[00:00:00] Speaker 00:
For argument this morning is 16 1 this afternoon is 16 1 3 4 9 skedco versus strategic operations you ready mr. Park

[00:00:33] Speaker 03:
Good afternoon, Your Honors, and may it please the Court.

[00:00:35] Speaker 03:
I'm Brian Park of Stowell Reeves, here on behalf of the plaintiff appellant, Skedco, with me as my partner, Nathan Brunette.

[00:00:42] Speaker 03:
All the issues presented in this appeal turn on two key claim constructions, one regarding the valve, the other regarding the controller connected to the valve and the pump.

[00:00:53] Speaker 03:
Both of those issues are governed by the well-settled law of the circuit,

[00:00:57] Speaker 03:
dictating how claim terms are to be construed and what the proper scope and meaning to be given them is.

[00:01:04] Speaker 00:
And what you're seeking here is you're not seeking summary judgment.

[00:01:06] Speaker 00:
You're just saying vacate norefactual disputes if your construction prevails?

[00:01:11] Speaker 03:
At a minimum, that's correct, Your Honor.

[00:01:13] Speaker 03:
There should be a reversal in remand.

[00:01:16] Speaker 03:
But there is ample basis in the record for summary judgment of infringement on behalf of the plaintiff.

[00:01:24] Speaker 03:
On the issue of the valve, everyone here agrees that there is a valve inside the pump.

[00:01:30] Speaker 03:
The question is whether that valve is somehow disqualified from being a valve because of where it's located.

[00:01:37] Speaker 03:
The law of the circuit, I'm claiming... On the accused device.

[00:01:40] Speaker 03:
On the accused device, that's correct.

[00:01:41] Speaker 03:
All four versions, versions A, B, C, and D. The law of the circuit on that point is elegant and clear.

[00:01:48] Speaker 03:
Claim terms are to be given their full breadth of the plain, ordinary meaning unless

[00:01:54] Speaker 03:
One of the narrow exceptions applies.

[00:01:57] Speaker 03:
One is where the patentee has served as his or her own lexicographer.

[00:02:01] Speaker 03:
Another, where there has been an expressed disavowal or a disclaimer of claim scope, for example, in response to an office action.

[00:02:08] Speaker 03:
And the third is where a certain claim construction would render the invention as claimed inoperable, in which case, as a matter of technology, it's nonsensical and illogical.

[00:02:22] Speaker 05:
So when we look at your patent,

[00:02:24] Speaker 05:
We see figures, and we see the valve, and we see the pump, and we see the valve as something that's separate from the pump, right?

[00:02:33] Speaker 03:
Yes, Your Honor, and the embodiment sounds correct.

[00:02:35] Speaker 05:
So why is it that we can also think of the claimed valve and the claimed pump as having one located inside the other?

[00:02:49] Speaker 05:
Or go ahead, I'd like to hear your comment on that.

[00:02:53] Speaker 03:
Yes, Your Honor.

[00:02:54] Speaker 03:
So the way the intrinsic evidence is written, the prosecution history and the specification, even though there is no express exemplary embodiment saying, yes, the valve can be co-housed or integral with the pump inside the pump, the law states that the full breadth of the plain ordinary meaning of valve and pump technologies that are well understood by those of ordinary skill includes any configuration unless

[00:03:19] Speaker 03:
Of course, there is some disclaimer or disavowal.

[00:03:23] Speaker 05:
For you to win, does the valve inside the Q's product pump have to operate independently of the pump in the sense that the pump doesn't need the valve inside of it?

[00:03:36] Speaker 03:
In this case, Your Honor, we don't believe that that has to be the case.

[00:03:40] Speaker 05:
Because in your view, the valve inside the accused product's pump can sort of serve double duty in the sense that it can meet the claim limitation of a valve while at the same time be one component of the claimed pump at the same time.

[00:03:58] Speaker 03:
That's one element of our position, Your Honor.

[00:04:00] Speaker 03:
The other element is that, in fact, based on the expert analysis and reports of the kind

[00:04:06] Speaker 03:
the plaintiff's expert Dr. Stevick, in fact, the valve and the pump operate independently.

[00:04:11] Speaker 03:
That if the valve components that are co-housed with the pump are removed, as he did in his experimentation set forth in his expert reports, the pump still pumps.

[00:04:21] Speaker 03:
The citations to the joint appendix on that point are 3306 to 11 and 3331 to 37.

[00:04:29] Speaker 03:
So under either of those scenarios,

[00:04:33] Speaker 03:
we would prevail.

[00:04:33] Speaker 05:
And the valve in your patent, what is that valve?

[00:04:42] Speaker 05:
What's that valve's function?

[00:04:43] Speaker 05:
What is it serving?

[00:04:44] Speaker 05:
And then what is the valve in the Q's products pump function?

[00:04:50] Speaker 03:
What function is it serving?

[00:04:54] Speaker 03:
The functions are the same, to transfer fluid through the various fluid passageways in fluid communication with the pump.

[00:05:01] Speaker 05:
One of the valves isn't

[00:05:03] Speaker 05:
I thought the accused product of the valve inside that pump was for preventing backflow?

[00:05:10] Speaker 05:
No?

[00:05:10] Speaker 03:
There are valves that do prevent backflow, but the claim language is the valve in fluid communication with the pump.

[00:05:20] Speaker 03:
Preventing backflow is one way that the valve and the pump can be in fluid communication with each other.

[00:05:25] Speaker 03:
And that goes to the point of the valves that are co-housed internally within the pump housing.

[00:05:31] Speaker 03:
As set forth in our briefs, there are also other adjustable valves in each of the four versions of the accused products that satisfy the function of the valve that are also connected and in fluid communication with the pump.

[00:05:46] Speaker 03:
The question your honor raises regarding the overlapping function and structure is similar to the decisions of this court in the PAPS digital camera case from 2015 and the Rex Nord versus Latrum case in 2001.

[00:06:01] Speaker 03:
In both of those cases, the issue was whether two separately claimed structures, in one case interface device and data transmit receive device, in Rex Nord it was link module portion and cantilevered portion, required separate structures in order to be satisfied.

[00:06:18] Speaker 03:
The law of this circuit is that the use of different claim terms connotes different meanings, not necessarily different structures.

[00:06:26] Speaker 03:
So in each of those cases, Pabst and Rex Nord, court held that

[00:06:31] Speaker 03:
Even though there are two separate claim terms, yes, in fact, they can be satisfied by one integral structure.

[00:06:41] Speaker 00:
But it's hard for me to think of coming up with legal doctrines from cases that are very specific as to what the claim language says, what the device we're talking about is, what the specification says.

[00:06:53] Speaker 00:
It seems to me each of them, probably including Becton, can be differentiated from each other.

[00:06:59] Speaker 00:
But I'm not seeing a clear rule other than that.

[00:07:03] Speaker 03:
That's a good point, Your Honor.

[00:07:05] Speaker 03:
And you're exactly right.

[00:07:06] Speaker 03:
Because the clear rule is that the intrinsic evidence

[00:07:10] Speaker 03:
is supreme, each case is specific based on what the intrinsic evidence in that case says.

[00:07:17] Speaker 03:
So in the Beckton case, for example, Your Honor, that you raised, in that case, it was determined that the two separate claim terms could not be satisfied by one integral structure, because to do so based on the specification in that patent, in that case, it would render the invention inoperable and inconsistent with technological concepts taught by the patentee.

[00:07:40] Speaker 03:
That's not the case here with a valve and a pump any more than it was in Pabst or Rex Nord.

[00:07:46] Speaker 04:
I was going to ask you.

[00:07:48] Speaker 04:
We're dealing here with claims 18, 19, and 20.

[00:07:51] Speaker 04:
And I think the, correct me if I'm wrong, but I think the focus of the appeal here is on the third and fourth limitations of 18.

[00:08:03] Speaker 04:
At least one valve in fluid communication is said pump, which I think you've been discussing.

[00:08:09] Speaker 04:
And then a controller connected to said pump and said at least one valve.

[00:08:13] Speaker 04:
Those seem to be the limitations that we discussed.

[00:08:17] Speaker 04:
Those are structural limitations.

[00:08:20] Speaker 04:
I mean, you're talking about where something is placed in relation to something else, correct?

[00:08:25] Speaker 04:
They are structural limitations.

[00:08:27] Speaker 04:
Do we have to worry about how these things operate at all?

[00:08:31] Speaker 04:
Since, I mean, as I read this claim, and in particular, the limitations

[00:08:37] Speaker 04:
that we're just discussing.

[00:08:39] Speaker 04:
Everything is just, where is something physically located?

[00:08:43] Speaker 04:
Does operability come into play?

[00:08:45] Speaker 03:
It does, Your Honor, because there are other terms.

[00:08:49] Speaker 03:
There's other language in the claims that keys those separate structures or separate claim terms together in terms of whether they're integral, co-housed, or separate.

[00:09:00] Speaker 03:
For example, the term in-fluid communication.

[00:09:03] Speaker 03:
That describes the functional operation between the pump

[00:09:07] Speaker 03:
and the valve, the term connected to determines how the controller interacts directly or indirectly with the pump and the valve.

[00:09:15] Speaker 03:
So to your honor's question, yes, the court should be concerned with the structural definition of each of those plan terms and whether they're required to be integral, separate, overlapping, co-housed, however you want to describe it.

[00:09:31] Speaker 03:
But there is another layer to it beyond just the structure.

[00:09:35] Speaker 03:
On the connected to issue you raised, Your Honor.

[00:09:38] Speaker 03:
That's the fourth limitation.

[00:09:39] Speaker 03:
This is the fourth limitation.

[00:09:40] Speaker 03:
And Your Honor is correct that it's element number three and number four.

[00:09:44] Speaker 03:
The term connected to describes an operative interaction.

[00:09:49] Speaker 03:
In the Primatech case from 2003, this court held that varied use of a disputed claim term in a written description demonstrates the breadth of the term rather than a limited definition.

[00:09:59] Speaker 03:
Here, not only is there no disclaimer or disavowal or special definition given in the specification or the prosecution history to the term connected to, rather, quite to the contrary, the specification is chock full of examples of direct connections and indirect connections between all sorts of invention components.

[00:10:19] Speaker 00:
Where did the district court then come up with this?

[00:10:22] Speaker 03:
That's a good question, Your Honor.

[00:10:24] Speaker 03:
We don't know.

[00:10:25] Speaker 03:
Just as with the valve pump limitation, when the district court

[00:10:28] Speaker 03:
began with a presumption that separate claim terms require separate structures, which really is turning the law on its head.

[00:10:35] Speaker 03:
It's the other way around.

[00:10:37] Speaker 03:
In terms of connected to, the district court added the four additional limitations, which are not found in the specification, certainly not as being required.

[00:10:47] Speaker 03:
Quite to the contrary, the specification talks about, and this is appendix 112, 113 from the patent, talks about the controller, the pump, the valve,

[00:10:57] Speaker 03:
the reservoir, the conduit, being able to be mix and matched, connected directly, connected indirectly with intervening structure.

[00:11:06] Speaker 03:
So on the issue of connected to, there is a very ample predicate, ample basis in the intrinsic evidence for the broad, the full breadth of the plan ordinary meaning.

[00:11:17] Speaker 05:
So if we hypothetically were to conclude

[00:11:24] Speaker 05:
connected to as that term is used in the claim doesn't have to be directly connected to.

[00:11:29] Speaker 05:
It could be indirect.

[00:11:31] Speaker 05:
Is that enough, or do we have to go further in terms of doing a further construction of the term connected to?

[00:11:41] Speaker 03:
That would be enough, Your Honor.

[00:11:42] Speaker 05:
Because I know there was more about independent or physical versus wireless.

[00:11:49] Speaker 05:
I mean, to what degree do we have to go into all those details?

[00:11:54] Speaker 03:
If the court were to confirm that either an indirect or a direct connection satisfied the claim limitations, that would be enough.

[00:12:03] Speaker 03:
In fact, even if this court affirmed the markman phase construction of the district court for connected to of being joined, united, or linked to, that would be enough for summary judgment on that claim term.

[00:12:16] Speaker 04:
So you don't have any problem with what you just said.

[00:12:20] Speaker 04:
That was the original construction, joined, united, or linked to, correct?

[00:12:24] Speaker 03:
That was from the Markman phase.

[00:12:26] Speaker 04:
Do the parties dispute that construction?

[00:12:29] Speaker 03:
The plaintiff appellant does, Your Honor.

[00:12:31] Speaker 03:
As we argue at the Markman phase, we believe the specification and prosecution history teach an indirect or direct interaction.

[00:12:40] Speaker 03:
That interaction is the key, not attachment or fixation.

[00:12:43] Speaker 04:
But nevertheless.

[00:12:45] Speaker 04:
So what it is, is can joined and linked to be

[00:12:49] Speaker 04:
Does that, can it be direct and indirect?

[00:12:52] Speaker 03:
Yes, your honor, but it's not just a direct or indirect physical attachment.

[00:12:56] Speaker 03:
The way the patent term is used in the specification, it's an operative interaction, not being duct taped together as we describe in the grades.

[00:13:05] Speaker 05:
But what about indirect or direct connection?

[00:13:09] Speaker 05:
Connected to can be a direct connection.

[00:13:11] Speaker 05:
It can also be an indirect connection in the sense that you have to go through some other component in order to

[00:13:19] Speaker 05:
you know, activate that downstream component.

[00:13:23] Speaker 05:
And so, therefore, it could be fairly understood to be an indirect connection.

[00:13:26] Speaker 05:
Is that enough to resolve the debate here?

[00:13:31] Speaker 03:
Yes, Your Honor.

[00:13:32] Speaker 05:
That would be enough to... Because, you know, the interaction term that you were just mentioning is a little more vague and seems to potentially be migrating away from the notion of connection.

[00:13:45] Speaker 03:
Well, the specification describes the function of the controller

[00:13:49] Speaker 03:
in the example of a check valve as operating the valve by adjusting the fluid pressure by means of acting on the pump.

[00:13:58] Speaker 03:
But to go to your honor's question, yes, if the court decided that indirect connection in a physical sense is all that the claim term required and that that was a proper construction, then that would suffice for summary judgment for the plaintiff.

[00:14:11] Speaker 00:
Well, you keep saying that.

[00:14:12] Speaker 00:
But I thought we had a discussion a few minutes ago talking about whether we're here really appropriately to grant summary judgment to the plaintiff.

[00:14:20] Speaker 00:
or to simply say there was insufficient grounds for summary judgment for the defendant?

[00:14:24] Speaker 03:
It's both, Your Honor.

[00:14:25] Speaker 00:
Well, there's a big difference, because that would mean that at least the district court in the first instance gets to decide whether there remains a factual dispute, whether we need to have a jury trial, or whether or not there are not.

[00:14:39] Speaker 03:
Your Honor is correct.

[00:14:40] Speaker 03:
There is a big difference.

[00:14:42] Speaker 03:
In this instance on this record, as set forth in the appendix,

[00:14:45] Speaker 03:
If the court, for example, were to adopt all of the plaintiffs suggested claim constructions, or on the issue of connected to even the markman phase construction of the district court on connected to, then there would be ample support in the record for summary judgment.

[00:15:01] Speaker 03:
At a minimum, though, and this is why I say it's both, at a minimum, there would have to be a remand to determine, for example, under the doctrine and equivalence, of whether there's a fact issue.

[00:15:10] Speaker 05:
Can I hear your articulation of the connected to construction?

[00:15:14] Speaker 05:
What is your preferred construction of connected to?

[00:15:17] Speaker 03:
Connected to refers to being directly or indirectly interacting to interact with in an operative sense not to be physically necessarily touching not necessarily to use your honor your honor's Concept in the sense of a boat is attached to a dock through a rope.

[00:15:35] Speaker 03:
That would be an indirect physical attack attachment

[00:15:38] Speaker 03:
What's important in this case, on this record with this patent, is how the functions, to go to Judge Schall's point about functionality, how the functions are accomplished, not just what's touching and what's not touching, but how the fluid is moved through the system to replicate the purpose of the invention.

[00:15:55] Speaker 03:
Your Honors, I see I'm out of time.

[00:15:56] Speaker 00:
We'll restore two minutes.

[00:15:57] Speaker 00:
Why don't we hear from the other side?

[00:15:58] Speaker 03:
Thank you, Your Honor.

[00:16:23] Speaker 02:
Good afternoon, Your Honors, please support.

[00:16:25] Speaker 02:
Gary Eastman and my associate Kenny Wen representing strategic operations in this matter.

[00:16:33] Speaker 02:
Strategic operations blood pump systems, not rocket science.

[00:16:37] Speaker 02:
Just for reference, strategic operations throughout this case have been referred to as stops, and I will maintain that consistency here.

[00:16:43] Speaker 02:
The accused device is an IV-type bag filled with fake blood, a pump that pumps that fake blood to fake wounds when the controller's on.

[00:16:52] Speaker 02:
And the person of ordinary skill in the art, as suggested by plaintiff, is a high school graduate with a bit of medical training, no specific familiarity with pumps, valves, or controllers.

[00:17:02] Speaker 02:
That's really key here.

[00:17:04] Speaker 00:
Can I ask you, were there counterclaims of impolidity?

[00:17:07] Speaker 02:
There were not, Your Honor.

[00:17:08] Speaker 02:
There were not.

[00:17:09] Speaker 02:
There was affirmative defenses?

[00:17:10] Speaker 02:
Yes.

[00:17:11] Speaker 02:
And that was rendered moot based upon the summary judgment finding.

[00:17:14] Speaker 05:
Which one do you want to talk about first, connected to or the valve and the pump in fluid communication?

[00:17:20] Speaker 02:
I think I would like to focus first on there are two hurdles, as my colleague said.

[00:17:27] Speaker 02:
They must convince the court that the pump and the valve, as claimed, can be construed to be the same device.

[00:17:33] Speaker 02:
And second, that they must be connected to via an indirect connection.

[00:17:37] Speaker 02:
So I'd like to take the first one, which is the pump and the valve can be claimed to embrace only a pump device that includes a valve integrator.

[00:17:47] Speaker 02:
Failure of either one of these tasks

[00:17:50] Speaker 02:
renders their appeal futile and must affirm the underlying case.

[00:17:55] Speaker 02:
But let's focus first on the integrated device.

[00:17:59] Speaker 02:
This court has clearly established a hierarchy for examining cases just like this.

[00:18:04] Speaker 02:
And while there's been presumptions of this word thrown around and presumptions of that thrown around, it's not what's at issue here.

[00:18:11] Speaker 02:
What's at issue here is a very close read of the claims.

[00:18:15] Speaker 02:
The claims at issue and claim 18 that's asserted

[00:18:20] Speaker 02:
It's got to be given its ordinary meaning.

[00:18:23] Speaker 02:
Why can't the valve be inside the pump?

[00:18:26] Speaker 02:
Because there's no valve inside the pump.

[00:18:28] Speaker 02:
It's a pump.

[00:18:29] Speaker 01:
It's a pump device.

[00:18:30] Speaker 01:
Is there a valve inside the pump?

[00:18:32] Speaker 01:
There are many components within that pump.

[00:18:34] Speaker 01:
Is one of the components a valve?

[00:18:35] Speaker 02:
Yes.

[00:18:35] Speaker 02:
I think we agree on that.

[00:18:37] Speaker 02:
Yes, it's a component inside that functions in the valve.

[00:18:40] Speaker 02:
It does not, or functions in the pump.

[00:18:42] Speaker 05:
So why can't that valve meet the claim limitation for the valve?

[00:18:45] Speaker 02:
Because the claim itself requires that they're separate.

[00:18:52] Speaker 05:
How do we know that, though?

[00:18:53] Speaker 05:
I mean, we have cases like that Powell versus Home Depot case, where there was a box.

[00:19:00] Speaker 05:
And there were two claim limitations, cutting box and collection structure.

[00:19:06] Speaker 05:
And we affirmed a jury verdict finding that that accused products box met both limitations.

[00:19:14] Speaker 05:
So under that line of reasoning, why couldn't that also potentially be applicable here, or at least at a minimum, raise a factual question for a jury or a district court to decide as a factual matter?

[00:19:31] Speaker 02:
Well, Your Honor, you dialed into that issue earlier in your questions.

[00:19:36] Speaker 02:
When you're looking for a device to do double duty, as was mentioned, you have to focus on the claim itself.

[00:19:44] Speaker 02:
And the claim itself calls out two specific devices.

[00:19:48] Speaker 02:
Just like in Powell.

[00:19:49] Speaker 02:
That's right.

[00:19:50] Speaker 02:
There were two specific devices.

[00:19:52] Speaker 02:
I agree with you.

[00:19:53] Speaker 02:
And Powell, on the other hand, included specific teachings in the specification that integrated those two devices in one.

[00:20:02] Speaker 02:
And it specifically states with particularity

[00:20:05] Speaker 02:
that it is fully envisioned in this invention that the cutting box and the dust collector can be the same thing.

[00:20:11] Speaker 00:
Well, if the claim language is broad enough to allow it, then even in the absence of a teaching in the specification, our case law is we construe it fraudulently in the absence of a disclaimer.

[00:20:23] Speaker 00:
It's not the opposite, which seems to be the theory you're suggesting.

[00:20:27] Speaker 02:
No, not at all, Your Honor.

[00:20:28] Speaker 02:
What I'm suggesting is the claim itself controls.

[00:20:32] Speaker 02:
Unless there's an exception.

[00:20:34] Speaker 02:
I'm not suggesting that we're going to construe it any one way or the other, except as the claim itself demands.

[00:20:41] Speaker 02:
And the claim here calls out two separate devices.

[00:20:44] Speaker 02:
But what's more illustrative of the connection and the various components is the way those are connected together.

[00:20:51] Speaker 02:
And I'll give you a specific example.

[00:20:53] Speaker 02:
Their expert takes apart the pump and says, well, this is a valve component in this.

[00:20:57] Speaker 02:
But that renders the pump inoperable.

[00:21:00] Speaker 02:
That's one of the features in the case decided, is that they both have to be operable.

[00:21:04] Speaker 05:
I thought there was some evidence on the other side suggesting that this particular pump could still operate without the valve inside it.

[00:21:12] Speaker 05:
It might not operate as well, but it's still operable.

[00:21:17] Speaker 05:
At least, I know you want to say that's not true, but we're not here to decide that factually.

[00:21:25] Speaker 02:
I agree with you, Your Honor.

[00:21:26] Speaker 02:
There is information in the record that shows that the function of the pump, while impaired, still manages to move fluid.

[00:21:34] Speaker 02:
OK.

[00:21:35] Speaker 05:
So aren't we also cabined in by the claim constructions for the terms pump and valve?

[00:21:43] Speaker 05:
So really, we have to look at, well, if valve is construed as a device that regulates directs or adjusts the flow of fluid,

[00:21:52] Speaker 05:
and a pump is construed as a device that moves or transfers fluid by mechanical action, then maybe that's what we need to look at and use and apply in trying to figure out whether the valve inside the pump, the device that regulates directs or just the flow of fluid, is in fluid communication with something that is a device that moves or transfers fluid by mechanical action.

[00:22:21] Speaker 02:
agree with you, Your Honor.

[00:22:22] Speaker 02:
That is precisely the process.

[00:22:23] Speaker 02:
And I present to you that the district court did exactly that.

[00:22:27] Speaker 02:
They took those basic claim construction terms.

[00:22:30] Speaker 05:
Well, I think the concern is that the district court appeared to say, just as a matter of law, you can't have the claimed valve inside the claimed pump full stop.

[00:22:44] Speaker 02:
I don't think that was the extent of his argument.

[00:22:46] Speaker 02:
His argument was fairly well reasoned and set forth

[00:22:50] Speaker 02:
in appendix at page 21, where he's talking about the interconnectivities between the pump and the controller, the valve and the controller, and the pump and the valve.

[00:23:01] Speaker 02:
And the pump and the valve requires a hydraulic or a fluid communication.

[00:23:06] Speaker 02:
The controllers.

[00:23:10] Speaker 05:
Was there something at 821 you want to point us to?

[00:23:14] Speaker 02:
The specific focus is, by the district court, is if the claim allowed,

[00:23:18] Speaker 02:
for an indirect connection between the valve.

[00:23:20] Speaker 05:
So near the top of 821, right?

[00:23:22] Speaker 02:
Yes.

[00:23:23] Speaker 02:
It would have expressly required that a controller be connected to the valve.

[00:23:27] Speaker 02:
But because the connection between the pump and valve was already claimed in fluid communication with language in element three, there was no need to claim a second connection.

[00:23:35] Speaker 02:
But they did, which necessarily defines that it's a separate device.

[00:23:46] Speaker 02:
Simply put, nothing in this claim language gives rise to an inference that the pump and the valve can be integrated.

[00:23:53] Speaker 02:
The mandatory language of the claim, where they are specifically connected, a controller connected to said pump and said at least one valve, and the at least one valve in fluid communication with pump dictates that they're separate devices.

[00:24:08] Speaker 02:
Because otherwise it would, as he said, be nonsensical.

[00:24:11] Speaker 02:
We can rely on this claim language and then look to the specification

[00:24:17] Speaker 02:
to see if it's been modified.

[00:24:19] Speaker 02:
But it wasn't.

[00:24:20] Speaker 02:
Not a single instance in the specification says that the pump and the valve can be integrated.

[00:24:26] Speaker 02:
In fact, the pump and valve are specifically different.

[00:24:31] Speaker 02:
In fact, the valves that are specifically discussed throughout the specification, some are automatic, such as a check valve.

[00:24:40] Speaker 02:
Some are manual, such as the twisty valves at the end of the fluid lines.

[00:24:44] Speaker 02:
And others are controlled by a controller such as a solenoid.

[00:24:48] Speaker 02:
A check valve, by its very nature, is not controllable by a controller.

[00:24:52] Speaker 02:
It's passive.

[00:24:53] Speaker 02:
It only allows fluid to go in one way.

[00:24:56] Speaker 02:
So the requirement that it's connected to the controller, if you adopt the internal valve approach to the separateness versus integrated, renders that inoperable.

[00:25:12] Speaker 02:
I'd like to move on to the second point.

[00:25:13] Speaker 02:
which is the construction of connected to, the joined, united, or linked to.

[00:25:18] Speaker 04:
Excuse me, I guess the district court, we were discussing this with Mr. Park, the district court construed connected to as joined, united, or linked to.

[00:25:30] Speaker 04:
I assume that, and please tell me if I'm wrong, both sides agree that there was no problem with that construction.

[00:25:38] Speaker 04:
That's right.

[00:25:39] Speaker 04:
OK.

[00:25:39] Speaker 02:
That was an agreement.

[00:25:40] Speaker 04:
And then the issue seems to be whether there was error in going beyond that.

[00:25:47] Speaker 04:
And I guess I would look to page 21 of the joint appendix where it says, the fact that element four requires a connection between the controller activation mechanism and the valve, as well as between the controller activation mechanism and the pump, establishes requirement of an independent direct connection.

[00:26:07] Speaker 04:
That seems to be where the issue is between the parties.

[00:26:11] Speaker 04:
Am I right or wrong on that?

[00:26:14] Speaker 02:
I think that is one of the issues that SCEDCO has taken issue with.

[00:26:18] Speaker 02:
But if you focus on the claim language itself, it is an indirect connection already exists between the pump and the valve, and that's through the fluid communication.

[00:26:27] Speaker 02:
So if they really intended an indirect link, then there's no need for the direct link.

[00:26:35] Speaker 02:
between the controller and the valve or the controller and the pump, because that indirect connection is already there.

[00:26:41] Speaker 02:
Does that answer your question, Your Honor?

[00:26:44] Speaker 04:
I'm not sure.

[00:26:44] Speaker 04:
I'll have to think about it.

[00:26:45] Speaker 04:
All right.

[00:26:47] Speaker 04:
I'll let you know maybe later.

[00:26:49] Speaker 02:
Thank you.

[00:26:51] Speaker 02:
The second point is the connected to language.

[00:26:55] Speaker 02:
Now, connected to, keep in mind, the person of ordinary skill in the art, they're not sophisticated.

[00:27:04] Speaker 02:
high school education, little medical training.

[00:27:07] Speaker 02:
But what's important here is the presented or suggested construction by SCEDCO of indirectly, the pump interacts directly or indirectly.

[00:27:21] Speaker 02:
So that would be the phrase, the interacts directly or indirectly, instead of connected to, which was previously construed as Join United or Link to.

[00:27:31] Speaker 02:
That is absolutely inconsistent with

[00:27:33] Speaker 02:
all other claims in this application.

[00:27:35] Speaker 02:
And we don't need to look any further than claim 19.

[00:27:38] Speaker 05:
What about the figures?

[00:27:39] Speaker 05:
There's figures that seem to show some kind of intervening component between the controller and the valve.

[00:27:49] Speaker 02:
Right.

[00:27:49] Speaker 02:
There are.

[00:27:50] Speaker 02:
And in each case where they say it is connected indirectly to, they further emphasize that in the specification via a conduit or via this.

[00:28:00] Speaker 02:
They further define that.

[00:28:02] Speaker 02:
So they don't just generalize indirectly.

[00:28:04] Speaker 05:
But more importantly, the claim language requires... You're saying that when they filed these claims, they only covered some of their embodiments and not all of their embodiments.

[00:28:15] Speaker 02:
Exactly right, Your Honor.

[00:28:16] Speaker 02:
And I'll refer you ever so briefly to the footnote nine of Skedco's reply, where it says that it recently obtained claims to a valve-less system.

[00:28:27] Speaker 02:
They didn't do that here.

[00:28:29] Speaker 02:
They claimed a valve system.

[00:28:32] Speaker 05:
Right.

[00:28:33] Speaker 05:
But, you know, there's other places in the spec that uses the phrase directly connected to, right, to at least give some indicia that the patent owner's specification understands that connected to maybe is a broader concept.

[00:28:51] Speaker 05:
And when the inventor really wants to make it clear that there's a very direct connection, he knows how to say that by using the phrase directly connected to.

[00:29:02] Speaker 02:
I think that the district court's impression and Markman decision of join united or link to adequately covers those because it doesn't always require a specific direct connection.

[00:29:15] Speaker 02:
Linked to could be an indirect link, but it has to be an operable link.

[00:29:18] Speaker 02:
And that's what's missing here.

[00:29:20] Speaker 02:
There's not a single thing the controller can do to control the valve within that pump.

[00:29:26] Speaker 02:
It's a passive device.

[00:29:28] Speaker 02:
They could control the controller all day long, and that valve is going to do what the pressure flow dictates, not what the controller does.

[00:29:35] Speaker 02:
I'm running a few minutes down, so I just want to focus on the fact that if we take the proposed claim construction from SCEDCO and we insert that into claim 19, you can see exactly how nonsensical it is.

[00:29:52] Speaker 02:
And I'll just quote a couple of them, because I think you'll get the point.

[00:29:56] Speaker 02:
Looking at claim 19, which depends from claim 18 and which is asserted in this case, says claim 19 wherein said at least one wound site.

[00:30:06] Speaker 02:
Now, I'm going to insert Skedco's proposed construction.

[00:30:09] Speaker 02:
A first wound site conduit interacts indirectly with said valve.

[00:30:14] Speaker 02:
A first wound site interacts indirectly with said first wound site conduit.

[00:30:19] Speaker 02:
Because if you say it's directly or indirectly, you have to assume that it's one or the other.

[00:30:24] Speaker 02:
You can't just randomly pick.

[00:30:25] Speaker 02:
You need to give, under section 112, clarity as to what you claim the invention is.

[00:30:30] Speaker 02:
That's not the case here.

[00:30:32] Speaker 02:
So SCEDCO is attempting to eliminate the requirement of a controllable valve by making the direct versus indirect suggestion.

[00:30:41] Speaker 02:
The district court got it right.

[00:30:43] Speaker 02:
Join United or Link 2 covers the embodiments claimed here based upon his scrutiny of claim 18 itself.

[00:30:49] Speaker 02:
It dictates those control connections.

[00:30:53] Speaker 02:
You know, there's simply no operable connection between the controller, which is an activation mechanism, and the valve inside the pump.

[00:31:07] Speaker 02:
But on a number of occasions they try to fill their... Does there have to be?

[00:31:10] Speaker 02:
Pardon?

[00:31:11] Speaker 02:
Does there have to be?

[00:31:13] Speaker 05:
It just says connected to.

[00:31:15] Speaker 02:
I suggest it does.

[00:31:16] Speaker 02:
because it has to be an operable connection.

[00:31:18] Speaker 02:
It's an activation mechanism.

[00:31:19] Speaker 02:
What purpose is a connection if it's not an activation?

[00:31:22] Speaker 02:
It's this method of activating.

[00:31:23] Speaker 02:
I did want to just point out one quick second, the twisty valves.

[00:31:30] Speaker 02:
Skedco attempts a number of times to claw back their missing valve by suggesting that the manual twisty valves at the end are in some way connected back to the controller, and that satisfies the claim on it.

[00:31:45] Speaker 02:
The controller can do whatever it wants, but unless somebody manually goes and adjusts that valve to let fluid go through that line, there's nothing going through that line.

[00:31:55] Speaker 02:
Thank you.

[00:31:56] Speaker 00:
Thank you.

[00:32:04] Speaker 00:
Mr. Parker, you have two minutes.

[00:32:08] Speaker 03:
Thank you, Your Honor.

[00:32:12] Speaker 03:
On the concept of this double duty,

[00:32:14] Speaker 03:
regarding whether two co-house structures, the valve and the pump, can satisfy two claim elements.

[00:32:22] Speaker 03:
The issue of the Home Depot case has come up.

[00:32:24] Speaker 03:
And counsel has pointed out that in the Home Depot, yes, in the specification, there is some discussion about that integral structure.

[00:32:33] Speaker 03:
The PAPST and Reg snort cases that I mentioned earlier have no such teaching.

[00:32:37] Speaker 03:
And the law of the circuit is that even if there's only a single embodiment in the specification that doesn't disclose

[00:32:44] Speaker 03:
urged claim construction, it's not limiting, again, unless there's an express word of manifest disclaimer or disavowed.

[00:32:53] Speaker 03:
On the summary judgment order, page 21, that counsel mentioned regarding the judge's analysis, there's a notice function to patent claims.

[00:33:03] Speaker 03:
In this instance, the valve and the pump could be separate.

[00:33:07] Speaker 03:
They could be co-housed.

[00:33:08] Speaker 03:
They could be integral.

[00:33:09] Speaker 03:
One could be inside the other.

[00:33:10] Speaker 03:
They could be in separate parts of the fluid line.

[00:33:14] Speaker 03:
So the point here is that the fact that the claim construction we urge is broad enough to capture all of those alternative embodiments.

[00:33:24] Speaker 03:
The district courts seem to focus on one specific embodiment and say, if this weren't intended to be separate, there would be no need to have a connection between the pump, the controller and the pump, and the controller and the valve.

[00:33:36] Speaker 03:
But again, in light of the notice function, the broader interpretation provides that notice by saying,

[00:33:41] Speaker 03:
There are many different options.

[00:33:43] Speaker 03:
There are many different configurations.

[00:33:46] Speaker 03:
On the issue of whether both sides agree on the district court's construction of connected to from the Markman phase, we do not agree that that's the proper claim construction.

[00:33:55] Speaker 03:
The point in our brief was that even under that claim construction, we could still prevail.

[00:34:01] Speaker 03:
But we believe that the proper construction is as we cited in our briefing.

[00:34:08] Speaker 00:
Thank you, Your Honors.