[00:00:42] Speaker 03:
Okay, the next argued case is number 17-10-05, Quality Edge Incorporated against Rolex Corporation.

[00:00:51] Speaker 03:
Mr. Lanser, when you're ready.

[00:00:55] Speaker 02:
Good morning, Your Honors.

[00:00:56] Speaker 02:
My name is Joseph Lanser on behalf of Appellant Rolex Corporation.

[00:01:00] Speaker 02:
May I please the Court, I'd like to reserve three to five minutes for republicans.

[00:01:03] Speaker 03:
Okay.

[00:01:05] Speaker 02:
Your Honor, this is an appeal for a patent infringement case pending in the Western District of Michigan.

[00:01:09] Speaker 02:
And based on this appeal, it is based upon the district court's abuse of discretion by granting the permanent injunction at the district court level.

[00:01:19] Speaker 02:
And I'd like to set forth in our brief, we set forth numerous issues and errors that led to that granting of the permanent injunction.

[00:01:27] Speaker 02:
But I'd like to focus specifically on three of them today, unless the panel has questions about any others.

[00:01:32] Speaker 02:
Namely, I'd like to start with the incorrect claim construction that the district court came up with.

[00:01:37] Speaker 02:
the incorrect granting of the motion for summary judgment of infringement, and then finally the preclusion of all discovery, including then the permanent injunction itself, which was not based upon factual requirements set forth by this court.

[00:01:52] Speaker 02:
The disputed phrase at the district court level is a generally horizontal and perforated top law, which is found in each of the independent claims 1 and 42 of the 224 patent.

[00:02:03] Speaker 02:
The district court defined this to mean as defined by a generally horizontal top wall wherein any perforations in the top wall are hidden from a view underneath the eaves.

[00:02:13] Speaker 02:
We believe that that claim construction is incorrect as a matter of law.

[00:02:18] Speaker 02:
There is absolutely no support in the specification in the intrinsic record as a whole to support that construction.

[00:02:24] Speaker 02:
And in fact, there is nothing at all in the intrinsic record that says or teaches anything about hiding any perforations in the top wall

[00:02:33] Speaker 02:
let alone perforations in any wall.

[00:02:36] Speaker 02:
The specification is clear that the soffit panel that is disclosed in the specification and claimed in the claims hides angled perforate sidewalls in their entirety based upon the angle of the sidewalls that are created in this trapezoidal shape.

[00:02:51] Speaker 01:
I agree with you that the figures show no perforations in the top wall.

[00:02:55] Speaker 01:
It's clean of perforations.

[00:02:57] Speaker 01:
And then the spec, the thrust of the spec is really devoted to the idea

[00:03:03] Speaker 01:
the invention of having all of the perforations in the side walls and not having perforations in the top wall.

[00:03:13] Speaker 01:
Then there is this one little moment in the spec where it says the top wall is substantially imperforate.

[00:03:22] Speaker 01:
That is the moment in the spec where there is maybe some ambiguity now and the district

[00:03:32] Speaker 01:
seem to rely on for the notion that well now when we have a claim limitation that says generally horizontal imperforate top wall maybe that adverb generally is modifying not only horizontal but it's also modifying imperforate because of what you said in column three with substantially imperforate.

[00:03:53] Speaker 01:
Could you explain how we should understand that usage of substantially imperforate in column three?

[00:03:59] Speaker 02:
Absolutely.

[00:03:59] Speaker 02:
I'd like to make two points with regard to that and specifically

[00:04:02] Speaker 02:
The fortunate referent, I believe, is column three beginning on line 33.

[00:04:08] Speaker 02:
In the very beginning of that sentence, it says, in the example illustrated in figures one through five, the top wall of the vent channel is substantially imperforate.

[00:04:17] Speaker 02:
Now, it specifically says, in the example illustrated in figures one through three.

[00:04:21] Speaker 02:
Now, if you go to the example illustrated in figures one through three, it's clear that the top wall has no perforations at all.

[00:04:28] Speaker 02:
They're defining substantially imperforate as being shown specifically in figures one through three.

[00:04:34] Speaker 01:
Also, well, I guess what I want to know is, what would you like us to think when we see the word substantially in that phrase in the spec?

[00:04:46] Speaker 01:
What does it mean?

[00:04:47] Speaker 02:
Well, again, they're defining substantially imperfect by specific reference to those figures.

[00:04:52] Speaker 02:
They're saying that the figures are showing a top ball that is substantially imperfect.

[00:04:56] Speaker 02:
The top ball shown in those figures don't have perforations.

[00:04:59] Speaker 02:
Now, the other key point about this, in that same sentence, it goes further.

[00:05:03] Speaker 02:
does not permit air to pass through.

[00:05:06] Speaker 02:
Now referring to figure 2, which shows the flow of air with the arrows, it clearly shows that the air is flowing through the perforations in the sidewalls.

[00:05:16] Speaker 02:
If there are perforations in the top wall, air would flow through the perforations as well in the top wall, but the spec in that very same sentence specifically says it does not permit air to pass through.

[00:05:28] Speaker 04:
So what do you think it meant by substantially imperfect, if it doesn't mean the holes of the size designated 25 in some of the figures?

[00:05:38] Speaker 04:
Does it mean smaller holes, holes that are so small that air can't pass through?

[00:05:42] Speaker 04:
I mean, I don't know.

[00:05:43] Speaker 04:
I'm just wondering what that means, because you're right.

[00:05:46] Speaker 04:
It does say, as illustrated in the figures, and then you look at the figures, and it doesn't appear to be any holes.

[00:05:53] Speaker 04:
And it also says that the air can't pass through.

[00:05:56] Speaker 04:
So that supports your position.

[00:05:58] Speaker 04:
But why does it say substantially imperforate instead of imperforate?

[00:06:03] Speaker 02:
Well, that's a good question, Your Honors.

[00:06:04] Speaker 02:
And that's something we struggled with for a while.

[00:06:07] Speaker 02:
But this is A, the only location in this entire specification that uses the word substantially imperforate.

[00:06:12] Speaker 02:
B, the claim safe, generally horizontal imperforatable.

[00:06:16] Speaker 02:
Not substantially imperforate, not generally imperforate, generally horizontal imperforatable.

[00:06:21] Speaker 02:
Generally, it can be used as a modifier, but it is modifying in the claim itself generally horizontal.

[00:06:27] Speaker 02:
Generally throughout the entire spec is always used with regard to orientation of certain structures or the generally trapezoidal shape.

[00:06:34] Speaker 01:
So kind of like in that same column three, beginning at line 39, where it says top wall six is disposed in a generally horizontal orientation.

[00:06:45] Speaker 01:
So again, that is supporting your thinking that

[00:06:50] Speaker 01:
We should understand generally horizontal and perforate top wall being generally horizontal stop and an imperforate top wall.

[00:07:01] Speaker 02:
Correct.

[00:07:02] Speaker 02:
And again, that's what the claims state.

[00:07:04] Speaker 02:
The bottom line is, even if there's perforations in the top wall, A, what does substantially imperforate mean?

[00:07:12] Speaker 02:
If you have perforations, by definition, it would not be substantially imperforate.

[00:07:16] Speaker 02:
It wouldn't be imperforate.

[00:07:17] Speaker 02:
It would be perforate.

[00:07:18] Speaker 02:
And in fact, inventors here exclusively used both terms in the claims themselves and in the spec, perforate and imperforate.

[00:07:25] Speaker 02:
They knew the differences between the two.

[00:07:27] Speaker 02:
You can't have an imperforate paper, wall, anything with perforations in it, because if you did, it wouldn't necessarily, by definition, mean it's not imperforate.

[00:07:37] Speaker 02:
It would have perforations.

[00:07:38] Speaker 04:
Now, the other thing the district court relied on was that use of a comma elsewhere in the claim, where it's a generally flat comma, imperforate, separating and

[00:07:48] Speaker 04:
Making clear, I guess, according to the district court, that generally modifies flat only.

[00:07:54] Speaker 04:
What do we make of the fact that the generally horizontal and perforated top wall doesn't have such a comma?

[00:08:02] Speaker 02:
Your Honor, the use of the comma throughout the entire patent is pure happenstance.

[00:08:06] Speaker 02:
And it shows no intent to be inventors.

[00:08:07] Speaker 02:
And the perfect example of that is if you read the specification,

[00:08:16] Speaker 02:
Find the exact location where it does reference specifically generally There's an absence between the specification a column two line sixty through sixty one the spec says a generally flat imperforate base portion without a comma If you go to the claims though and claim one for example in column five line three It I'm sorry column five line thirteen and claim one that is now claimed as a generally flat comma imperforate base portion

[00:08:45] Speaker 02:
Commons throughout this entire usage of the patent is even inconsistent between the claims and the specification in different terms.

[00:08:51] Speaker 02:
And it's just the common usage itself is pure happenstance.

[00:08:54] Speaker 02:
And moreover, there's no grammatical rule that even supports that there's a court's conclusion that placing a comma there would somehow, or not placing a comma, but somehow modify both horizontal and imperfect with the terminology of general.

[00:09:08] Speaker 04:
I have a question.

[00:09:09] Speaker 04:
If we were to agree with you on the claim construction, what other issues would be

[00:09:15] Speaker 04:
before the court.

[00:09:16] Speaker 04:
What would we do?

[00:09:17] Speaker 04:
We would have to remand, I suppose?

[00:09:20] Speaker 02:
Well, the claim construction would obviously vacate the permanent injunction, summary judgment of infringement, as well as other issues that are down below.

[00:09:30] Speaker 02:
Yes, a claim construction in our mind would be able to go back down below because the accused device itself has perforations in the top wall.

[00:09:38] Speaker 02:
and we would move them for summary judgment as a matter of law, we would do not infringe the claim because the top law is required in a claim as being imperfect.

[00:09:46] Speaker 01:
Okay, so I guess you're suggesting that there would be a need for you to refile a summary judgment motion for non-infringement rather than it just being completely over.

[00:10:00] Speaker 01:
if we agreed with your claim?

[00:10:02] Speaker 02:
Well, correct, Your Honor.

[00:10:05] Speaker 02:
We initially, in 2010, when this case was originally filed, we intended to file a motion for summary judgment of non-infringement based upon this claim term, the Generally Horizontal Perferred Top Law.

[00:10:18] Speaker 02:
Pursuant to the district court's local rules, we had to have a pre-motion conference, at which point, Quality Edge said, well, there's a dispute regarding the claim construction.

[00:10:28] Speaker 02:
And we said, OK, let's go forward with claim construction.

[00:10:30] Speaker 02:
She adopted Crowley-ledged claim construction, and then they went ahead and filed a motion for summary judgment of infringement, at which point she didn't then grant the motion for summary judgment of infringement.

[00:10:40] Speaker 01:
OK.

[00:10:41] Speaker 01:
Did you cross-move for non-infringement?

[00:10:43] Speaker 02:
No, we did not because of the claim construction.

[00:10:44] Speaker 02:
You did that under that claim construction, right?

[00:10:46] Speaker 02:
Correct.

[00:10:47] Speaker 02:
Not with the claim construction.

[00:10:48] Speaker 02:
This court adopted.

[00:10:49] Speaker 01:
So we're confronted with having to understand what does it mean in claim one when it says generally horizontal, imperforate top wall.

[00:10:59] Speaker 01:
To do that, we need to look at the entire patent, and that can include the other claims of the patent.

[00:11:07] Speaker 01:
So I was looking at dependent claim 23, which says a vented soffit is set forth in claim 22 wherein said imperforate top wall is spaced apart from said base portion a distance in the range of 0.4 to 0.5 inches.

[00:11:27] Speaker 01:
The fact that the dependent claim says said imperforate top wall, it doesn't say said generally imperforate top wall or it doesn't say said generally horizontal imperforate top wall, does that to you suggest that when you go back and look at the claim one for generally horizontal imperforate top wall, the generally is really only defining horizontal and it has nothing to do with imperforate top wall?

[00:11:58] Speaker 02:
You're absolutely correct, Your Honor.

[00:12:00] Speaker 03:
That Dependent Claim 23, with his reference to sed and perforate top wall, further, and we did raise this argument at the district court level, further emphasizes... Was there any dispute before the district court as to whether there were one or two perforations, or whatever, as to what substantially might have been, or was it crystal clear that it was just the flat surface that you told us about?

[00:12:27] Speaker 02:
The dispute did not focus on the number of perforations, Your Honor, which brings me to the next point as set forth in our briefing.

[00:12:33] Speaker 02:
The district court actually held in its hands during the Markman hearing the accused device and was trying to construe the claims and trying to understand how the claims could be construed relative to the accused device, which we believe is the reason that she came to this conclusion in improper claim construction.

[00:12:51] Speaker 03:
I'm not sure I understand.

[00:12:52] Speaker 03:
Did you say there were?

[00:12:54] Speaker 03:
In the model that was given to the judge, there was nothing remotely resembling perforations in the top wall?

[00:13:02] Speaker 02:
No, the accused device itself does include perforations in the top wall.

[00:13:06] Speaker 03:
And as compared with the patented device, was there a sample?

[00:13:10] Speaker 02:
Correct, which isn't perforated.

[00:13:13] Speaker 03:
Okay.

[00:13:14] Speaker 02:
If possible, Your Honor, I'd like to reserve the remaining time for rebuttal.

[00:13:17] Speaker 03:
Alright, let's hear from the other side.

[00:13:19] Speaker 02:
Thank you.

[00:13:27] Speaker 03:
Mr. Gibson.

[00:13:30] Speaker 00:
May it please the court.

[00:13:31] Speaker 00:
Let me get right to claim construction since that seems to be the issue.

[00:13:38] Speaker 00:
In applying Phillips, the district court first analyzed the claims.

[00:13:42] Speaker 00:
And the district court recognized this court's precedence about the word generally being a word that's commonly used in patent claims to avoid a strict boundary to a specified parameter.

[00:13:55] Speaker 01:
What should we do with claim 23, which specifically says said, imperforate, top wall?

[00:14:04] Speaker 00:
I think claim 23 is a shorthand reference given the antecedent basis to the overall phrase.

[00:14:12] Speaker 00:
If you note later in that same claim 23, it says said base portion.

[00:14:17] Speaker 00:
It doesn't say said claim one for the base portion.

[00:14:24] Speaker 00:
says generally flat common and perforate-based portion.

[00:14:29] Speaker 00:
I think claim 23, with the antecedent basis, is a shorthand reference, not well-worded to the larger phrases in claim one.

[00:14:41] Speaker 01:
So you don't think it necessarily indicates that the adverb generally is really about modifying horizontal and not modifying

[00:14:53] Speaker 01:
No.

[00:14:54] Speaker 00:
I think given the antecedent basis and the fact that I think it's a shorthand reference to that entire phrase, that I don't think it's changing what we get from the punctuation in claim one or from the spec.

[00:15:08] Speaker 01:
So it could have said top wall under that line of thinking.

[00:15:12] Speaker 00:
Correct.

[00:15:13] Speaker 00:
If it was a pure clean shorthand, it would have said only said top wall.

[00:15:19] Speaker 00:
And it didn't refer to the horizontal or generally

[00:15:23] Speaker 00:
Just like with the base portion, it only referred to base portion.

[00:15:27] Speaker 03:
If you look at figure two and the other figures, they don't show any perforations in the top wall.

[00:15:34] Speaker 00:
Correct, Your Honor.

[00:15:35] Speaker 00:
None of the figures in the patent show perforations in the top wall.

[00:15:40] Speaker 01:
This is the thrust of the entire specification.

[00:15:43] Speaker 01:
The contribution these inventors came up with was the idea of installing the perforations in the side wall.

[00:15:51] Speaker 01:
to provide ventilation rather than in the top wall.

[00:15:54] Speaker 01:
That's really the way I read the spec.

[00:15:57] Speaker 00:
Yeah, I think that's perhaps a little bit more narrow.

[00:16:01] Speaker 00:
I think that the spec is talking about hiding.

[00:16:05] Speaker 00:
The prior included fully vented soffit so you could see all the perforations.

[00:16:09] Speaker 00:
And then you have unvented soffit where there are no perforations and you have this nice clean look.

[00:16:15] Speaker 00:
The goal of this pattern was to hide the perforations

[00:16:19] Speaker 00:
in a generally trapezoidal configuration, which is necessary for it to be hit.

[00:16:23] Speaker 00:
I don't think that in the illustrated exemplary embodiment has perforations just on the sidewalls.

[00:16:31] Speaker 00:
Whereas the acoustic device has the perforations, not just on the sidewalls, but also on the very lateral edges of the top wall, yet they remain hidden.

[00:16:40] Speaker 00:
So I think that what the invention is going for, what the patent is going for, is the concept of being able to hide these perforations

[00:16:48] Speaker 00:
in a generally trapezoidal shape so that they can't be seen.

[00:16:52] Speaker 04:
I think your strongest support in the specification is that part in column three where it refers to something being substantially imperfect.

[00:17:01] Speaker 04:
But then it does say, therefore does not permit air to pass there through.

[00:17:06] Speaker 04:
So this substantially imperfect embodiment cannot allow air to pass through.

[00:17:13] Speaker 04:
How can there be a perforation and air doesn't pass through?

[00:17:19] Speaker 00:
There can't be.

[00:17:21] Speaker 00:
If there's a perforation, the air would have to pass through.

[00:17:24] Speaker 00:
I think that when you look at, later on in that same part of column three, again, the patents focusing on the appearance of the soffit, and that it's substantially identical with the exterior surface of the base portion, which is obviously entirely, that's what can be seen from a view underneath the eaves.

[00:17:44] Speaker 00:
It's entirely perforated.

[00:17:46] Speaker 01:
The trouble I have is I don't see

[00:17:49] Speaker 01:
in this particular passage, or really anywhere in this patent, the inventors contemplating the, I guess, clever idea that not only could you put perforations in the side walls, but maybe you could tuck away some perforations in the top wall that would actually be hidden from view when you have trapezoidal slanted side walls.

[00:18:15] Speaker 01:
I mean, there's nothing like that

[00:18:18] Speaker 01:
contemplated in the patent.

[00:18:19] Speaker 01:
Well, there's nothing illustrated that way.

[00:18:22] Speaker 01:
Or really described, either.

[00:18:25] Speaker 00:
Well, I think that before describing the illustrated embodiment, the exemplary embodiment, the patent team made it clear that they were not intending that that was only an exemplary embodiment.

[00:18:37] Speaker 00:
That's actually at column two, line 47 through 57.

[00:18:42] Speaker 00:
And then, again, after describing the exemplary embodiment in column five,

[00:18:48] Speaker 00:
line three through nine, again says that modifications to that are within the scope of the invention.

[00:18:56] Speaker 00:
And in between while describing it, I think that the inventors have actually added the word substantially and focused on the appearance of the soffit as it would appear when you're viewing it from underneath the eaves, so that you weren't seeing the perforations.

[00:19:13] Speaker 00:
So there is nothing explicit in the drawings that show perforations on top of all.

[00:19:17] Speaker 00:
But I think when you look at this course, precedence about not reading in limitations from the drawings into the claims, you know, we're starting to run a follow that when we only focus on the drawings and not as... The precedent was a comment on precedent.

[00:19:34] Speaker 03:
Precedent also says you can't claim more than what you've described and enabled in your specification.

[00:19:43] Speaker 03:
So I'm just looking for...

[00:19:44] Speaker 03:
where the specification describes and enables perforations in the top wall?

[00:19:50] Speaker 00:
I think the specification certainly doesn't show it.

[00:19:53] Speaker 00:
I think that the concept of focusing, again, on the appearance of the soffit and the genuine trapezoid or cross-section so that those can be hidden and not seen is broad.

[00:20:06] Speaker 00:
And it's not limited to what's shown in figures one and two.

[00:20:10] Speaker 04:
I actually agree with you.

[00:20:12] Speaker 04:
as far as what your specifications closes.

[00:20:15] Speaker 04:
The problem I'm having, and it seems like it's probably a good invention, but the way it's described is consistent with the way it's claimed, which says that top wall is imperforate.

[00:20:27] Speaker 04:
Whether it's generally imperforate, the question is whether it generally modifies imperforate, but even generally imperforate, substantially imperforate, doesn't seem to have perforations.

[00:20:38] Speaker 04:
And so that's the way it's claimed.

[00:20:40] Speaker 00:
Well, no, if it's generally in perforate or substantially in perforate, most of it would have to be... Underneath this course precedent, you're allowed some deviation from the specified parameter, so you'd have to... You'd have some... But as we discussed before, if it doesn't allow air to go through, then it doesn't have perforations.

[00:21:00] Speaker 00:
Well, that part of the spec in describing the illustrated body might be correct.

[00:21:03] Speaker 00:
I don't think that the claims are that narrow.

[00:21:08] Speaker 00:
I think that if you have something that is generally, if you look at a claim that's generally imperforate, the vast majority of the accused product is absolutely imperforate, where the very lateral edges of that top wall are where the perforations are.

[00:21:24] Speaker 00:
And the air certainly does pass through those perforations.

[00:21:26] Speaker 01:
So that would be in conflict with this statement in the spec, where it says, therefore does not permit air to pass through.

[00:21:35] Speaker 01:
The fact that the accused device has these two long rows of perforations that allow lots of air to pass through.

[00:21:41] Speaker 01:
The accused device does have the rows that allow air to pass through.

[00:21:46] Speaker 01:
Which I guess the point is in conflict with this sentence that does say substantially imperfect but at the same time and the same breath also says therefore does not permit air to pass there through.

[00:21:59] Speaker 00:
Yes, and that's true.

[00:22:01] Speaker 00:
But I think when you look at the beginning of that sentence, it's focused on the exemplary embodiment of the figures one through three, not necessarily limiting ourselves to, given the other language of the pad, not necessarily limited.

[00:22:16] Speaker 00:
I don't think that we're necessarily limited to what's shown in figures one through three.

[00:22:27] Speaker 04:
I'd like to ask you the same question I asked the appellant here, which is, if we were to disagree with the district court's claim constructions, what issues would remain for us to consider on appeal?

[00:22:42] Speaker 04:
And is remand appropriate?

[00:22:45] Speaker 00:
I think remand would be appropriate.

[00:22:49] Speaker 00:
I mean, obviously, if we disagree with the district court's claim interpretation,

[00:22:57] Speaker 00:
summary judgment of infringement would have to be set aside and reviewed on remand.

[00:23:05] Speaker 00:
I think that there would be a doctrine of equivalence argument, which is a fact argument that has not been developed yet.

[00:23:14] Speaker 00:
Given the court's interpretation and the fact that there was a literal infringement, there would be a doctrine of equivalence issue on the element by element, all elements rule.

[00:23:22] Speaker 01:
Have you preserved that?

[00:23:23] Speaker 00:
Yes.

[00:23:24] Speaker 00:
If you look at the

[00:23:26] Speaker 01:
july twenty two thousand ten conference that was raised and also in the follow-up to that with the identification of claims okay so again hypothetically if we disagreed on the claim construction that wouldn't really end this case and we would still have to confront the validity challenge which I can't be sure if that's just an

[00:23:56] Speaker 01:
affirmative defense or a counterclaim.

[00:23:58] Speaker 01:
And likewise, we'd also have to address the issue of whether it was corrected to dismiss the invalidity defenses that were deemed to be insufficiently pledged, right?

[00:24:15] Speaker 00:
Yes, yes, yes.

[00:24:16] Speaker 00:
That's correct.

[00:24:17] Speaker 00:
So I only addressed the summary judgment of infringement issue.

[00:24:22] Speaker 00:
With respect to the motion to dismiss their

[00:24:25] Speaker 00:
counterclaim of invalidity for not having been collided appropriately under Iqbal Tawameli for just the bare bones pleadings with reference to the patent statute, as well as the affirmative defenses for failure to meet the fair notice standard under the Sixth Circuit law.

[00:24:41] Speaker 00:
That would have to be addressed as well, because that was a dispositive ruling made by the District Court, wherein she decided that the

[00:24:50] Speaker 00:
Rolex's reliance on matters outside the claims was inappropriate in response to the 12th motion.

[00:24:55] Speaker 00:
And then she exercised her discretion in denying the request for leave to amend.

[00:25:06] Speaker 03:
Okay.

[00:25:07] Speaker 03:
Any more questions?

[00:25:10] Speaker 03:
Okay.

[00:25:10] Speaker 03:
Thank you.

[00:25:10] Speaker 03:
Thank you, Council.

[00:25:19] Speaker 03:
Mr. Ranser.

[00:25:19] Speaker 02:
Thank you again, Your Honors.

[00:25:21] Speaker 02:
I'd just like to address a couple of points, specifically with regard to the ability or the attempt by the inventors to reserve inventions clearly outside the scope of the inventions.

[00:25:32] Speaker 02:
I'd like to draw your attention also then with regard to those paragraphs that Mr. Gibson just referenced.

[00:25:38] Speaker 02:
But in particular, column two, line 58, where it specifically starts with and states the reference number of figure one

[00:25:47] Speaker 02:
generally designates a vented software panel embodying the present invention.

[00:25:52] Speaker 02:
It doesn't say an example of the present invention.

[00:25:54] Speaker 02:
It doesn't say an embodiment of the present invention.

[00:25:56] Speaker 02:
It says the figures show the present invention, which clearly dictates and states this is what the inventors invented.

[00:26:03] Speaker 02:
The other thing I'd like to point out again, Your Honors, is the invention itself, when you read the specifications, it doesn't teach how you hide perforations.

[00:26:12] Speaker 02:
It teaches how you hide the entire perforate sidewalls.

[00:26:15] Speaker 02:
These sidewalls have perforations, but the claim state and the specification state that the entire perforate sidewalls are hidden from view from a position underneath the eaves.

[00:26:23] Speaker 02:
And again, it doesn't teach or disclose how you could possibly have perforations in the top wall that A, would not allow air to pass through, but then B, even if there are perforations in the top wall, how can you possibly hide these perforations?

[00:26:37] Speaker 02:
It says that nowhere in the spec.

[00:26:46] Speaker 02:
The other thing I'd like to address real quick, Your Honor, as set forth in our briefing with regard to the dismissal of the counterclaims of the affirmative defenses, we are also appealing as well the abuse of discretion standard there.

[00:27:01] Speaker 02:
The invalidated defenses were dismissed five years into the case.

[00:27:06] Speaker 02:
We were not able to replete them.

[00:27:08] Speaker 02:
We asked for leave as an alternative relief after the judge

[00:27:12] Speaker 02:
decided let's brief the issue as far as whether or not the pleadings even meet the new pleading standard, which was not even known at the beginning of the case, as set forth by the judge handing it down to the magistrate requiring us to brief the issue as far as what the correct pleading standards were.

[00:27:27] Speaker 02:
And then after the correct pleading standards were determined, then we were required to brief whether or not the invalidity counterclaim and invalidity affirmative defenses then met that standard.

[00:27:38] Speaker 02:
But the other point to make there, Your Honor, is within the same invalidity counterclaim,

[00:27:42] Speaker 02:
And within the same invalidity affirmative defense, we were able to, without any problem, still raise issues of 112, which the plaintiff quality has never complained about.

[00:27:53] Speaker 02:
If there's no further questions, Your Honor.

[00:27:56] Speaker 03:
Any more questions?

[00:27:57] Speaker 03:
Any more questions?

[00:27:58] Speaker 03:
Thank you.

[00:27:59] Speaker 03:
Thank you both.

[00:28:00] Speaker 03:
The case is taken under submission.