[00:00:00] Speaker 02:
Your company versus I go.

[00:00:40] Speaker 02:
I guess we're ready, Mr. McNulty.

[00:01:02] Speaker 03:
Thank you, Your Honor.

[00:01:09] Speaker 03:
I'm Tom Melty, representing Highland Eye Ego in this case.

[00:01:14] Speaker 03:
And I think we're dealing with something similar to the first case that was before you today.

[00:01:18] Speaker 03:
Eyes versus root canals, right?

[00:01:21] Speaker 03:
Perhaps not the technology.

[00:01:23] Speaker 03:
But in our case, we have a series of patents, claims that were determined by the district court not to be anticipated by the two prior references that were before her, but that were determined to be obvious

[00:01:38] Speaker 03:
And they were determined to be obvious despite the fact that two limitations from the claims were not met by the priority.

[00:01:47] Speaker 03:
And the problem we have is there's really no reasoning or record evidence why anybody wouldn't be motivated to modify either of the two references.

[00:01:58] Speaker 03:
And like I said, the two limitations that aren't met, they're just not identified in the record evidence anywhere.

[00:02:09] Speaker 02:
And those are?

[00:02:11] Speaker 03:
The two limitations are that the first threaded portion of the screw is shorter than the second non-threaded portion, and that the screw can be aligned by pulling on the non-threaded portion from below once the screw's been inserted into the hinge barrel to bring the threads into engagement.

[00:02:36] Speaker 03:
So the way these work,

[00:02:40] Speaker 03:
And what you've seen from the figures, there's a threaded first portion, there's a non-threaded second portion.

[00:02:44] Speaker 03:
When you put this into the barrel of a hinge, this non-threaded second portion, for that second limitation to be met, needs to be long enough to extend out the bottom of the barrel of the hinge before the threads have been engaged, before the screw has been screwed down, basically.

[00:02:58] Speaker 03:
That's the second limitation that's not met.

[00:03:00] Speaker 02:
And that's to increase leverage.

[00:03:02] Speaker 03:
No, at that point, actually, when the screw is just being screwed in, the breakaway is still within the hinge barrel.

[00:03:09] Speaker 02:
So you can screw it in with your fingers.

[00:03:10] Speaker 02:
It's supposed to be in the middle of one of those tiny little screwdrivers.

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

[00:03:13] Speaker 03:
And the reason this is important is many eyeglasses have spring hinges.

[00:03:17] Speaker 03:
These do.

[00:03:18] Speaker 03:
They spring out.

[00:03:19] Speaker 03:
And when you're putting these together, the spring hinges tend to push themselves out of alignment.

[00:03:25] Speaker 03:
It's kind of one of those side effects of putting the spring in.

[00:03:30] Speaker 03:
So if you can get the screw in,

[00:03:32] Speaker 03:
reach down and get the bottom, you don't have to reach for a second tool.

[00:03:35] Speaker 03:
You can maintain the spring hinge alignment while you pull this down and begin threading it.

[00:03:39] Speaker 03:
And then you don't have to worry about the screw popping out and struggling to find it or losing it and having to get another one.

[00:03:46] Speaker 01:
So you're saying that limitation relating to removing by hand is not found in the prior art or anywhere in the record.

[00:03:54] Speaker 01:
Does that, I understand, be your position?

[00:03:56] Speaker 03:
No.

[00:03:58] Speaker 03:
is one of the features of the claimed invention.

[00:04:01] Speaker 03:
The feature that I'm discussing here is a different feature.

[00:04:04] Speaker 03:
Like I said, that second portion, the lower portion of the screw would be longer than the first portion so that you can grab the lower portion once the screw has been inserted into the barrel and twist it.

[00:04:16] Speaker 01:
Sure.

[00:04:17] Speaker 01:
So manipulating the non-credited second portion directly by hand by a user without the use of a tool, is that the limitation you're talking about?

[00:04:24] Speaker 03:
Well, the limitation varies from claim to claim.

[00:04:28] Speaker 03:
But yeah, basically that, the district court found that, and I think the subtle differences in language for the purposes of this analysis really don't change much.

[00:04:39] Speaker 01:
So why doesn't the central style screw teach that limitation?

[00:04:44] Speaker 03:
The central style screw, well first of all, the two screws, the central screw and the central style screw, the district court found, and Hilco agrees, Hilco being the whole center company,

[00:04:56] Speaker 03:
that they're essentially identical.

[00:04:59] Speaker 03:
Excuse me.

[00:05:01] Speaker 03:
And the central style screw, the second non-threaded portion is shorter than the first threaded portion.

[00:05:08] Speaker 01:
So first of all, just plain doesn't mean... But I was going back to that limitation that we were talking about.

[00:05:13] Speaker 01:
The one where the screw is aligned by manipulating the non-threaded second portion directly by hand by a user without the use of the tool.

[00:05:21] Speaker 01:
And by the way, I'm repeating language from claim 26.

[00:05:24] Speaker 01:
I'm reading.

[00:05:25] Speaker 01:
And I was asking specifically why that limitation is not met by the central style screw.

[00:05:34] Speaker 01:
Okay.

[00:05:34] Speaker 03:
The reason that wouldn't be met, first of all, the central style screw does not, the central style catalog, excuse me, we don't actually have a central style screw in evidence.

[00:05:42] Speaker 03:
It's just a catalog.

[00:05:44] Speaker 03:
The catalog doesn't teach or suggest that in any way.

[00:05:47] Speaker 03:
Mark, isn't it in the figure?

[00:05:49] Speaker 03:
In the figure, the screw has already been completely inserted and screwed down.

[00:05:53] Speaker 03:
when somebody is, and assuming that those are fingers, when that portion of the screw is being grasped, there's no indication that you can insert and align the screw before it has been screwed all the way down by grasping that lower portion.

[00:06:07] Speaker 03:
And the reason you can't is because it would be entirely within the barrel.

[00:06:10] Speaker 03:
It would be extending below the barrel at that point.

[00:06:15] Speaker 03:
The first threaded portion of the screw is going to effectively be the same length as the hinge barrel.

[00:06:23] Speaker 03:
So when you first put it in and the threads touch, you've got the full length of the hinge barrel above it.

[00:06:28] Speaker 03:
If the non-threaded portion is shorter than that, it's necessarily going to be entirely contained within the hinge barrel, and you can't grab that non-threaded second portion at that point.

[00:06:43] Speaker 03:
So I guess there's a couple of issues that we take with the obviousness finding.

[00:06:49] Speaker 03:
The first is, like I said, two prior art references are conceded to be identical and were found to be identical.

[00:06:56] Speaker 03:
There's nothing in these two prior art references that suggests a first threaded portion being shorter than a second non-threaded portion.

[00:07:08] Speaker 03:
And there's no reason why somebody with skill in the art would have taken either of these two screws and combined them to get that.

[00:07:16] Speaker 03:
Because first of all, they're identical screws.

[00:07:18] Speaker 03:
Combine them, you get.

[00:07:19] Speaker 03:
the same identical screw.

[00:07:21] Speaker 03:
Second of all, there's no reason given why somebody would be motivated to modify it in any way, shape, or form, much less to meet these claim limitations.

[00:07:32] Speaker 02:
Why not simply to increase the amount of leverage that you could obtain by increasing the length of the breakaway section?

[00:07:40] Speaker 03:
Well, I think there's sort of two points to that.

[00:07:42] Speaker 03:
The first is there's no indication on the record that

[00:07:46] Speaker 03:
breakability feature was recognized in the art in any way shape or form as being of importance.

[00:07:51] Speaker 02:
The narrow neck of the screws in the fire art certainly suggests that that's, I mean why would you otherwise have that narrow neck other than to break away?

[00:08:02] Speaker 03:
It could simply provide a sort of tactile feel for when you take a pair of nibbers to nip the end off.

[00:08:08] Speaker 03:
Nibbers for doing that are common.

[00:08:10] Speaker 02:
The thumb reaching there suggests that

[00:08:18] Speaker 02:
possibility of a breaking away at that point.

[00:08:22] Speaker 03:
So you're suggesting that you're referring, I should say, to the center-style catalog?

[00:08:25] Speaker 03:
Yes.

[00:08:26] Speaker 03:
Okay, because there is no such reference in the Hillco catalog or in the brush.

[00:08:33] Speaker 03:
Again, to the extent that breakability is recognized, there's no recognition that there's any problem with the breakability or a need to improve the breakability.

[00:08:44] Speaker 03:
If the screw's breakable,

[00:08:45] Speaker 03:
There's really no reason why somebody would be modified to make a longer second portion, increase the cost, increase the amount of material to go into it.

[00:08:53] Speaker 02:
Well, OK, let me ask the question of you then.

[00:08:58] Speaker 02:
Well, what advantage does your patent have to making the second portion longer vis-a-vis breakaway capacity?

[00:09:09] Speaker 03:
In terms of breakaway, it certainly probably does give more leverage.

[00:09:12] Speaker 02:
So when do I have the incentive for someone looking at the priority if they wanted more leverage?

[00:09:17] Speaker 03:
But at that point, you're using my client's patent as the guide map to get to, obviously.

[00:09:23] Speaker 02:
You're using hindsight.

[00:09:25] Speaker 02:
I actually didn't need your client's patent in order to see that if you lengthen the length of the second section, you get more torque out of it.

[00:09:35] Speaker 02:
That's pretty basic stuff.

[00:09:38] Speaker 03:
I understand what you're saying, but I guess the response I would have is twofold.

[00:09:42] Speaker 03:
There is no record evidence that that had been a problem identified, that it was not sufficiently breakable in the record evidence.

[00:09:50] Speaker 03:
Second of all, to the extent that that was a problem that needed to be identified, Mr. Sadler, Sadler Screw was the company that initially sold Sadler Screw.

[00:10:01] Speaker 03:
They had been purchased by Hilco.

[00:10:03] Speaker 03:
So between the two of them, Sadler and Hilco sold that screw for about 10 years without making any modification whatsoever to it.

[00:10:10] Speaker 03:
And it didn't occur to them to make modifications to it until after they had seen my client's snappage screw that embodies the claims of the patent.

[00:10:20] Speaker 03:
And within months, they came out with the accused product.

[00:10:25] Speaker 03:
So this is a case where, and I know I'm now getting into secondary consideration factors, but this is a case where I think the secondary considerations tie hand in hand with the lack of motivation to modify the reference.

[00:10:37] Speaker 03:
The screws that existed for 10 years without anyone doing anything, they existed in, at least in the Sadler world and in the Sunderstile world without either of those companies doing anything.

[00:10:49] Speaker 03:
My client was new to the optical industry, came up with this idea, and perhaps that's why.

[00:10:55] Speaker 03:
Perhaps it was a fresh set of eyes or a fresh look to recognize a problem that the industry itself hadn't identified or recognized.

[00:11:05] Speaker 03:
Shortly after coming up with her idea, she obtained a patent application on it.

[00:11:11] Speaker 03:
She was able to successfully license it for a considerable amount of money, upfront money and ongoing royalty, from OptiSource, a company that was also selling the Sadler screw and had been doing so for years.

[00:11:23] Speaker 03:
The fact that they looked at her screw and said, wow, this is great.

[00:11:28] Speaker 03:
And we're willing to pay for a license.

[00:11:30] Speaker 03:
And the license is on the Snappage screw and on the 403 patent.

[00:11:35] Speaker 03:
is substantial evidence that this is a non-obvious set of claims.

[00:11:44] Speaker 03:
On top of that, my client won numerous awards relating to inventiveness from people in the optical industry.

[00:11:52] Speaker 03:
Those are identified in our brief.

[00:11:55] Speaker 03:
And like I said, HILCO themselves, their copying of the script, like I said, they had the Sadler screw for years.

[00:12:04] Speaker 03:
Within months of seeing this Tedeschi screw, they came out with a knockoff, effectively.

[00:12:10] Speaker 03:
And that is, in my opinion, particularly since the prior screw was their screw.

[00:12:15] Speaker 03:
I think that's particularly probative here, even more so than a typical copying case where the closest prior is somebody else's.

[00:12:25] Speaker 03:
Excuse me.

[00:12:32] Speaker 03:
Other problem we have with the decision on obviousness, the court referred to the breakability of the screw as being the crux of the invention.

[00:12:41] Speaker 03:
And that's not actually a good law.

[00:12:43] Speaker 03:
That hasn't been a good law for, I don't know, 50 years.

[00:12:47] Speaker 03:
The current precedent requires that the court look at the claimed invention as a whole.

[00:12:53] Speaker 03:
And I think the court's opinion makes it clear that they discounted the steel limitations that were not found in the prior art, because they determined that the

[00:13:01] Speaker 03:
quote unquote, crux of the invention was something else and that they didn't need to get to that.

[00:13:06] Speaker 03:
So effectively, they resorted to common sense both to provide the two missing limitations and to provide the motivation to modify to get those two limitations into the claim from the prior art.

[00:13:23] Speaker 03:
And as we stated in our brief, I believe that just stretches the case too far.

[00:13:29] Speaker 03:
And in particular, in a case like this, where there are substantial secondary factors that favor non-obviousness.

[00:13:37] Speaker 03:
We really failed to push the case too far.

[00:13:40] Speaker 03:
Excuse me.

[00:13:48] Speaker 03:
The motivation that was provided by Hillco's expert to modify the references, excuse me,

[00:13:57] Speaker 03:
was also inappropriate.

[00:13:59] Speaker 03:
It was the test for whether something is analogous or whether they addressed similar problems.

[00:14:04] Speaker 03:
And common subject matter approaches is the actual language that he used.

[00:14:07] Speaker 03:
They share common subject matter approaches.

[00:14:09] Speaker 03:
That's the analysis to determine whether references are analogous and thus can be considered to be relevant prior art.

[00:14:17] Speaker 03:
But it is not the test for whether something is obvious.

[00:14:20] Speaker 02:
I go well into your rebuttal.

[00:14:22] Speaker 02:
So do you want to shift gears and hear from the other side now?

[00:14:26] Speaker 02:
OK.

[00:14:26] Speaker 02:
Thank you.

[00:14:33] Speaker 04:
This is the court, the court is half of the Helsinger Company.

[00:14:38] Speaker 04:
I go as an appeal the findings of anticipation, and that was the claims that have that limitation breakable by hand.

[00:14:47] Speaker 04:
And I'll get back to that in a moment when we talk about secondary considerations.

[00:14:51] Speaker 04:
But as the remaining claims on our motion for summary judgment, the court found that there were two disputed facts, which are the limitations that we discussed earlier on, as to whether there's clear and convincing evidence that

[00:15:02] Speaker 04:
The comparative length of the top portion is equal to or greater than the bottom portion, and whether a user can pull through or manipulate it by hand from underneath.

[00:15:15] Speaker 04:
So what the court did in arriving at its decision is it made a series of findings of fact, which is reviewed for clear error.

[00:15:25] Speaker 04:
One such finding of fact is that prioritus gustus can be inserted through an eyeglass hinge by hand.

[00:15:31] Speaker 04:
Empire Arts screws include a threaded portion and a non-threaded portion that are separated by a breakaway.

[00:15:41] Speaker 02:
And then with respect to the center style catalog, the district court... Let me interrupt for a second just to make sure we're all on the same page here and I actually had to check my brief.

[00:15:53] Speaker 02:
You said, findings of fact, clear error.

[00:15:56] Speaker 02:
This was a summary judgment proceeding, wasn't it?

[00:15:58] Speaker 02:
It was.

[00:15:59] Speaker 02:
Courts don't make findings of facts subject to clear error on summary judgment.

[00:16:03] Speaker 02:
The standard is, was there enough evidence of a disputed issue of material fact which is not reviewed for clear error?

[00:16:16] Speaker 04:
That's the standard, right?

[00:16:18] Speaker 04:
Well, in reviewing and obviousness ruling, that's a de novo consideration, but underlying findings.

[00:16:25] Speaker 02:
There aren't findings that are made on summary judgment, right?

[00:16:30] Speaker 02:
This is the way summary judgment works is you decide whether there are factual issues that need to be tried.

[00:16:39] Speaker 02:
And if you conclude that there aren't, that there's simply no disputed issue of material fact, then you grant summary judgment.

[00:16:47] Speaker 02:
And that's what the judge did in this case, not to make findings of facts subject to clear error.

[00:16:53] Speaker 02:
Are we on the same page here?

[00:16:56] Speaker 04:
We are, Your Honor.

[00:16:56] Speaker 04:
So fire art teaches.

[00:17:00] Speaker 04:
well, prior teachers and whether a skilled artisan would have been motivated to abide are questions of fact.

[00:17:05] Speaker 04:
And so I'm looking at the evidence below.

[00:17:07] Speaker 04:
The court determined that the central style catalog, looking at the central style catalog, which was a disputed fact as to what that shows, to your honor's point.

[00:17:16] Speaker 04:
And the court determined that it shows that it instructed the users to snap off, not cut off or not clip off, the non-fitted portion of the central style screw.

[00:17:28] Speaker 04:
It then determined that

[00:17:30] Speaker 04:
considered the testimony of Thomas Sadler and Thomas Woods, the expert, that the second smoother portion of the screw could be broken off by hand.

[00:17:39] Speaker 04:
And then the district court rejected Igo's contention that the drawing in the central south screw depicts pliers and not a hand, which is an argument that kind of bled into Mr. Penolty's presentation here today, but is not part of an issue on appeal.

[00:17:57] Speaker 01:
And then from there, the court said that... So what the court said there was there's no genuine issue of material fact on that, because I can see that that's a finger and a thumb, and no reasonable juror could conclude otherwise?

[00:18:10] Speaker 04:
That's correct, Your Honor.

[00:18:11] Speaker 04:
And the position below, argued by Iago, was that that does not depict a thumb and a forefinger.

[00:18:19] Speaker 04:
That it depicts, actually, a set of pliers.

[00:18:21] Speaker 04:
So therefore, in the crux of the invention, the breakable by hand should survive.

[00:18:26] Speaker 04:
summary judgment on 102 and 103.

[00:18:32] Speaker 04:
So following those determinations, the district judge said, at best, the additional limitations of a longer non-threaded portion and a screw that can be aligned by pulling on the non-threaded portion from the bottom makes slightly easier what is depicted in the central style catalog.

[00:18:53] Speaker 04:
And that's how she got to

[00:18:55] Speaker 04:
a ruling applying KSR that without any difference in breakability without tools, there's nothing of patentable consequence here.

[00:19:06] Speaker 04:
Nothing.

[00:19:09] Speaker 04:
The district court ruled that only potential difference is the first threaded portion no longer than a second, and a screw could be aligned from below.

[00:19:18] Speaker 04:
And that is nothing of patentable consequence under the decision alone.

[00:19:27] Speaker 04:
In the reply brief, there was an argument by IDEGO that the court found that the two limitations, as they call it, that are subject to the obviousness analysis was determined by the district judge to be unrecognized in the prior art.

[00:19:45] Speaker 04:
That's kind of where they put that in most of their arguments.

[00:19:48] Speaker 04:
But the district judge didn't say that at all.

[00:19:51] Speaker 04:
The district judge said that it was at worst

[00:19:56] Speaker 04:
At worst, what this patentee did was, with respect to those additional limitations, they only evidence that the patentees recognized that a screw's breakability could be the focus of marketing.

[00:20:09] Speaker 04:
In other words, the patentee recognized the invention concept in the prior art references that were previously unrecognized.

[00:20:20] Speaker 04:
So the patentee saw something of marketing value in the prior art references.

[00:20:25] Speaker 04:
They went off with that.

[00:20:29] Speaker 04:
And the court determined at appendix 2728 that it capitalized on the end of the composite.

[00:20:35] Speaker 02:
How do we know from the prior art that the prior art references allow a user to pull the screw into the point at which it is aligned and engages the internal screw

[00:20:55] Speaker 02:
operation.

[00:20:59] Speaker 02:
I forget what you call screw ridges.

[00:21:02] Speaker 04:
Right.

[00:21:03] Speaker 04:
So we know that just by applying our common sense here that the screw has to be inserted into the hinge and then you have to manipulate it to the point about that claim.

[00:21:12] Speaker 04:
And so that's exactly what the central style screw shows.

[00:21:16] Speaker 04:
It shows a dominant index finger from underneath the hinge manipulating that screw.

[00:21:23] Speaker 02:
Yes, but the key element, as your opposing counsel argued, was to be able to pull it to the point at which it engages with the screw threads.

[00:21:36] Speaker 04:
Threads is the word I was looking for.

[00:21:37] Speaker 04:
Right.

[00:21:38] Speaker 02:
And so that's why I didn't go out on anticipation rounds, because there was no... But what's the evidence that it does that, that the prior art is

[00:21:49] Speaker 02:
either does that or suggests that it can be done.

[00:21:53] Speaker 04:
Because it suggests that for the reasons we discussed earlier.

[00:21:55] Speaker 04:
Because if you can break it off by hand from underneath, then you can manipulate it.

[00:22:00] Speaker 04:
If you can manipulate it, you can turn it.

[00:22:02] Speaker 04:
And so a person of skill in the art, looking at the central style screw, considering the expert report of Thomas Woods, which is a whole body, can see that what this claimed invention does with respect to the remaining claims

[00:22:19] Speaker 04:
is just make slightly easier, at best, or slightly more efficient, at best, what's shown in the central solid capital.

[00:22:33] Speaker 04:
And just very briefly, secondary considerations like that.

[00:22:39] Speaker 04:
The suggestion of copying by Hilco is not supported in the record.

[00:22:44] Speaker 02:
Let me ask you just one more question on that line.

[00:22:48] Speaker 02:
Argument that the prior art establishes the breaking function of the lower edge and the use of the lower extension for leverage is based entirely, I guess, on the drawings of showing the thumb and the finger and the thinness of the section in between the two, or is there more?

[00:23:12] Speaker 04:
There's a lot more.

[00:23:13] Speaker 02:
What?

[00:23:14] Speaker 04:
So I'll give you two additional references.

[00:23:17] Speaker 04:
One is Thomas Sadler himself.

[00:23:18] Speaker 04:
the guy who made the saddle screw.

[00:23:20] Speaker 04:
And he testified that for years.

[00:23:23] Speaker 04:
He would, at trade shows, he would strip that screw and bring it off on a different day.

[00:23:29] Speaker 04:
Also the expert, Thomas Woods, which is uncontroverted in the record below, who testified that he not only saw Tom Sadler at trade shows do that, but he did it himself.

[00:23:40] Speaker 04:
He was a professor of opticianry.

[00:23:42] Speaker 04:
And those are the claims.

[00:23:44] Speaker 04:
That limitation, Your Honor,

[00:23:46] Speaker 04:
Those are the limitations that the district court determined were entitled to summary judgment based on 102.

[00:23:54] Speaker 04:
And those determinations have not been appealed to this court.

[00:23:57] Speaker 02:
And was there any evidence from either of those two as to the use of the bottom section to engage the threads?

[00:24:09] Speaker 04:
I believe Mr. Sallitt talked about using the bottom section to manipulate.

[00:24:13] Speaker 02:
To manipulate.

[00:24:15] Speaker 02:
with specificity to manipulate so as to essentially screw in the screw from the bottom.

[00:24:21] Speaker 02:
Right.

[00:24:21] Speaker 02:
So if you manipulate.

[00:24:22] Speaker 02:
Did anyone say that, or words to that effect?

[00:24:24] Speaker 04:
Words to that effect or manipulate.

[00:24:27] Speaker 04:
And by the way, there was not a rebuttal expert that they put up.

[00:24:31] Speaker 04:
And there was not any deposition taken of Mr. Williams.

[00:24:38] Speaker 04:
So very, very briefly on secondary consideration, in 2007,

[00:24:44] Speaker 04:
this patentee came to the Holstinger Company, which is a long-established company in the industry.

[00:24:50] Speaker 04:
And she had this thought of jewelry banging from the hinges of hinges.

[00:24:56] Speaker 04:
And she reached out to Holstinger, came to his office, and said, look, I'm interested in something like this.

[00:25:03] Speaker 04:
And Holstinger responded by saying, yeah, well, I'm really interested in pursuing that.

[00:25:07] Speaker 04:
But here are some screws.

[00:25:08] Speaker 04:
They gave him some salad-type screws.

[00:25:10] Speaker 04:
And at that point in time, the depositions testified that she had zero experience in the optical industry.

[00:25:15] Speaker 04:
And 40 days later, she files this patent.

[00:25:19] Speaker 04:
With the Hillsboro screws given to her, she files these patents and claims that this is inventive.

[00:25:26] Speaker 04:
That's really what these patents are about.

[00:25:28] Speaker 04:
Sadler never patented these inventions.

[00:25:32] Speaker 04:
He never thought that the relative size and shape

[00:25:35] Speaker 02:
Was the extension of the length of the bottom section done in response to the competition?

[00:25:47] Speaker 02:
Or was it just a coincidence?

[00:25:50] Speaker 02:
Or is there any evidence of either?

[00:25:52] Speaker 04:
Yeah, there is.

[00:25:53] Speaker 04:
We have it in our responsive brief, Your Honor.

[00:25:57] Speaker 04:
In the 2008-2009 time frame, the marketplace for eyewear has changed from a consumer preference perspective.

[00:26:06] Speaker 04:
And consumers changed from wire frame glasses to plastic.

[00:26:11] Speaker 04:
With the introduction of the plastic, there were wider frames and temples that required a longer lead.

[00:26:17] Speaker 02:
So you're saying this was in response to the change in the style of glasses.

[00:26:22] Speaker 02:
Yes.

[00:26:22] Speaker 04:
And if anything, the copying goes all the way.

[00:26:25] Speaker 04:
But there's not substantial evidence of longfall.

[00:26:27] Speaker 04:
The marketing awards, there's no nexus in the record to the remaining claims in this case.

[00:26:35] Speaker 04:
The OptiSource license was an argument below.

[00:26:38] Speaker 04:
There's no, on this issue, it was an issue that I went forward on standing, but it wasn't on this issue.

[00:26:46] Speaker 04:
And Longfellow needed was an argument below either.

[00:26:48] Speaker 04:
So the district court properly determined that based on the strength of the opposite case, the weakness of the secondary consideration case, that the remaining claims of the 403 patent

[00:27:03] Speaker 04:
should be invalidated under Section 103, unless you have any further questions.

[00:27:10] Speaker 04:
Thank you.

[00:27:28] Speaker 03:
I guess I will try to take this quickly.

[00:27:31] Speaker 03:
I did this so much of my time before.

[00:27:33] Speaker 03:
Mr. Scott discussed extensively the snap-off or breakability limitation of the screws.

[00:27:40] Speaker 03:
That's not the limitation that we're asserting is not met in the prior art, and it doesn't provide that limitation.

[00:27:47] Speaker 03:
Like I say, there's no indication that anyone had identified any problem with needing leverage to break off the bottom portion of the screw.

[00:27:57] Speaker 03:
The reason we know these two limitations were found not to exist in the prior art is because Hillco sought summary judgment of anticipation on the basis of these two references as to the claims of issue here.

[00:28:08] Speaker 03:
And this report denied their motion because these two limitations are not shown to have been in the prior art.

[00:28:15] Speaker 03:
Excuse me.

[00:28:16] Speaker 03:
I would ask that you look through the record because I believe Mr. Scott was incorrect in that Mr. Sadler testified that he could hold one of these screws by hand and insert it into the hinge, but never testified that he could then reach from below, grab the non-threaded second portion and engage the threads that way.

[00:28:32] Speaker 03:
That part of this claim limitation is absent from his testimony.

[00:28:36] Speaker 01:
He also cited the expert report, which he says was unrebudded.

[00:28:41] Speaker 01:
Do you have a response to that?

[00:28:43] Speaker 03:
We did not put our own expert forward, no, but the expert, likewise, testified, similar to Sadler, that he could put the screw in, but not that he could reach from the bottom and get, you know, grabbed it unthreaded second-hand.

[00:28:54] Speaker 03:
And manipulate it without a tool.

[00:28:56] Speaker 03:
Excuse me.

[00:28:58] Speaker 03:
There's been no evidence in the record whatsoever that there's any recognition of the importance or added value that being able to grasp it from the bottom and manipulate it provides.

[00:29:07] Speaker 03:
There's zero evidence on the record of that.

[00:29:12] Speaker 03:
I would note also that Mr. Sadler didn't market his screw as being manipulable in that fashion.

[00:29:20] Speaker 03:
He didn't market the screw for that matter as having a portion that could be broken off by hand.

[00:29:24] Speaker 03:
While it may have been something he did himself, this is not something that he brought to the industry and said, hey, I've got this great concept that would lead people to say, well, geez, how can we make it more breakable?

[00:29:33] Speaker 03:
Like I said, the breakability part of this itself was not something recognized as being of importance in the field.

[00:29:40] Speaker 03:
Hillcote did not market their screw that way until they came out with the accused product.

[00:29:47] Speaker 03:
And I guess finally, with respect to the recitation that Hillcote gave my client, saddler-type screws, or saddler-like screws, I forget the exact language, the testimony is that they gave her some screws, but not that they ever gave her a saddler screw or a center-style screw.

[00:30:07] Speaker 03:
We don't know what screws are given.

[00:30:09] Speaker 03:
There's no description of the screws that were given.

[00:30:10] Speaker 03:
There are hundreds of thousands of different types of eyeglass screws.

[00:30:15] Speaker 03:
It could have been any of them.

[00:30:16] Speaker 03:
So I think that's just a red herring and is totally irrelevant.

[00:30:20] Speaker 03:
The one thing I would like to address on the infringement side of things, we contend that it was wrong for the court to grant summary judgment of infringement solely on the basis of finding the claims invalid.

[00:30:30] Speaker 03:
The case law that Hilco cited in the brief actually supports our point.

[00:30:34] Speaker 03:
In all of those cases, district courts dismissed infringement claims upon finding of invalidity, but they did not affirmatively find summary judgment.

[00:30:44] Speaker 02:
I don't understand how that matters.

[00:30:46] Speaker 02:
If you win this case, it goes back, obviously, the infringement claim comes back into life.

[00:30:53] Speaker 02:
If you lose this case, what does it matter whether there was infringement or not?

[00:30:58] Speaker 02:
I would agree if we lose this case, then it's booed.

[00:31:01] Speaker 02:
And if you win this case, it's going to go back to the district court, and she's going to have to deal with the infringement issue.

[00:31:10] Speaker 03:
Part of this is just to ensure that the infringement issue is not a forgotten issue, and that actually gets addressed by this court.

[00:31:17] Speaker 03:
Thank you.

[00:31:17] Speaker 03:
Thank you.

[00:31:18] Speaker 03:
We thank both sides of the cases.