[00:00:04] Speaker 05:
Okay.

[00:00:05] Speaker 05:
Our third case this morning is No.

[00:00:06] Speaker 05:
17-1027, Reynolds Presto Products Inc.

[00:00:11] Speaker 05:
v. ITC.

[00:00:12] Speaker 05:
Mr. Schulman.

[00:00:13] Speaker 02:
May it please the Court?

[00:00:15] Speaker 02:
The Commission made clear legal error in assessing the infringement of both of the patents in suit.

[00:00:20] Speaker 02:
Turning to the 443 patent, if the Commission were bound by its own claim construction, twice articulated in the record at Appendix 45 and 49 as the portion of the slider that spreads apart the track to open the bag,

[00:00:34] Speaker 02:
then Presto would concede its own claim construction argument and simply apply that unchallenged claim construction to the accused slider.

[00:00:42] Speaker 02:
And doing so reduces the issue in this case on that patent to one question.

[00:00:47] Speaker 02:
Are the rectangular ribs outlined in yellow on page 16 of our brief in the picture of the accused product, are those ribs part of the spreader?

[00:00:56] Speaker 02:
If they are, and because Intiplast expert admitted on page 1145 of the appendix that there is a channel through there,

[00:01:02] Speaker 02:
and because the commission rejected Intiplast's argument that the spreader had to also push apart the track and have a channel all the way through the spreader, then that, that slider infringes the claims.

[00:01:18] Speaker 02:
The commission found non-infringement because it found that those ribs were analogous to the ribs 26 and 28 of the patented product.

[00:01:26] Speaker 02:
But that wasn't the question.

[00:01:28] Speaker 02:
The testimony instead was that those ribs were analogous to the flanges 31 and 33 of the patented product, which were indisputably part of the spreader.

[00:01:37] Speaker 02:
That's the question the commission needed to answer.

[00:01:41] Speaker 02:
That's the question on which there was abundant testimony, and that's the question that the commission ultimately ignored.

[00:01:47] Speaker 02:
First, in three places on the record, pages 1141, pages 1148 to 49, and page 1151, Intiplast expert admits

[00:01:57] Speaker 02:
that those flanges 31, 33 close the track when moving in one direction, and with the assistance of that middle finger 32, open the track when moving in another direction.

[00:02:08] Speaker 02:
Second, on page 933 of the record, in his direct testimony, he states that the proper construction of the spreader has three parts, those two flanges 31 and 33, and that separator finger.

[00:02:21] Speaker 02:
Finally, Presto's expert on page 904 of the record

[00:02:25] Speaker 02:
says that those ribs and the accused product do exactly what those flanges do and in fact are necessary because they provide the proper peeling force to guide the track to that wedge and spread them.

[00:02:37] Speaker 02:
They are necessary in order to have the spreading function.

[00:02:41] Speaker 02:
The commission's non-infringement analysis is comprised of three sentences.

[00:02:45] Speaker 00:
What evidence do you have that the ribs assist in opening as opposed to closing?

[00:02:52] Speaker 02:
The ribs on the accused product?

[00:02:54] Speaker 02:
That is on page 904 of the record.

[00:02:56] Speaker 02:
So that is Presto's expert.

[00:02:59] Speaker 02:
And he testifies in question 188.

[00:03:04] Speaker 02:
And he talks about in the end of the first paragraph in question 188, so this combination of spreader elements, which is the two outer flanges and triangular protrusions, he's talking about the accused product, work together to pull the zipper apart at a steep angle

[00:03:23] Speaker 02:
essentially peeling the two halves of the zipper apart.

[00:03:26] Speaker 02:
This necessarily decreases the peak forces required to open the zipper.

[00:03:30] Speaker 02:
He then says in the middle of the paragraph just below, he says, with relatively thicker and stiffer materials, such as the engaged interlocking zipper elements, it is necessary to provide a mechanical constraint in the form of the side flanges to help concentrate the stresses.

[00:03:44] Speaker 02:
And then he says, further, nothing in the patent requires distinguishing the flanges of the spreader

[00:03:49] Speaker 02:
from the closing ribs in the accused device they are just combined.

[00:03:52] Speaker 02:
So he is now saying explicitly, those ribs, the rectangular outline in the picture on page 16 of our brief, are doing exactly what 31 and 33 do.

[00:04:05] Speaker 02:
And the evidence in the record was that 31 and 33 have that closing function for that spreading function for exactly that reason.

[00:04:13] Speaker 05:
But the question isn't as what's meant by spread, right?

[00:04:17] Speaker 05:
Correct.

[00:04:18] Speaker 05:
And the dispute is whether the spreader is the finger that separates the two or whether it also includes these ribs, correct?

[00:04:30] Speaker 02:
Your Honor, we don't have to worry about what spreader means because we're taking the claim construction that hasn't been challenged.

[00:04:36] Speaker 02:
And if we just apply the claim construction that hasn't been challenged as the portion of the slider that spreads apart the track to open the bag and apply that to the accused product, that's the analysis that the

[00:04:48] Speaker 02:
the commission never did.

[00:04:49] Speaker 01:
What the commission did instead was, is said- Can I just, there is a kind of threshold question and maybe I'm misremembering.

[00:04:55] Speaker 01:
I thought that there was a serious question about whether you actually meaningfully presented this argument to the, to the commission.

[00:05:03] Speaker 01:
That when you challenged Judge Essex's ruling and maybe even before when you were arguing to Judge Essex, you never said that even if you just assume the 31 and 33,

[00:05:17] Speaker 01:
were constitute the spreader that the little ribs or whatever, I don't know what those numbers are anymore, that they actually are part of the spreader because they helped do the opening.

[00:05:30] Speaker 01:
So I'll stipulate to that, I still win.

[00:05:33] Speaker 01:
And that, I think, doesn't the commission say you've waived that argument?

[00:05:36] Speaker 02:
The commission does say we've waived that argument.

[00:05:38] Speaker 01:
So where did you make that?

[00:05:40] Speaker 02:
So all throughout the case, and keep in mind that in an ITC case, you don't get a claim construction initially, so you've got to argue

[00:05:47] Speaker 02:
the facts against all of the claim constructions.

[00:05:50] Speaker 02:
In our petition for review on pages 1971 to 1975 of the record, and specifically in 1974 to 1975, we go through the whole analysis where we talk about what those accused ribs do in conjunction with that wedge, and we always take the position that those ribs are for guiding and aligning and providing that steep angle the same way and without reference to any particular claim construction there.

[00:06:17] Speaker 02:
We're saying exactly what they do.

[00:06:19] Speaker 02:
And the claim construction that the commission adopted was the portion of the slider that spreads apart the track to open the bag.

[00:06:25] Speaker 02:
The construction that we advocated were the protrusions on the underside of the slider that contribute to spreading apart the track.

[00:06:31] Speaker 02:
And we're saying those are close enough, and for all intents and purposes here, we're going to say identical.

[00:06:37] Speaker 02:
And so the argument was the same concept.

[00:06:39] Speaker 02:
And this Court has said that you don't wait.

[00:06:42] Speaker 05:
Kennedy What did you say was the part of the spreader?

[00:06:45] Speaker 02:
Isn't that the question?

[00:06:48] Speaker 02:
The testimony in the case was that the flanges, it's basically a three-step process, Your Honor.

[00:06:56] Speaker 05:
The flanges 31 and 33 are indisputably... I think I understand that, but the question is whether you made this argument preserved.

[00:07:06] Speaker 05:
And I hear you saying that you describe the function of these flanges or whatever they are.

[00:07:17] Speaker 05:
But I think the question is, where did you testify that the existence of those flanges means that there's a spreader in the accused product?

[00:07:27] Speaker 02:
So, Your Honor, on page 1974 of the record, in 1975 of the record,

[00:07:37] Speaker 02:
We make specifically the argument, and this is on the petition for review, that the ribs, and this is at the end.

[00:07:44] Speaker 02:
So if you look at 1973, for example, which leads into 1974, we argue that the initial determination calls out the outer flanges in the accused product and says they can't be part of the record, they can't be part of the spreader because they function to force the zipper together.

[00:08:00] Speaker 02:
Kennedy Where are you on the page?

[00:08:01] Speaker 02:
I'm sorry, 1973 of the appendix.

[00:08:02] Speaker 01:
Kennedy Yeah, but where?

[00:08:04] Speaker 02:
At the very bottom.

[00:08:05] Speaker 02:
And then so we say,

[00:08:06] Speaker 02:
We're saying, okay, the commission has said those ribs can't be part of the spreader because they close.

[00:08:12] Speaker 02:
And going into that paragraph into the next page, we say what the ID misses, however, is that this is the exact functionality for the wedges 3133.

[00:08:21] Speaker 02:
This is the first two lines on page 1974 of the appendix.

[00:08:29] Speaker 02:
So it's 1973 to 1974.

[00:08:37] Speaker 02:
And at the bottom of 197.3, we identify the initial determination says, no, those ribs can't be part of the spreader because they have a closing function.

[00:08:47] Speaker 02:
And in the next paragraph, we say, that misses the point.

[00:08:50] Speaker 02:
The exact functionality of the wedges of the preferred embodiment also has an opening function.

[00:08:55] Speaker 02:
We don't reference.

[00:08:56] Speaker 01:
Can I just clarify something?

[00:08:58] Speaker 01:
Sure.

[00:08:58] Speaker 01:
So in the drawings in the 443,

[00:09:04] Speaker 01:
Is there something besides 31 and 33 that acts like a rib?

[00:09:10] Speaker 01:
What about those two little semicircular protuberances that are just north and south of 38?

[00:09:20] Speaker 01:
Yeah, I'm looking at, like, Figure 38.

[00:09:22] Speaker 02:
Yeah, so, Your Honor, if you look at, for example, Figure 3A.

[00:09:26] Speaker 02:
Yeah, that's right.

[00:09:28] Speaker 02:
Okay.

[00:09:29] Speaker 02:
So the ribs 31 and 33 are indisputably

[00:09:33] Speaker 02:
the spreader, part of the spreader.

[00:09:35] Speaker 02:
And the evidence was that in certain embodiments, those have an opening function because they guide the track to that separator finger 32.

[00:09:41] Speaker 02:
That embodiment's in Figure 5 and 6.

[00:09:43] Speaker 01:
And there's a big dispute about that.

[00:09:45] Speaker 01:
But what about some of this stuff that's more toward the right-hand side?

[00:09:50] Speaker 02:
So 26 and 28 is what the commission said.

[00:09:53] Speaker 02:
No, those ribs in the accused product are really 26 and 28.

[00:09:57] Speaker 02:
I see.

[00:09:57] Speaker 02:
Right?

[00:09:59] Speaker 02:
And what we're saying is that's not the question.

[00:10:01] Speaker 02:
because what the commission needed to address was the testimony that they act as 31 and 33 in figures 5 and 6.

[00:10:08] Speaker 02:
And that is what all that testimony was about that I just cited.

[00:10:13] Speaker 02:
The commission's entire analysis on page 63 of the appendix is three sentences.

[00:10:18] Speaker 02:
They can't, and essentially they say it can't be 20, those ribs in the accused product can't be the spreader because they close.

[00:10:25] Speaker 02:
But they didn't cite that any of the evidence that they have an opening function are analogous to 31 and 33, any of that evidence which I just cited to you.

[00:10:32] Speaker 02:
And the commission couldn't do that under the substantial evidence standard.

[00:10:36] Speaker 02:
They did exactly what they couldn't do.

[00:10:38] Speaker 02:
They ignored or overlooked essentially all of the evidence.

[00:10:41] Speaker 00:
Well, it's not true, right?

[00:10:42] Speaker 00:
Mr. Shields testified that these are part of the closing function only and are not part of the spreader, right?

[00:10:51] Speaker 02:
He testified they have.

[00:10:53] Speaker 00:
Isn't that right?

[00:10:54] Speaker 02:
He testified they have a closing function.

[00:10:57] Speaker 00:
And he expressly said they're not part of the spreader, correct?

[00:11:00] Speaker 02:
He said they're not part of the spreader because they have a closing function, which is a non sequitur.

[00:11:07] Speaker 02:
It is fundamentally inconsistent with everything the patent stands for to say that the parts can't have both a closing function and an opening function.

[00:11:14] Speaker 02:
In fact, he identifies plan just 31 and 33 as doing just that.

[00:11:18] Speaker 02:
So when the commission and the expert says it can't be part of the spreader because it has a closing function,

[00:11:24] Speaker 02:
That's not sufficient.

[00:11:25] Speaker 02:
The question is, whether it has a closing function or not, does it also have an opening function?

[00:11:30] Speaker 02:
And here the evidence was, let's just look at these ribs and say they have a closing function, end of case.

[00:11:34] Speaker 02:
And that's not, there was evidence to the contrary, which the commission did not address.

[00:11:41] Speaker 00:
So you're saying there's no evidence in this record that no one argued that these ribs are not part of the spreader and do not contribute to the opening function.

[00:11:53] Speaker 02:
there was evidence in the record that those ribs are part of the spreader and contribute to the opening function.

[00:11:58] Speaker 00:
No.

[00:11:59] Speaker 00:
I asked the opposite.

[00:12:00] Speaker 00:
There's are you saying that the other side did not put on any evidence that the ribs do not contribute to the opening function?

[00:12:10] Speaker 02:
That's what they claimed, but there wasn't a logical link between why they said that in actual opening.

[00:12:16] Speaker 02:
What they said was they only have a closing function, therefore they're not part of the spreader.

[00:12:21] Speaker 02:
And that link

[00:12:22] Speaker 02:
miss the evidence that they also have an opening function.

[00:12:25] Speaker 05:
But wait.

[00:12:26] Speaker 05:
So there was testimony that they only have a closing function.

[00:12:31] Speaker 02:
What Mr. Shields said is that they have, they do have a closing function.

[00:12:37] Speaker 05:
It's what?

[00:12:38] Speaker 05:
Now, by the way, you argued that you can have both an opening and a closing function.

[00:12:43] Speaker 05:
Yes.

[00:12:43] Speaker 05:
You just stated that, as I understood it, that there was testimony that they only have a closing

[00:12:50] Speaker 02:
Mr. Shields testified they only have the closing function.

[00:12:54] Speaker 02:
But that's not.

[00:12:54] Speaker 05:
That would be sufficient, wouldn't it?

[00:12:56] Speaker 02:
No, Your Honor.

[00:12:56] Speaker 02:
What this Court has said under the Substantial Evidence Act, going way back to 1951 in the Supreme Court in the Universal case, said substantial evidence is not just looking for the record and finding one thing that supports it.

[00:13:09] Speaker 02:
You have to address the evidence of the contrary under the Administrative Procedures Act.

[00:13:13] Speaker 02:
This is an administrative decision.

[00:13:16] Speaker 02:
And the Court ignored all of the testimony about

[00:13:19] Speaker 02:
the analogous ribs to the flanges 31 and 33.

[00:13:22] Speaker 02:
I see I'm into my rebuttal time.

[00:13:24] Speaker 02:
If you have no other questions.

[00:13:29] Speaker 05:
Mr. Chardine, is that how you pronounce it?

[00:13:36] Speaker 03:
I guess I'll just get right into addressing Presto's arguments.

[00:13:42] Speaker 03:
Well, first of all, the Commission correctly construed

[00:13:46] Speaker 03:
the spreader to be the portion of the slide that spreads apart the closure mechanisms, i.e.

[00:13:50] Speaker 03:
the zipper to open the bag.

[00:13:52] Speaker 03:
One of our skill in the art reading the plain language of the claims along with specification would easily understand that one, the claims call for in the plain language a spreader for separating the closure profiles, includes a channel there through, and then reading the specification would understand at appendix page 174 on the columns 5 and 6 that the

[00:14:15] Speaker 03:
spreader comprises the flanges 31, 33, and the channel there through.

[00:14:19] Speaker 03:
It does not include any other element.

[00:14:21] Speaker 03:
It does not include, as Presto argues, does not include finger 32.

[00:14:25] Speaker 01:
And that's because even though in the initial setup, as shown in several of the figures, the plastic goes between 31 and 33 and around 32, the finger, when it's

[00:14:43] Speaker 01:
That's not, I think, as I understood your brief, you said that's not actually for opening.

[00:14:48] Speaker 01:
The actual opening doesn't occur until after the setup, and then it's always going around the 31 and 33, not between them.

[00:14:56] Speaker 03:
Correct.

[00:14:56] Speaker 03:
That's one of the reasons why finger 32 is not part.

[00:15:00] Speaker 03:
Firstly, I'd say finger 32 is expressly described on appendix page 174, column six, as simply a stop for the slider.

[00:15:08] Speaker 03:
It stops it from sliding off the bag as you slide to the left.

[00:15:11] Speaker 03:
to close the bag.

[00:15:12] Speaker 03:
There's a corresponding finger 38.

[00:15:13] Speaker 03:
You get in that same part of the record.

[00:15:16] Speaker 03:
In the specification, column 6, appendix page 174, that stops it from sliding off to the right as you open the bag.

[00:15:22] Speaker 01:
So this morning we heard mostly, or maybe even only, an argument that wasn't contesting the claim construction, as I understood it, but rather was arguing that taking that claim construction as a given, the accused product has

[00:15:41] Speaker 01:
things that serve that same function of, which would be analogous to 26 and 28 in figure 3A of the patent, but aren't exactly the same as 31 and 33.

[00:15:56] Speaker 01:
What?

[00:15:56] Speaker 01:
Well, exactly.

[00:15:58] Speaker 03:
That's just incorrect.

[00:16:01] Speaker 03:
The protrusions and the accused product served exactly as in the ribs 26, 28 in the patent, you know, appendix page 174, column five.

[00:16:11] Speaker 03:
to close the bag.

[00:16:12] Speaker 03:
Totally opposite function from what's in the plain language.

[00:16:15] Speaker 01:
So on page 904 of the appendix, they have their password, I gather, in answer to question 188, saying the contrary.

[00:16:28] Speaker 03:
No.

[00:16:28] Speaker 03:
What they ignored was right before that.

[00:16:30] Speaker 03:
I have it outlined here.

[00:16:32] Speaker 03:
Right in the middle of that paragraph, he says expressly, these side flanges hold the interlocking zipper members together.

[00:16:38] Speaker 03:
until just before the triangular portion of the spreader forces them apart.

[00:16:42] Speaker 03:
So he's admitting right there that they serve a closing function exactly as in the patent, RIBS 2628, that they serve a closing function.

[00:16:51] Speaker 01:
And the figures they pull... But Mr. Shulman says, sure, I'll stipulate they serve a closing function.

[00:16:57] Speaker 01:
Why in the world would you think that doesn't, that means that they don't serve an opening function?

[00:17:01] Speaker 03:
Right, again, one of the boring skills in our reading and specification would understand that

[00:17:07] Speaker 03:
Every element of slider is distinctly described and shown in the figures.

[00:17:12] Speaker 03:
There's the ribs 2628.

[00:17:13] Speaker 03:
There's the fingers.

[00:17:14] Speaker 03:
There's the spreader.

[00:17:15] Speaker 03:
Every one of these elements have a different function.

[00:17:19] Speaker 03:
They cannot just say that everything contributes.

[00:17:21] Speaker 03:
This is just a non-starter.

[00:17:22] Speaker 03:
It just muddies the waters, which is not in accordance with proper claim construction principles, as ALJ correctly found in the appendix page 48.

[00:17:30] Speaker 01:
Where in the appendix is, I gather, Mr. Shields' testimony that says,

[00:17:37] Speaker 01:
26 and 28 in the patented figures, in the patent figures, and or the ribs in the accused products serve only a closing function and not an opening function.

[00:17:56] Speaker 03:
Appendix page 990, question 202.

[00:17:59] Speaker 01:
Question what?

[00:18:00] Speaker 03:
Question 202.

[00:18:01] Speaker 01:
No, I'm sorry, page what?

[00:18:02] Speaker 03:
Appendix page 990.

[00:18:04] Speaker 03:
990?

[00:18:05] Speaker 03:
That's Shields rebuttal.

[00:18:07] Speaker 03:
witness statement.

[00:18:09] Speaker 01:
Which question now?

[00:18:10] Speaker 03:
Question 202.

[00:18:11] Speaker 01:
Okay.

[00:18:13] Speaker 03:
Where, you know, he was responding to the contention from their expert that the side of protrusion's ribs form a channel.

[00:18:20] Speaker 03:
He says, no, I do not.

[00:18:22] Speaker 03:
As I just explained, the ribs are not part of the spreader in claim one, so any space between those ribs does not form a channel through the spreader, as required by claim one.

[00:18:30] Speaker 03:
In fact, the 443 patent defines the space between your ribs 2628 as the cavity, not the channel.

[00:18:35] Speaker 03:
The cavity between the ribs decides to allow the closure profiles 130-131.

[00:18:38] Speaker 03:
Enough room to pass through the cavity is still forced to closure profiles 130-131 to engage.

[00:18:45] Speaker 03:
Thus, the cavity is separate from the claim channel.

[00:18:47] Speaker 03:
It's not part of the spreader separating function.

[00:18:49] Speaker 03:
Instead, the ribs that define the cavity force the closure profiles together instead of forcing them apart, which is a function of the spreader.

[00:18:56] Speaker 03:
Again, the plain language of the claims calls for a spreader that separates the closure profiles.

[00:19:00] Speaker 03:
This is not the case with the protrusions in the accused product.

[00:19:04] Speaker 03:
which equate to the ribs 2628.

[00:19:06] Speaker 03:
Also, they cannot get around a channel there through.

[00:19:09] Speaker 03:
There is no channel there through.

[00:19:11] Speaker 03:
In the accused product, as ALJ correctly found at appendix pages 62 and 63, we found, based on the record, that the accused product solely has a spreader that comprises a closed one-piece structure.

[00:19:25] Speaker 03:
No channel there through.

[00:19:29] Speaker 03:
Expert also cited other differences between the accused product as well.

[00:19:34] Speaker 03:
Well, with Presto's expert's testimony that it cannot be equivalent to the claim construction accused product.

[00:19:50] Speaker 03:
If there's any other questions on the 443 patent, just really stay with respect to 880 patent.

[00:19:57] Speaker 03:
Again, the record is clear.

[00:19:59] Speaker 03:
The plain language of the claims, the specification, I want to understand with respect to deflection surface limitation, deflection surface position about 45 degrees from the top wall that the patentee contemplated 36 degrees.

[00:20:12] Speaker 03:
However, they specifically claimed 40, 50 degrees, according to me.

[00:20:16] Speaker 03:
No satisfaction of the technical prong since the domestic issue product is 29 degrees.

[00:20:22] Speaker 01:
Can I ask you about that?

[00:20:24] Speaker 01:
What's the doctrinal rubric for saying something that feels like it makes a lot of common sense?

[00:20:31] Speaker 01:
So this is a question about what's the doctrine that says the specification says 30 to 60.

[00:20:37] Speaker 01:
They very clearly chose 40 to 50 in the claims.

[00:20:41] Speaker 01:
So something down around 30 just cannot be either literally about 40 or equivalence.

[00:20:47] Speaker 01:
What's?

[00:20:50] Speaker 03:
Well, there's an established case law that says if you disclose something you don't claim it, you're dedicated to the public.

[00:20:55] Speaker 03:
I'm sure that's what you're looking for.

[00:20:56] Speaker 03:
But also on top of that, of course, we have a prosecution history estoppel, the appendix pages 554 and 555, where Patney made clear, unmistakable statements that that's the definition of that limitation.

[00:21:08] Speaker 03:
It's 40 to 50 degrees from the top wall.

[00:21:10] Speaker 03:
They clearly stated that.

[00:21:11] Speaker 01:
It's about 40 to 50 degrees.

[00:21:12] Speaker 03:
It's about 40 to 50.

[00:21:13] Speaker 03:
And clearly, 29 degrees is not about 40 to 50 degrees.

[00:21:17] Speaker 01:
That's the question.

[00:21:18] Speaker 01:
Clearly, I gather that Judge Essex's main point, maybe the core point, was it can't possibly be about 40 or even if it's equivalent.

[00:21:32] Speaker 01:
when the patent specification uses the broader range.

[00:21:37] Speaker 01:
They knew exactly how to cabin it, and they cabin it, and you can't.

[00:21:42] Speaker 01:
But it's the doctrinal point that I'm, the doctrinal label for what seems a common sense point that I'm asking about.

[00:21:51] Speaker 03:
I was going to establish Clay's Law.

[00:21:53] Speaker 03:
He disclosed something, one more skill in the art, but understand that the patentee deliberately did not claim this range.

[00:21:59] Speaker 03:
They contemplated 30 to 60.

[00:22:01] Speaker 03:
29 degrees even arguably outside of about 30 to 60, but they did not claim it.

[00:22:06] Speaker 03:
They deliberately carved out 40 to 50 degrees.

[00:22:10] Speaker 03:
And on top of that, again, you have the prosecution history, the stopper, and the plain language of the claims.

[00:22:16] Speaker 03:
40 to 50 does not encompass 29 degrees.

[00:22:21] Speaker 03:
And with the accused product, it is with respect to the sidewall protrusion instead of a top wall protrusion, so it's not oriented with respect to the

[00:22:28] Speaker 03:
Top wall, so it's 90 degrees from the top wall, again, outside of that range.

[00:22:32] Speaker 03:
And similarly for engagement surface limitation.

[00:22:35] Speaker 03:
Again, there's clear and unstable statements made where they clearly analogize the discontinuities in the Porsche reference to discontinues that are not part of the claim invention, namely the discontinuous shoulders.

[00:22:47] Speaker 03:
So the accused product and the investigatory product have one or more of these discontinuities.

[00:22:51] Speaker 03:
I discontinue shoulders.

[00:22:53] Speaker 03:
which prevent the engagement service from extending continuously along the hook link quarterly.

[00:22:57] Speaker 01:
Do I understand correctly that it would be sufficient to affirm the denial of 337 violation as to the 002 to conclude that the technical prong, as it's called, is not satisfied by the 29 degrees?

[00:23:17] Speaker 03:
Yes.

[00:23:17] Speaker 03:
There's a number of reasons that would be one reason for affirming.

[00:23:22] Speaker 03:
no violation of the OO2 patent.

[00:23:25] Speaker 03:
There's no further questions.

[00:23:27] Speaker 03:
Okay, thank you.

[00:23:33] Speaker 05:
Thank you, Your Honor.

[00:23:37] Speaker 05:
Mr. Hogg, is that how you pronounce it?

[00:23:39] Speaker 04:
That is, I pronounce it Hogg, but... Hogg, okay.

[00:23:43] Speaker 04:
You're the expert.

[00:23:44] Speaker 04:
A lot of people say Hogg, and I'm not going to correct them.

[00:23:48] Speaker 04:
The only thing I want to add to that is that there was some

[00:23:52] Speaker 04:
allusion to finger 32 in the drawings as being participating in the spreading function.

[00:23:58] Speaker 04:
And if you look at the specification, there's only one job and one job only for finger 32, and that's to close the bag and prevent the bag from stopping the slider from going off the bag.

[00:24:11] Speaker 04:
There has been some allusion to a testimony from our expert, an Anoplast expert,

[00:24:20] Speaker 04:
that is supporting their position, but there was an interesting set of cross-examination questions of the figures, like four through eight.

[00:24:30] Speaker 04:
You know, if you look at these figures in the abstract, doesn't it really look like finger 32 spreading things apart and things like that?

[00:24:37] Speaker 04:
Well, that was kind of an absurd bunch of testimony that had nothing to do with the actual text of the patent.

[00:24:44] Speaker 04:
If you follow the text of the patent,

[00:24:46] Speaker 04:
It's either opening or closing, and this figure 32 is shown in figure three or four when the bag is being closed.

[00:24:56] Speaker 04:
It's not spreading.

[00:24:57] Speaker 04:
The bag is being closed by the ribs.

[00:24:59] Speaker 04:
The ribs in the patent, they only have one job, and that is to close the bag.

[00:25:04] Speaker 04:
And the ribs in the accused products, they close the bag.

[00:25:09] Speaker 04:
That's all they do.

[00:25:10] Speaker 04:
They don't spread anything.

[00:25:12] Speaker 04:
One thing you're missing when you look at the drawing is that there's a relief

[00:25:16] Speaker 04:
to these things, like the spreader may be lower and then the ribs may be higher or something like that.

[00:25:24] Speaker 04:
That all depends on how you look at it, but the drawings aren't always that clear.

[00:25:32] Speaker 04:
So there, I did want to also say that there was the discontinuous, continuous argument, evidence that the patent

[00:25:47] Speaker 04:
002 is limited to the engagement hooks have to be one-sided, one hook on each side, and the acute products had two on each side.

[00:26:02] Speaker 04:
And that was a matter of a stopple.

[00:26:05] Speaker 04:
And that's the only thing I wanted to add.

[00:26:06] Speaker 04:
Okay.

[00:26:08] Speaker 05:
Thank you, Mr. Chairman.

[00:26:11] Speaker 05:
Mr. Shillman, you've got a little under two minutes.

[00:26:17] Speaker 02:
Thank you, Your Honor.

[00:26:18] Speaker 02:
I'm going to hope to get to three points, which is all I want to make.

[00:26:21] Speaker 02:
I heard Mr. Jordan claim, talk about the function of the spreader as pushing apart the track and there not being a channel.

[00:26:28] Speaker 02:
What they want to do is limit the construction of the spreader to a piece that pushes the tracks apart and has a channel all the way through the spreader.

[00:26:36] Speaker 02:
They advocated for that.

[00:26:37] Speaker 02:
And on page 45 of the appendix, that construction was not adopted as part of the construction of spreaders.

[00:26:43] Speaker 02:
So all we're left with

[00:26:45] Speaker 02:
is the portion of the slider that spreads apart the track to open the bag, that those other things that it has to spread it apart and have a channel through the whole length.

[00:26:52] Speaker 02:
The commission didn't adopt that argument.

[00:26:55] Speaker 02:
I want to switch to turn to page 985 of the appendix, because we just heard Mr. Hogue talk about this confusion about the separator finger and what it does.

[00:27:06] Speaker 02:
And I want the Court to be aware of what Mr. Shields' direct testimony was.

[00:27:10] Speaker 02:
It's the first full paragraph at the top of 985.

[00:27:13] Speaker 02:
This is from his direct witness statement.

[00:27:15] Speaker 02:
Dr. Reinholdt also overly complicates the term spreader when he says it has three protrusions, including a middle protrusion and two other protrusions off to the side.

[00:27:24] Speaker 02:
While that may be true in some bodyments, exhibit example 4B, that is not necessarily true in all embodiments.

[00:27:32] Speaker 02:
So, Judge Toronto, to your question, yes, it does look obvious like that's what's happening in figures five and six.

[00:27:38] Speaker 02:
And in fact, Mr. Shields, before he flip-flops multiple times on cross-examination,

[00:27:44] Speaker 02:
said consistently in his direct testimony, both there and on page 933, that, yes, that is what is shown in the patent, that that middle finger has a separating function.

[00:27:53] Speaker 02:
I want to briefly talk about the prosecution history estoppel argument.

[00:27:59] Speaker 02:
For both the hook length and the top wall limitation, the applicants never made a clear and unambiguous disavowal of what the claim is not, unmistakable disavowal

[00:28:13] Speaker 02:
doesn't hinge on a clear statement of what the claim is.

[00:28:16] Speaker 02:
112 already requires that.

[00:28:18] Speaker 02:
This court said it requires a clear and unmistakable disavowal.

[00:28:22] Speaker 02:
In other words, what the claim is not.

[00:28:24] Speaker 02:
And you can look all through the prosecution history.

[00:28:26] Speaker 02:
The applicants never said the claim does not have multiple hooks.

[00:28:31] Speaker 02:
or the invention does not have multiple hooks, and the invention cannot be oriented to the rear wall.

[00:28:36] Speaker 01:
What about the 29 is not close enough to 40, either to be about 40 or the equivalent of about 40?

[00:28:44] Speaker 02:
So, Your Honor, Mr. Jardine's argument was, well, there's this dedication to the public argument.

[00:28:49] Speaker 02:
The dedication to the public issue only arises once we've assumed there's no literal infringement.

[00:28:55] Speaker 02:
That's a doctrine of equivalence issue.

[00:28:57] Speaker 02:
That's an equitable doctrine of equivalence issue.

[00:29:00] Speaker 02:
We're arguing that, literally,

[00:29:01] Speaker 02:
if you apply the cohesive case in which this Court has said that 25 microns was literally about greater than 30 microns, and, in fact, could go all the way down to 23.044.

[00:29:12] Speaker 05:
I thought there was, I thought that the prosecution history showed that they distinguished the prior art by the angle, and they adopted a different range for the angle and existed in the prior art, and that was why they said that the prior art

[00:29:30] Speaker 02:
So, Your Honor, that's not quite what happened.

[00:29:33] Speaker 02:
In fact, the limitation about 40 to 50 degrees was always in the art, was always in the claim, rather.

[00:29:40] Speaker 02:
So that was never amended.

[00:29:41] Speaker 05:
So if we're looking at any of this... But it doesn't make any difference whether that was in the original or not, as long as there's argument that that's how the prior art should be distinguished.

[00:29:51] Speaker 05:
Well, Your Honor, that's where... It has to be stopped by argument as well as by a claim amendment.

[00:29:56] Speaker 02:
You're right, Your Honor, and that's where

[00:29:58] Speaker 02:
There has to be a clear and unambiguous disavowal of scope.

[00:30:01] Speaker 02:
In other words, the applicant would have had to say at some point, these claims do not cover anything below about 40.

[00:30:09] Speaker 05:
And what they said was... You can't say this is different from the prior art because it has a different angle?

[00:30:15] Speaker 02:
Well, Your Honor, all prosecution history characterizes the claim and characterizes the prior art.

[00:30:20] Speaker 02:
And that's why that's why this Court has said in Phillips that prosecution history is less relevant.

[00:30:26] Speaker 02:
And there must be a clear and unambiguous disavowal.

[00:30:28] Speaker 02:
What you have to do is characterize what your invention is not.

[00:30:32] Speaker 01:
Can I just ask this?

[00:30:33] Speaker 01:
So I mean, I think you just cabined this point about 29 and 40 as not being an equivalence argument.

[00:30:45] Speaker 01:
But 29 is, in fact, literally about 40 in context.

[00:30:51] Speaker 01:
Does that make this a factual finding?

[00:30:55] Speaker 02:
Yes, Your Honor.

[00:30:57] Speaker 01:
So why couldn't the Commission reasonably find that 29 is just not about 40?

[00:31:07] Speaker 01:
It's relying in part on the evidence of the specification that exhibits a very clear choice about numbers.

[00:31:15] Speaker 02:
Because the analysis when you have about instructs, number one, you look to what the purpose of that numerical limitation is.

[00:31:22] Speaker 02:
That's the cohesive case.

[00:31:24] Speaker 02:
All of the evidence in the case was that 29 degrees meets that purpose, both from the intrinsic evidence, which says something down to about 30 would meet that limitation, and the extrinsic evidence, all of the testimony about what does that deflection surface actually do?

[00:31:40] Speaker 02:
And the 29 degrees actually works.

[00:31:42] Speaker 02:
Nobody disputes that.

[00:31:43] Speaker 02:
So the only evidence in the case, and this is the only evidence IntiPLAST put on, is it can't be 29 degrees because 29 is about 2 thirds of 40.

[00:31:52] Speaker 02:
That mathematical fact ignores

[00:31:55] Speaker 02:
infringement test, what you have to do under cohesive.

[00:31:58] Speaker 02:
So it's not that the commission just said, well, we reasonably look at the evidence and we say, oh, this 29 degrees is not literally.

[00:32:04] Speaker 02:
There was actually no evidence on that.

[00:32:06] Speaker 02:
The only evidence was this irrelevant mathematical fact, which it didn't matter here because cohesive says you don't start with the numbers.

[00:32:14] Speaker 02:
You don't just look at the numbers and say, oh, this doesn't make sense because the numbers are too big.

[00:32:19] Speaker 02:
You dig down deeper.

[00:32:20] Speaker 02:
And in fact, in cohesive, the court said,

[00:32:22] Speaker 02:
In that particular case, we don't know whether between 23.044 and between 25.

[00:32:27] Speaker 02:
This is at 1368 to 1370 of cohesive.

[00:32:30] Speaker 02:
We don't know between 23.044 and 25.4 whether or not that's literally greater than about 30 microns.

[00:32:37] Speaker 02:
We actually have to look at the purpose and the function.

[00:32:40] Speaker 02:
That was what this court said about construing about.

[00:32:43] Speaker 02:
So in this case, when you look at the purpose and the function, the only evidence was that, yes, 29 degrees is literally about 40 because the specification says

[00:32:52] Speaker 02:
the purpose works all the way down to about 30 and there's no dedication to the public issue unless the court construes the literal scope of the claim more narrowly than I think it deserves under cohesive.