[00:00:00] Speaker 02: Peace. [00:00:01] Speaker ?: Black words. [00:00:02] Speaker 02: Tech. [00:00:03] Speaker 02: L.L.C. [00:01:17] Speaker 02: Mr. Freeman. [00:01:21] Speaker 00: Good morning. [00:01:23] Speaker 00: May it please the court? [00:01:24] Speaker 00: My name is Christopher Freeman. [00:01:25] Speaker 00: I represent the plaintiff appellant here, Blackbird Technologies. [00:01:29] Speaker 00: There are two related issues on this appeal. [00:01:32] Speaker 00: The first is a claim construction issue of whether the patentee acted as their own next psychographer and implicitly redefined the term, the claim term laminated [00:01:41] Speaker 04: Isn't this largely a problem of your own making? [00:01:43] Speaker 04: You asked for an overly broad construction and the district court rejected it when you said so or otherwise united. [00:01:52] Speaker 04: And now you're pointing to a different phrase that uses a different word as lexicography. [00:01:58] Speaker 04: the phrase in the patent is sewn or otherwise laminated. [00:02:02] Speaker 04: So your claim construction tried to sweep in any type of uniting, rather than just the term of art laminating. [00:02:10] Speaker 04: So I understand completely why the district court refused your claim construction. [00:02:18] Speaker 00: Your Honor, the focus on, in this case, since at least the Markman hearing and probably before. [00:02:23] Speaker 04: Sure, I get that. [00:02:23] Speaker 04: But that's the problem. [00:02:25] Speaker 04: You didn't give him a reasonable claim construction that was based on lexicography. [00:02:30] Speaker 04: You came up with an entirely new word that I didn't see you talk about anymore, and he rejected it. [00:02:36] Speaker 04: And then he went to your friend on the other side's construction. [00:02:40] Speaker 00: That's possible, Your Honor, but the alternative construction was offered at the heart of the proceeding. [00:02:45] Speaker 00: And it's discussed in the briefing that Appellee's construction with the addition of the word zone would also be acceptable. [00:02:52] Speaker 00: And it seems that the district court did consider that as well. [00:02:55] Speaker 00: and reject the lexicography I've written with respect to just the sewn construction. [00:03:03] Speaker 00: The second issue that we'll address later is that even if the passage and specification were saying that the sports bra is sewn or otherwise laminated together is not enough to redefine the term laminated, the question is then whether that same phrase discloses two distinct embodiments [00:03:21] Speaker 00: such that claiming the later embodiment dedicates the former embodiment to the public. [00:03:27] Speaker 01: You say on page 23 of the Blue Bree, the fact that the inventor chose to explain laminated, that's my insertion, in the detailed description but not repeated in sections providing background to and summaries of the invention does not undercut the significance of the passage. [00:03:47] Speaker 01: Indeed, it makes it more significant. [00:03:50] Speaker 01: I've been looking for authority to support that. [00:03:53] Speaker 01: What authority do you have? [00:03:56] Speaker 00: I think I understand the question. [00:03:59] Speaker 01: The question is, I just quoted from your brief, and give me some authority to support your proposition. [00:04:05] Speaker 00: Right. [00:04:05] Speaker 00: There's numerous cases from this court saying that disclosures that are in the detailed description, and particularly those that follow the invention is statement, are particularly significant. [00:04:19] Speaker 00: I have that case in front of me, but I think there are numerous cases from this court to the point of whether it's... But not repeating it makes it more significant? [00:04:33] Speaker 00: I think the point is that the only statement in the patent that talks about the relationship between sewing and laminating with respect to the plies is this one statement. [00:04:40] Speaker 00: And so that it's not repeated differently or said in a different way somewhere else highlights the importance of this one statement. [00:04:48] Speaker 00: Because it's there's nowhere else in the pad that you can look to to find this. [00:04:51] Speaker 01: Yeah, so that's what I want you to say Is there authority that says that I? [00:04:59] Speaker 01: Have to if we don't have a site in the brief that I don't have a case for you right now I think it's the I wrote a marginal note saying what's the authority and I asked my clerk to look for it and we didn't find anything. [00:05:10] Speaker 00: Oh well, I think it's the flip side of the importance of [00:05:14] Speaker 00: This is the invention line of cases that put particular significance on statements that come there. [00:05:21] Speaker 00: Statements that are elsewhere that don't contradict that would by implication be less important, but I take your honest point. [00:05:30] Speaker 00: Turning to the claim construction issue first of all, the district court aired because it undertook, was essentially a pre-Phillips style claim construction analysis. [00:05:39] Speaker 00: It first looked to extrinsic sources to find the extrinsic definition of the term laminated. [00:05:45] Speaker 04: But you don't dispute that. [00:05:46] Speaker 04: I mean, the term laminated is a term of art. [00:05:49] Speaker 04: It generally doesn't mean sewing. [00:05:51] Speaker 00: That's correct, Your Honor. [00:05:52] Speaker 04: So all we're looking at is all you have is this one sentence. [00:05:57] Speaker 04: They point to a couple other places where it says laminated and doesn't include sewing. [00:06:01] Speaker 04: It's a three or four page pattern. [00:06:03] Speaker 04: So there's not much there. [00:06:04] Speaker 04: I mean, it does seem to me that you have some argument that when [00:06:09] Speaker 04: you are describing the President's invention, and you're talking the main place. [00:06:14] Speaker 04: You talk about how the layers are formed together. [00:06:16] Speaker 04: You say sonar, otherwise. [00:06:18] Speaker 04: On the other hand, you don't say this is defined as sonar, otherwise, or things like that that would make it very clear for us. [00:06:25] Speaker 00: You're right, Your Honor. [00:06:26] Speaker 00: And that's why this is an implicit definition, Mexicography case, not explicit. [00:06:30] Speaker 04: And usually when we find implicit definition [00:06:35] Speaker 04: It's because the specification throughout relies on that same definition. [00:06:42] Speaker 04: And you don't have that. [00:06:43] Speaker 04: You have one instance. [00:06:44] Speaker 04: A pretty good one. [00:06:45] Speaker 04: I mean, when you say laminated means sewn or otherwise laminated, or the two plies are formed together by sewn or otherwise laminated, if that was what we had and you'd said that throughout, I think you'd clearly prevail. [00:07:01] Speaker 04: But we don't. [00:07:02] Speaker 04: So how do we balance what our normal [00:07:05] Speaker 04: rules on implicit definition, which are a stray sentence can't be like psychography. [00:07:10] Speaker 00: Well, I would answer that with two points, if I may, Your Honor. [00:07:13] Speaker 00: First, there are other sections in the patent that use the term laminated, and frankly, there's other sections that use the term sown. [00:07:20] Speaker 00: None of them relate the two to each other. [00:07:22] Speaker 04: Right, I don't think that helps you. [00:07:26] Speaker 00: Right, but it's not inconsistent. [00:07:27] Speaker 00: Saying throughout the patent that the plies are laminated together [00:07:31] Speaker 00: doesn't change if laminated is defined elsewhere. [00:07:34] Speaker 04: Yeah, but the analysis is laminated is a term of art that usually excludes sowing. [00:07:40] Speaker 00: Right. [00:07:40] Speaker 04: I think we all, you even concede that. [00:07:42] Speaker 04: So you have to show when it's using laminated without specific definition in those other places, admit sowing. [00:07:49] Speaker 04: And the only point you have is this one sentence. [00:07:52] Speaker 00: Right. [00:07:52] Speaker 04: I guess my first point we don't- That sentence doesn't say throughout this specification when we use laminated we mean sown or otherwise laminated. [00:08:00] Speaker 04: We have to infer that. [00:08:01] Speaker 00: That would be an explicit definition. [00:08:03] Speaker 00: We don't have that here, I concede. [00:08:05] Speaker 00: My point was only that if there is one definitional statement, and then that redefines the term laminated with that statement, and I understand there's only one, uses of the term laminated throughout the rest of the patent would then be consistent and might mean... Well, except they're not, because the patent uses sewn and laminated in various places, and the assumption is that the use of those terms elsewhere in a patent is that they're distinct. [00:08:31] Speaker 00: Wait, well, two points to that. [00:08:33] Speaker 00: I mean, first of all, it's not in dispute here that sewn and laminated, we're not saying that they're the exact same thing or that they're coextensive. [00:08:42] Speaker 00: They are one as a subset of the other, but that doesn't make them the same exact thing. [00:08:46] Speaker 00: So they're used separate places throughout the rest of the patent. [00:08:50] Speaker 00: It's not necessarily. [00:08:51] Speaker 02: Yeah, but the point is that if laminated includes sewing, [00:08:56] Speaker 02: Why doesn't the fact that elsewhere in the patent, that those terms are used separately, suggest that overall sewing is not part laminated? [00:09:10] Speaker 00: I'm sure I understand your question, but because those terms are used separately throughout other parts of the patent, it's just the patentee discussing more or less specific ways of attachment. [00:09:20] Speaker 00: So it can say laminated, and if [00:09:22] Speaker 00: Our definition is right, then that laminated means including sown, or it can say sown, and that sown is more specific. [00:09:29] Speaker 00: It doesn't include laminated. [00:09:30] Speaker 00: That's the species, not the genus that it's talking about. [00:09:32] Speaker 00: So some parts of the sports bra, it requires to be sown, the species. [00:09:37] Speaker 00: Some parts, it says, can be laminated, which could be... Which could be gluing it or sowing it, and you don't care. [00:09:44] Speaker 00: Is that the point? [00:09:45] Speaker 00: The patentee doesn't care, right. [00:09:47] Speaker 00: The applicant didn't care. [00:09:50] Speaker 00: Your point, Judge Hughes, the second point I was going to make is there are cases from this court that have found a single sentence or even not even mentioning the term in question in the specification are enough to implicitly redefine the term. [00:10:02] Speaker 00: So the idea of a stray sentence changing the way a term is used, if that sentence is clear, or even if there's less than a sentence and the specification is clear on the whole about the definition of a term, [00:10:16] Speaker 00: that has been found in this court to be enough to implicitly redefine a term. [00:10:19] Speaker 02: But in trustees of Columbia, for example, we said that a stray reference wasn't enough. [00:10:25] Speaker 00: Yes, but in trustees of Columbia, that's different because there were contradictory statements elsewhere in the claim, in the specifications. [00:10:33] Speaker 00: So where the majority of specifications said, use the inconsistent with the definition. [00:10:39] Speaker 00: One definitional statement wasn't enough to change all that. [00:10:43] Speaker 00: Here, we don't have that because the [00:10:44] Speaker 00: Other statements that use the term laminated are not definitionally, don't contradict the definition in that one phrase. [00:10:52] Speaker 02: Well, that may be, except for the fact that the ordinary meaning of the term laminated, even according to you, doesn't include sewing. [00:11:05] Speaker 00: Well, right. [00:11:06] Speaker 00: But if the patent redefines the term laminated to include sewing, which the patentee is free to do, then [00:11:12] Speaker 00: I believe that definition controls throughout the whole patent, not just in the claim. [00:11:16] Speaker 00: So using that laminated elsewhere in the specification isn't referring to just the skill of the arts version of what laminated is. [00:11:27] Speaker 00: It's referring to the defined term laminated, which is defined in that sentence. [00:11:38] Speaker 00: I think it's also important to note here, too, that the applicant here was not [00:11:42] Speaker 00: fashion designer wasn't of skill in the art. [00:11:44] Speaker 00: So the fact that these terms are used, that laminate is defined in a way that isn't on point with the term of the art is not necessarily surprising since the applicant was not of the art at the time. [00:12:00] Speaker 00: I'm running out of time, but I would like to get to the disclosure dedication section briefly. [00:12:07] Speaker 00: The point here is similar because the statement [00:12:10] Speaker 00: The relevant sentence is the same. [00:12:12] Speaker 00: So that sown or otherwise laminated statement, which I think the judges, Your Honors, have correctly noted, implies that sown is a subset of laminated. [00:12:22] Speaker 00: X or otherwise Y implies that X is a subset of Y. The district court held that that was clear. [00:12:29] Speaker 00: That's what it usually means, but it wasn't enough to redefine the term. [00:12:32] Speaker 00: But the dedication disclosure dedication rule does not apply then because just because it wasn't enough to redefine the term, [00:12:40] Speaker 00: doesn't change the meaning of the statement. [00:12:42] Speaker 00: It doesn't make those alternative embodiments sewn and laminated. [00:12:45] Speaker 00: The statement, the only statement that relates what sewn means to laminated in relation to the plies of the garment, discloses them as subsets of each other, not alternative embodiments. [00:12:58] Speaker 00: So claiming the genus, even though it wasn't redefined if we get to this part of the analysis, doesn't disclaim the species in the claims. [00:13:09] Speaker 04: I don't understand this argument at all. [00:13:11] Speaker 04: If laminated is properly construed to mean the term of art laminated, which excludes sewing, because sewing is something different. [00:13:22] Speaker 04: Laminated means joined together by glue or whatever, heat treatment or whatever. [00:13:25] Speaker 04: Right. [00:13:26] Speaker 04: If that's a correct claim construction, why does this matter if their garments are sewn? [00:13:33] Speaker 04: I mean, they can't infringe, because the claim construction doesn't permit sewing. [00:13:39] Speaker 00: Right, so that's why this is a doctrine of equivalence argument. [00:13:43] Speaker 00: Dedication disclosure, disclosure dedication, limits by law the application of the doctrine of equivalence. [00:13:49] Speaker 00: So then we'd be in a realm where the literal construction of the claim, they don't infringe, but they may still infringe through the doctrine of equivalence. [00:13:58] Speaker 00: And the district court held it as a matter of law, sewn cannot be an equivalent because it is disclosed in the specification as a separate embodiment and then not claimed. [00:14:07] Speaker 00: Our position is that it was not, if we get to this part of the analysis, it was not disclosed as a separate embodiment. [00:14:11] Speaker 00: It was disclosed as a subset of a larger set of embodiments. [00:14:15] Speaker 00: Now, that statement in this record wasn't enough to redefine the term, but it doesn't change what that statement means in the specification. [00:14:22] Speaker 00: And it's not a disclosure of sewn as a separate embodiment from laminated. [00:14:26] Speaker 00: It's a disclosure that relates the two, albeit if we get to this part, not in a way that redefines the term. [00:14:35] Speaker 00: I reserve the rest of my time, if that's all right. [00:14:37] Speaker 02: Okay. [00:14:54] Speaker 03: May it please the court. [00:14:56] Speaker 03: I would like to highlight two points for why there can be no [00:15:00] Speaker 03: clear redefinition of laminated in the 058 patent. [00:15:04] Speaker 04: How many times would it have taken them to repeat sewn or otherwise laminated to make it an explicit or an implicit definition? [00:15:13] Speaker 04: This isn't a very long path. [00:15:14] Speaker 04: I mean, I've read it wherever I'm sitting here. [00:15:19] Speaker 04: It uses the word laminated half a dozen times, maybe, or maybe a dozen times, and it uses this specific definition of sewn or otherwise laminated once. [00:15:29] Speaker 04: to say that it's a stray sentence, particularly when it's in the key, this invention is sectioning, as opposed to some of the other words, I prefer to use laminated learning, the abstract, and the summary. [00:15:43] Speaker 04: I think this is a hard case, given how simple this path is. [00:15:47] Speaker 04: We don't have 50 or 60 pages of different embodiments and specifications and things like this in one sole sentence relating to this. [00:15:57] Speaker 04: This is [00:15:58] Speaker 04: In the first paragraph on detailed description of the drawings, it says, or the second paragraph, or the third paragraph, there's too many paragraphs. [00:16:07] Speaker 04: It talks about how these things are joined together, and it says typically they're sewn or otherwise laminated. [00:16:12] Speaker 04: Why isn't that enough? [00:16:14] Speaker 03: In this case, Your Honor, it's not enough because it's not at all clear that the patentee clearly intended that statement to be definitional, nor is it clear what definition the patentee supplied by that term. [00:16:28] Speaker 03: so merely having the phrase sewn or otherwise laminated repeated would not be enough to be lexicography in this pattern because it's not even if every time they said they were talking about how these fabrics were joined together it said sonar otherwise laminated that that's correct your honor that is our position for the simple fact that those two words mean completely different things and with that's the point of lexicography is changing the ordinary definitions of something else are you really saying that every time they talk about the two plies [00:16:58] Speaker 04: that if they added the word two plies sewn or otherwise laminated, that every single time they talk about the plies and added that, that still wouldn't amount to lexicography? [00:17:12] Speaker 04: That's correct, Your Honor, for the simple reason that... You're not helping your case when you take extreme positions like that. [00:17:17] Speaker 01: Well, if I may... Supposing they had said sewn or otherwise joined. [00:17:25] Speaker 03: If the specification said sewn or otherwise joined and the claim still recited laminated, is that your honor's question? [00:17:33] Speaker 03: Then at that point laminated is still a term of art with a plain and ordinary meaning. [00:17:37] Speaker 03: There would need to be something that brings this larger concept of joined within the meaning of laminated. [00:17:44] Speaker 02: Is there expert testimony in the record as to how laminated will be understood in the industry here? [00:17:52] Speaker 03: There is, Your Honor, in two places. [00:17:54] Speaker 03: First, at the joint appendix page, it's all by declaration. [00:18:02] Speaker 03: There was no live testimony at the Markman hearing, but the joint appendix page 327, that's our expert Ms. [00:18:08] Speaker 03: Harder's declaration listing seven, I think, dictionary definitions, technical dictionary definitions to support the plain and ordinary meaning that the District Court found here. [00:18:21] Speaker 03: Also, in the joint appendix, their expert, Ms. [00:18:28] Speaker 03: Iztuk, her declaration at page... Sorry, I lost that site, Your Honor. [00:18:45] Speaker 02: You can't find that, because I'd be interested in what their experts say. [00:18:49] Speaker 03: I'll find it. [00:18:50] Speaker 03: Give me one second. [00:19:00] Speaker 03: It's appendix page 495. [00:19:01] Speaker 03: In paragraph 37, she acknowledges that the usage, that sewn is a subset of laminated by reference to this phrase or otherwise. [00:19:21] Speaker 03: She acknowledges that this usage does not comport with the most common uses of sewn and laminated in the industry. [00:19:27] Speaker 04: Well, I think you're trying to agree with that. [00:19:29] Speaker 04: I mean, he essentially conceded during his opening presentation that laminated as a term of art has a specific meaning that doesn't include sewing. [00:19:37] Speaker 04: But the point is, when they describe it in the present invention in a different way, is that enough? [00:19:44] Speaker 04: I know you disagree. [00:19:45] Speaker 04: I mean, we don't have to go back over it. [00:19:46] Speaker 04: But I'm not sure how much I care about what the term of art is, since it's all agreed that if it had just used laminated throughout, it would definitely have excluded sewing. [00:19:59] Speaker 03: Yes, Your Honor. [00:20:03] Speaker 03: On the issue of we're not relying on a minimum usage, Your Honor posed the question of how many times would this phrase have to be repeated. [00:20:11] Speaker 03: I think the difficulty with the phrase sown or otherwise laminated is that it doesn't provide a clear definition of what laminated as used. [00:20:19] Speaker 04: It's not defining laminated. [00:20:21] Speaker 04: It's defining how the two layers are joined together. [00:20:25] Speaker 04: And so there's sown or otherwise laminated. [00:20:28] Speaker 03: But the claim term, your honor, is laminated. [00:20:30] Speaker 03: Right, if we turn. [00:20:30] Speaker 04: Well, no, no, but it's, in doing that, it's making these two layers are joined together. [00:20:35] Speaker 04: I mean, it is making it a subset of laminate, which is not the term of art. [00:20:40] Speaker 04: But you could say laminated, if this cotton said redefine laminated as the heat and everything and sewn, they could do that, right? [00:20:48] Speaker 03: Of course. [00:20:49] Speaker 04: So the question is, does this grammatical construction [00:20:53] Speaker 04: which I think anybody would understand as implying that it's a subset of laminated, do that. [00:20:59] Speaker 04: When you say sewn or otherwise laminated, that's equating laminated with sewn, even if it's not correct. [00:21:05] Speaker 01: And one of your problems is that you take the word otherwise and take it directly contrary to what you just said and say, oh, that's just unsubstantiated attorney argument. [00:21:19] Speaker 01: But a common reading [00:21:21] Speaker 01: would produce exactly what Judge Hughes says. [00:21:25] Speaker 04: I mean, if they were two different things, they would have left out the word otherwise, sewn or laminated. [00:21:30] Speaker 04: And if it said sewn or laminated and it claimed to only use laminated, then you'd have a slam-dot case. [00:21:35] Speaker 04: But when you add the word in otherwise, I mean, this is bad patent drafting. [00:21:39] Speaker 04: This is their fault. [00:21:40] Speaker 04: But when you add in the otherwise, you are making sewn equivalent with lamination. [00:21:47] Speaker 04: It's just grammar. [00:21:49] Speaker 03: I think it's certainly true that in the claims, this court endeavors to interpret the language so as to give every meaning to every word of the claim where possible. [00:21:57] Speaker 03: I'm aware of no case that applies that doctrine to reading specifications specifically. [00:22:02] Speaker 04: It seems to me you're disputing that sewn or otherwise laminated, it clearly makes sewn a subset of laminated. [00:22:13] Speaker 04: I don't see how that's useful to your argument. [00:22:17] Speaker 04: The district court even recognized that that phrase would seem to make it a subset of laminated. [00:22:22] Speaker 04: He just relied on the fact that it wasn't in the context of the entire patent clear enough to provide alternative lexicography. [00:22:30] Speaker 03: I read the district court's opinion slightly differently in that in the abstract the phrase X or otherwise Y would imply that X is a subset of Y. [00:22:39] Speaker 03: But here, where we come to the patent with this undisputed plain and ordinary meaning of these things being entirely different, the district court concluded that that was not enough. [00:22:47] Speaker 01: Well, that's why I asked the joint question. [00:22:49] Speaker 01: We're talking about somebody who is not an expert in the industry. [00:22:54] Speaker 01: And they use that phrase laminated to mean, I think, joint. [00:23:02] Speaker 01: And that's your problem, if that's true. [00:23:08] Speaker 03: If this patent clearly communicated that the word laminated was so broad as to encompass merely being joined, then I agree that would be a different case. [00:23:20] Speaker 03: That would mirror the construction that Blackbird proposed below, sewn or otherwise united, which they've effectively abandoned because it's impermissibly broad to say that by using a term of art laminated, this patentee clearly communicated in [00:23:35] Speaker 03: and intent to encompass all possible manners of joining two layers of fabric. [00:23:40] Speaker 02: That's right, Your Honor. [00:23:49] Speaker 03: And we have intrinsic evidence in this case that this statement [00:23:54] Speaker 03: sewn or otherwise laminated is not clear enough to communicate that intent to a person of ordinary skill in the art. [00:24:00] Speaker 03: That's why we rely on the file history to say that the examiner, who is a person of ordinary skill in the art, read the claim language, read this exact portion of the specification, and concluded that this claim term, laminated, is used consistent with its plain and ordinary meaning. [00:24:15] Speaker 03: We have direct evidence that a person of ordinary skill in the art would not [00:24:19] Speaker 03: take this statement's owner otherwise laminated in the specification as definitional. [00:24:23] Speaker 02: I'm not sure that the examiner said that. [00:24:25] Speaker 02: Could you show me where he said that? [00:24:28] Speaker 03: Yes, your honor. [00:24:28] Speaker 03: If we turn to page 68, appendix page 68, I'm sorry. [00:24:44] Speaker 03: At the top of the page, the examiner is talking about the Lee garment and its disclosure of stitching. [00:24:50] Speaker 03: And then the examiner combines that disclosure of Lee's stitching with the Huang references disclosure of lamination and concludes that the substitution of lamination for stitching, which is a contract that is entirely inconsistent with the idea that sewing is a subset of laminating, [00:25:09] Speaker 03: is well known as seen in the browser yard as shown in Juan. [00:25:13] Speaker 03: If we drop down to the bottom part of that page, Your Honor, where the examiner is discussing this very phrase in the specification, sewn or otherwise laminated together, the examiner writes, therefore, the applicant concedes that the layers can be sewn together, and here's, I think, the key language, instead of laminated. [00:25:36] Speaker 03: and such sewing and lamination are well known. [00:25:38] Speaker 01: What does the next sentence in that mean? [00:25:40] Speaker 01: I have a note to ask you about that. [00:25:43] Speaker 03: I believe the word should be criticality or no critically was given in the applicant's specification as to the specific need for the lamination over the sewing. [00:25:50] Speaker 01: I know what it says. [00:25:51] Speaker 01: What's it mean? [00:25:52] Speaker 03: I believe what [00:25:56] Speaker 03: That there's, in an obviousness context, there's nothing, there's no secondary addition to support the importance of laminating versus sewing when the examiner's trying to put together the obviousness case would be my best guess. [00:26:08] Speaker 03: I'm not entirely sure. [00:26:10] Speaker 01: You are guessing yes. [00:26:15] Speaker 02: Okay, anything further? [00:26:17] Speaker 03: Very briefly on the doctrine of equivalence, your honor. [00:26:19] Speaker 03: I believe what really brings this issue into [00:26:24] Speaker 03: picture is on the reply brief, page 18, Blackbird phrases this issue as, The question is whether the specification clearly discloses to one of skill in the art distinct embodiments where plies of the garment are united by sewing and wherein the plies are united by laminating. [00:26:44] Speaker 03: That reference to distinct embodiments is precisely the test that this court in Johnson & Johnson overruled in Bonk. [00:26:51] Speaker 03: There's no distinct embodiment test for the Disclosure Dedication Rule. [00:26:57] Speaker 03: Okay. [00:26:57] Speaker 02: Thank you, Your Honor. [00:27:00] Speaker 02: Thank you. [00:27:00] Speaker 02: Mr. Freeman, you've got a little bit of time left here, about a minute and a half. [00:27:04] Speaker 00: All right. [00:27:07] Speaker 00: Thank you, Your Honors. [00:27:08] Speaker 00: I'll be brief. [00:27:09] Speaker 00: I think getting back to why, or talking a little bit about why [00:27:14] Speaker 00: Apelli is kind of disputing the meaning of the sewn or otherwise laminated phraseology and what that means in the patent is because they essentially can't win if it means what it actually means because that statement, if it means that sewn is a subset of laminating, at least in that sentence. [00:27:30] Speaker 02: Is it really too much to ask that a patent be a little clearer about lexicography than this is? [00:27:39] Speaker 02: I mean, because somebody comes [00:27:42] Speaker 02: in who's a competitor and reads this patent, I mean, are they really going to understand that laminated includes sewing just because of that one sentence in there? [00:27:51] Speaker 00: I think that one sentence is hard to pass up. [00:27:54] Speaker 00: It's hard to miss. [00:27:54] Speaker 00: But you're right. [00:27:56] Speaker 00: I mean, if it was more explicit, we wouldn't be here. [00:27:59] Speaker 00: Again, I go back to the patentee not being of skill in the art and maybe not being the best patent drafter. [00:28:04] Speaker 00: But regardless, so that gets exactly to the point. [00:28:08] Speaker 00: Either that statement redefines the term laminated to mean [00:28:11] Speaker 00: to have sewn as a constituent subpart of it, where laminated is the genus and sewn is the species. [00:28:17] Speaker 00: Or if the district court is right and that one sentence isn't enough, the question then becomes, does that same sentence disclose, I don't need to say distinct, but alternative embodiments, such that if you claim the genus laminated, you dedicate the species sewing to the publics, and that can't be reclaimed to the doctorate of equivalence. [00:28:37] Speaker 00: But if that statement is the only statement that relates sewing and laminating together, [00:28:41] Speaker 00: then it can't disclose alternative embodiments. [00:28:43] Speaker 00: It discloses embodiments that are related by that genus-species relationship. [00:28:47] Speaker 00: And if you claim the genus, you don't dedicate the species to the public. [00:28:51] Speaker 00: And therefore, it is available under the doctrine of equivalence. [00:28:56] Speaker 02: OK. [00:28:57] Speaker 02: Thank you, Mr. Freeman. [00:28:59] Speaker 02: Thank both of you. [00:28:59] Speaker 02: And so the case is submitted. [00:29:00] Speaker 02: That concludes our session for this morning. [00:29:16] Speaker 02: The honorable court is adjourned to tomorrow morning at 10 a.m.