitations that you can run through to get to the same point, including, most notably, the platform limitation is disposed on the shoulder.

[00:30:44] Speaker 04:
Regarding Mr. Manzo's argument about the wing and where he thinks it should practically be, I mean, Figure 5 of the specification tells you exactly where the wing is.

[00:30:54] Speaker 04:
It gives you the distance

[00:30:56] Speaker 04:
that distance D3 that it extends, it extends from the neck all the way out to the end.

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

[00:31:03] Speaker 04:
That's the shoulder.

[00:31:05] Speaker 04:
We know through that figure alone that we don't have to worry about Mr. Manzo's argument about the shoulder not extending far enough out or being tucked in close to the neck because it's the whole thing and it starts at the neck.

[00:31:18] Speaker 04:
Love and care and Mr. Manzo would also ask this court to

[00:31:21] Speaker 04:
fill the void that the board's construction is created by literally inventing a feature in this patent called the annular surface that appears nowhere in the claims, it appears nowhere in the specification, it's not numbered, it's not depicted in the figures, and that is important.

[00:31:36] Speaker 04:
And they would have this court place invention altering significance on a made-up feature.

[00:31:43] Speaker 04:
We would submit that munchkins construction, which makes sense of both the claims and the spec together is the far more

[00:31:49] Speaker 04:
proper way to construe these claims.

[00:31:55] Speaker 04:
And a final point about the broadening argument that Mr. Manzo made.

[00:31:59] Speaker 04:
It's notable that he would like to have it both ways, say that it's simply something in the specification.

[00:32:07] Speaker 04:
There's no disclosure in the specification of a generally flat, but there's no disclosure in the specification of a platform being next to the shoulder as opposed to on top of the shoulder.

[00:32:18] Speaker 04:
You can't have those two issues

[00:32:19] Speaker 04:
differently when you're dealing with the original claims versus the motion to amend.

[00:32:24] Speaker 01:
Thank you, counsel.

[00:32:25] Speaker 01:
We'll take a case under review.

[00:32:27] Speaker 04:
Thank you.