[00:00:00] Speaker 04:
This before the court is case number 172575, E.I.

[00:00:05] Speaker 04:
Dupont & Demure's Company versus Unifrax 1 LLC.

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This is again an appeal from a judgment of the district court in the district of Delaware, our busy Delaware district court from where so many of our patent pages come.

[00:00:25] Speaker 01:
Yes, ma'am.

[00:00:27] Speaker 04:
Thankfully, they have two more judges right now.

[00:00:30] Speaker 01:
Just this week.

[00:00:31] Speaker 04:
Yep.

[00:00:33] Speaker 04:
Okay.

[00:00:33] Speaker 04:
Mr. Holdroth, you want three minutes for a rebuttal?

[00:00:37] Speaker 01:
Yes, ma'am.

[00:00:39] Speaker 04:
Okay.

[00:00:39] Speaker 04:
You may begin.

[00:00:39] Speaker 01:
Thank you.

[00:00:41] Speaker 01:
May it please the court, I'm Jake Holdroth for the appellant, Unifrax.

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Unifrax asks this court to reverse the district court and render judgment for Unifrax on grounds of

[00:00:54] Speaker 01:
non-infringement and or invalidity as detailed in our briefs.

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I plan to focus my remarks this morning on the claim construction issue.

[00:01:01] Speaker 01:
The district court erred by construing the 100% platelet limitation or 100% inorganic plate limitation using a special definition that there is no carrier.

[00:01:15] Speaker 04:
This allowed any percentage... Under your construction

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Wouldn't it seem that the components of the refractory layer would have to add up to 110%?

[00:01:25] Speaker 01:
So the claim does permit 10% residual moisture.

[00:01:28] Speaker 01:
That's right.

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And that was a confusing issue at claim construction.

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But it's important to understand the source material for these vermiculite layers, as described in the patent, is vermiculite flakes dispersed in water.

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They're made by WR Grace.

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And that's the conventional way that you make this vermiculite platelet layer.

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You take the vermiculite in water, and you spread out a thin layer of it, and then you let the water evaporate.

[00:01:54] Speaker 04:
Is there a difference between residual moisture and residual dispersant?

[00:01:58] Speaker 01:
There could be, Your Honor.

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The claim only permits residual moisture, which can evaporate.

[00:02:04] Speaker 01:
That's consistent with being simply 100% platelets in water.

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There are other dispersants.

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The claim does not include permission to have a residual dispersant.

[00:02:15] Speaker 04:
So as I understand your argument is that you're saying that

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that the 100% refers to before addition of moisture, so you're talking about dry platelets?

[00:02:28] Speaker 01:
You're correct, Your Honor, although it could also be after drying of the platelet layer.

[00:02:33] Speaker 01:
So you lay down this wet dispersion of vermiculite, you dry the water off, and then you can have 100% platelets.

[00:02:41] Speaker 01:
As a practical matter, you can have 10 percent residual moisture because it's hard to dry it off, although it is possible to dry that water off and measure the platelets alone and come up with a 100 percent... So you're saying even after drying you have 100 percent platelets?

[00:02:56] Speaker 01:
After drying, the claim requires... if it's fully dried and the residual moisture is dried off, then you would have 100 percent... Okay, if there's no residual moisture left, but the claim itself specifically contemplates residual moisture.

[00:03:07] Speaker 04:
Correct.

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That's what I'm trying to understand.

[00:03:08] Speaker 01:
That's the only thing it permits.

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100% vermiculite platelets plus 10% residual moisture.

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And that is all that is permitted.

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The critical issue in the case is, can you also have 5% of an organic additive?

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And the claim language, the intrinsic evidence, is very clear that you may not have 95% platelets and up to 5% or more of a silicon additive.

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It's undisputed in this case that that's what the accused product was.

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When the district court

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adopted its construction and started talking about these other additives.

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Did you ever ask the court to define what those other terms mean?

[00:03:49] Speaker 01:
Repeatedly, Your Honor, and especially to make clear that five percent silicon additive is not permitted.

[00:03:57] Speaker 01:
We did that in the claim construction briefing where we set a formulated vermiculite

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is not permitted.

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We did that at summary judgment, where we said silicon additives are not permitted.

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And we did it at J-Mall.

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I guess I'd like to draw the Court's attention to it.

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Was there any extrinsic testimony here?

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Any expert testify to what the 100% by weight limitation means?

[00:04:24] Speaker 01:
Well, we were careful at trial not to argue the claim construction issue to the jury.

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At claim construction, we did not offer it.

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No, ma'am.

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We did not.

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The parties did refer to the intrinsic evidence in the specification, which is that the vermiculite or the platelets can be defined by the specifications referenced in the WR Grace material.

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And the parties did refer to the properties as explained by WR Grace.

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And I can draw your attention to appendix 7615, if I may.

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Okay.

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7615.

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7615.

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It's a W.R.

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Grace description of microlite vermiculite dispersions.

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Okay.

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Now this is a document which the specification at least indirectly refers to and specification says that suitable materials are vermiculite from W.R.

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Grace

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including microlite 963 and microlite XE.

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That's in column three at line 46.

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What you see from this description is two columns under the table.

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On the left side, there's a description of non-formulated products.

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And the description says the non-formulated products, which happen to be 903 HTS and 923, are 100% inorganic dispersions of vermiculite in water.

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So that tells you what 100% means.

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It's the vermiculite flakes in water.

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That's all there is.

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On the right side, it describes formulated products, like what is used in the accused product.

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And those are vermiculite that consists of microlite HTS, which is vermiculite flakes, with proprietary additives to promote adhesion.

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And the last sentence says, these products may contain up to 20% by weight of organics.

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Well, this was one of the disputes.

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I mean, I have to confess that this record was difficult to follow in terms of what it was the jury was being asked to determine.

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But doesn't it say, proprietary additives should promote adhesion, improve wetting, and or increase end product water resistance?

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Does any of that indicate that those products could also be dispersants?

[00:07:02] Speaker 01:
Well, we say no, it does not, particularly not in a dry state, but what this description informs is that you have two choices when you have vermiculite.

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You have unformulated, which is 100% vermiculite in water, as described by Grace, and you have formulated, which is less than 100% in water.

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It has up to 20% additives.

[00:07:29] Speaker 00:
That is exactly what was disclaimed.

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Right, the additives cause it to be less than 100.

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There's up to 20% additives, so it could be as low as 80% vermiculite flakes.

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The particular

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vermiculite, formulated vermiculite used in the infused product, it's undisputed, had 5 percent of the additive, 5 percent PDMS, and 95 percent vermiculite flakes.

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So the formulated versions with less than 100 percent vermiculite flakes is exactly what was, uh, disclaimed by the narrowing amendment.

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The narrowing, the, the, the specifications the Court knows described using vermiculite in a series of purity, uh, 85 percent

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90 percent, 95 percent, or 100 percent.

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That's in column three at line.

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When you say by the, by the, so you're now referring to the prosecution history?

[00:08:32] Speaker 04:
Yes ma'am.

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But, you know, your friend on the other side is going to argue that that prosecution history is not actually a clear disclaimer because what it was attempting to distinguish in the prior art was different from

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what you're arguing was distinguished.

[00:08:48] Speaker 01:
Well, I'll get to the argument, disclaimer, in a second.

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I'm talking about the amendment, which is the amendment is found in Appendix 374.

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I don't think the court needs to look at it.

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It's undisputed.

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It amended the claim from a layer comprising platelets to a layer comprising platelets in an amount of 100% by weight.

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So that was added during prosecution.

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They narrowed their claim to the unformulated version, 100% platelets in water.

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They narrowed out the formulated versions, which were described in the specification, 85 percent, 90 percent, 95 percent.

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Ninety-five percent, that's us.

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That was specifically narrowed out of this claim by amendment.

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Is your argument that dispersants and carriers are mutually exclusive?

[00:09:37] Speaker 01:
Well, my primary argument is that that is a construction issue that should never have been reached, rather any amount of an additive.

[00:09:47] Speaker 01:
we view as less than 100% platelets.

[00:09:50] Speaker 04:
But the rest of that language does add some ambiguity, right?

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Residual moisture.

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The one thing you can have is some water left over from the process.

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That's just a practical reality, that when you lay down flakes in water, you're going to have some water left over.

[00:10:05] Speaker 01:
But that is the only thing the claim permits, is residual moisture.

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Water.

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That's not inconsistent with 100% flakes in water.

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It doesn't say you can have residual silicone.

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It doesn't say you can have residual dispersant.

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There's description in the specification when they had their original disclosure, which was broader than 100%, where they said, well, you could also have residual dispersant.

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But their narrowing amendment went to the 100% in water.

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So if they had wanted to have a claim that allowed residual dispersant, the claim could have said residual dispersant.

[00:10:39] Speaker 01:
It doesn't.

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It only allows residual moisture.

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So our view is the amendment, first of all, the plain meaning

[00:10:47] Speaker 01:
It's straightforward.

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It's 100% flakes.

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A jury can understand what 100% means.

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It's undisputed in this case.

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There were less than 100% flakes, only 95%.

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If you go to the intrinsic evidence, then the amendment makes it even clearer that it was disclaimed down to 100% flakes.

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You can't have 80%.

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You can't have 85%.

[00:11:08] Speaker 04:
But it is true that the specification does talk about other formulations with less than 100%.

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It absolutely does, and those were just claimed away and narrowed by virtue of the amendment.

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I mean, that's undisputed.

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This claim does not allow 80% or 95% vermiculite flakes.

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It explicitly recites 100%.

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So those embodiments were narrowed away by amendment.

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There is even further intrinsic evidence in the child application

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During the prosecution of a child of this application that had an identical limitation at issue, 100% inorganic material, the patentee was confronted with the Mormont Prior Art, which was 95% flakes and 5% silicone.

[00:12:01] Speaker 01:
And the patentee distinguished that Mormont Prior Art by saying his invention

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was 100 percent flakes, and that that was useful because getting rid of the silicon would reduce the risk of potential toxic emissions during burning.

[00:12:23] Speaker 04:
Do you think the Court erred in referring to the parent application?

[00:12:27] Speaker 01:
I do.

[00:12:28] Speaker 01:
Your Honor, the parent application provides a special definition of 100 percent, and it's a broadening definition.

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When you say 100 percent

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simply means no carrier.

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That means you can have any percentage of flakes and any percentage of any other material as long as it's not a carrier.

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So that is a special definition and a broadening one.

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It is found only in that parent specification and it was eliminated in continuation practice.

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The public can conclude from the striking that special definition

[00:13:05] Speaker 01:
from the specification of the patented suit, only that it does not apply.

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And it makes sense that it wouldn't apply.

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I could go into why the parent application was prosecuting a different invention, one that had vermiculite sandwiched in an envelope.

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It was sort of floating freely in this envelope.

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It didn't have a carrier.

[00:13:24] Speaker 04:
But so your position is not so much that the court erred in even considering it, but it erred in giving it undue weight.

[00:13:32] Speaker 04:
I think that's accurate.

[00:13:33] Speaker 01:
It's not my view that a court could never look at language in a parent that's been removed from an asserted patent.

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But certainly under the facts of this case, where the language is used for lexicography because it was a broadening and special definition, not ordinary meaning, where it doesn't make sense when applied to this invention, and where having been removed from the specification, the public can't possibly be expected to say, yes, the language that was stricken

[00:14:01] Speaker 01:
is the special definition that will apply here.

[00:14:04] Speaker 01:
That was error, certainly.

[00:14:06] Speaker 00:
So why is it that in court it's relying on the parent application?

[00:14:10] Speaker 00:
Is it because the claim terms are different, or the claim term we're looking at here is not in the parent application?

[00:14:18] Speaker 01:
That is certainly one important consideration, and there are others.

[00:14:23] Speaker 00:
So one is that... But even in the absence of the claim term from the parent application, we're not foreclosed from

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or will the courts not foreclose from considering the parent application?

[00:14:34] Speaker 01:
I agree with that, Your Honor.

[00:14:36] Speaker 01:
We're not advocating a rule where the court could never look at language in a parent that was removed and stricken from an asserted patent.

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But in the context of this case, where it's being used as lexicography to provide a special broadening definition, and it was stricken from the application of the asserted patent, that seems highly problematic.

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And then when you add to that, that it doesn't even fit this claim.

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So the claim in this case requires that the vermiculite be bonded to a polymer film adhesively.

[00:15:06] Speaker 01:
That is a carrier.

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That's what a carrier is.

[00:15:09] Speaker 01:
It makes no sense to say in this invention there is no carrier.

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In addition, we've got the claim being narrowed to 100% platelets.

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So that definition, there is no carrier, doesn't take into account the narrowing amendment during prosecution.

[00:15:25] Speaker 01:
It was also in that specification while they were prosecuting a very different invention from the one claimed in this case.

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Under those circumstances, it was not proper to use that special definition as the claim construction in this case.

[00:15:40] Speaker 01:
So the jury was asked the wrong question.

[00:15:42] Speaker 04:
Okay.

[00:15:43] Speaker 04:
You're out of time.

[00:15:43] Speaker 04:
We'll give you two minutes for rebuttal.

[00:15:45] Speaker 01:
I would like to reserve my time.

[00:15:46] Speaker 01:
Thank you.

[00:15:47] Speaker 04:
You had about a second left, so I'll give you two minutes.

[00:15:50] Speaker 01:
Okay.

[00:15:50] Speaker 01:
Thank you, Your Honor.

[00:15:51] Speaker 04:
Nothing to reserve.

[00:16:01] Speaker 04:
Mr. Lambert, can we start with the last point, that parent application?

[00:16:06] Speaker 04:
Sure.

[00:16:06] Speaker 04:
I've got a real problem with using the parent application as for lexicography.

[00:16:11] Speaker 04:
I mean, the 926 has an entirely different specification, right?

[00:16:21] Speaker 02:
Not entirely.

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It's similar.

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It did not adopt or incorporate by reference the 027 inherent.

[00:16:28] Speaker 04:
But the specification for the 926 is an independent specification rather than having the same specification, right?

[00:16:33] Speaker 04:
That's correct.

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And it doesn't refer to carrier material?

[00:16:36] Speaker 02:
The 926 specification does refer to fiber material and the desire to avoid that.

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So it's consistent

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with the 027 parent application.

[00:16:46] Speaker 04:
Well, the 027 doesn't even contain the 100% by weight limitation.

[00:16:50] Speaker 02:
It doesn't contain the limitation in a claim, but it does describe the 100% by weight limitation in the specification of the 027.

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So the language is taken verbatim from the 027 patent.

[00:17:02] Speaker 02:
It's not in a claim in the 027 patent, but it's in the specification of the 027 patent.

[00:17:09] Speaker 04:
But you all both, as I understood it, explained to the

[00:17:13] Speaker 04:
this report that he couldn't really use the 027 for purposes of lexicography for this separately claimed patent.

[00:17:21] Speaker 02:
We are not arguing lexicography.

[00:17:23] Speaker 04:
And yet, he took the exact language out of the 027 and made it his construction.

[00:17:28] Speaker 02:
That's right.

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And the verbatim language from the 027 is supported not only, obviously, in the 027 specification, but it's supported by the prosecution history of the 926 patent, because in the prosecution history,

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The inventors overcame the Tompkins patent, which had carrier material.

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And the patentees said, we don't want carrier material.

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It makes it too heavy and too brittle.

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And so they disclaimed layers with carrier material.

[00:17:56] Speaker 02:
The 926 specification said that including fibers, which is a carrier material, that's a cloth, makes the material brittle and too heavy.

[00:18:05] Speaker 02:
So they moved away from it in the specification.

[00:18:08] Speaker 02:
And then the claim language itself also supports the idea

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that 100% by weight is relative to something because, as you pointed out, Judge O'Malley, the limitation includes 100% by weight as well as 10% moisture.

[00:18:23] Speaker 02:
And the way Judge Andrews reconciled the 110% was to say that 100% means it's relative to something.

[00:18:30] Speaker 02:
It's relative to carriers.

[00:18:32] Speaker 04:
But the claim itself says 100% by weight platelets.

[00:18:36] Speaker 04:
Correct.

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And that the only thing that it says is permitted

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is residual moisture.

[00:18:44] Speaker 02:
That's what the claim language says.

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And so one of ordinary skill would look to the intrinsic record here to determine what that 100 percent by weight limitation means.

[00:18:54] Speaker 02:
When you look at the 027 patent, you look at the prosecution history.

[00:18:58] Speaker 04:
The passage from the 027 that the court was relying upon

[00:19:02] Speaker 04:
was one that was distinguishing a layer containing primarily platelets with one containing a lightweight open-weave fabric scrim embedded into or laid onto the inorganic platelet layer, which is a totally different concept than what's at issue here.

[00:19:20] Speaker 02:
It's a different, well, it's distinguishing it from a different layer, but the layers themselves are the same.

[00:19:24] Speaker 02:
The inorganic refractory layer described in the 027 patent

[00:19:28] Speaker 02:
is the same as it is in the 926 claim.

[00:19:34] Speaker 02:
They both want to avoid, they desire to avoid carrier material.

[00:19:39] Speaker 02:
But even if you don't look at the 027 pattern, if you... That's what you meant.

[00:19:44] Speaker 03:
Why didn't you write it?

[00:19:45] Speaker 03:
I find this to be a horribly written claim.

[00:19:49] Speaker 03:
I mean, just facially, when you get 100% and 10%, you get a layer that has 110%.

[00:19:54] Speaker 03:
I don't even understand why there's not an indefiniteness challenge in this.

[00:19:59] Speaker 02:
There wasn't an indefiniteness challenge.

[00:20:00] Speaker 02:
And the reason is because you can reconcile the 100% by weight

[00:20:05] Speaker 02:
with the 10% moisture by saying 100% by weight relative to what?

[00:20:10] Speaker 03:
And the district court said... Why didn't that get into the claim language?

[00:20:14] Speaker 02:
I don't know why it didn't get into the claim language, mainly because the prosecution history made clear that what was being overcome was... This claim generally is the inorganic layer has two things.

[00:20:29] Speaker 03:
It has 100% platelets and then it has a residual 10%.

[00:20:34] Speaker 03:
I assume you bring moisture as water.

[00:20:37] Speaker 02:
No, moisture can be dispersant.

[00:20:40] Speaker 02:
That wasn't argued below.

[00:20:42] Speaker 02:
So there wasn't an argument about what moisture is.

[00:20:44] Speaker 04:
So do you equate residual moisture with residual dispersant?

[00:20:49] Speaker 02:
Residual moisture can include residual dispersant, yes.

[00:20:53] Speaker 02:
They don't have to be the same.

[00:20:54] Speaker 02:
It can be water, but it also could be dispersant.

[00:20:57] Speaker 02:
And dispersant could also be dry.

[00:20:59] Speaker 00:
Can it be an adhesive?

[00:21:00] Speaker 02:
No.

[00:21:02] Speaker 04:
No, and the jury found that what was included... Part of my problem was that there was no definition of carrier given to the jury, no definition of dispersant given to the jury, no definition of... There was a definition of carrier.

[00:21:15] Speaker 02:
It was resin, cloth, or paper, and there wasn't a dispute at trial.

[00:21:20] Speaker 02:
The factual dispute at trial was, is the additive, is it dispersant, or is it a resin?

[00:21:26] Speaker 02:
And the jury found through, there was substantial evidence,

[00:21:30] Speaker 02:
to support the notion that the additive in the accused product is a dispersant, which is permitted under the claim.

[00:21:37] Speaker 02:
And the, and the 926 specification itself allows for residual dispersant.

[00:21:42] Speaker 02:
So that's intrinsic in the 926 itself.

[00:21:45] Speaker 02:
So the, the claim construction is supported by.

[00:21:48] Speaker 04:
Well, it doesn't say allowing for residual dispersant.

[00:21:50] Speaker 04:
It says allowing for residual moisture.

[00:21:52] Speaker 02:
Well, the specification talks about residual dispersant is allowed, and the court included that in its construction.

[00:21:58] Speaker 04:
But that specification was written before the claim was amended to say 100%, right?

[00:22:04] Speaker 02:
No, that part of the specification includes 100% by weight.

[00:22:09] Speaker 02:
The part of the specification, which is at appendix 52, column 3, lines 21 to 26, talks about in some embodiments, platelets comprise 100% of the layer.

[00:22:23] Speaker 02:
The refractory layer may comprise some residual dispersant arising from incomplete drying.

[00:22:27] Speaker 04:
So how much dispersant is permitted before it's no longer residual?

[00:22:31] Speaker 02:
If it's wet dispersant, 10%.

[00:22:36] Speaker 02:
It doesn't specify if it's dry.

[00:22:41] Speaker 00:
Wasn't there similar language in the 027?

[00:22:45] Speaker 02:
There is similar language in the 027, Judge Raina.

[00:22:48] Speaker 02:
And that's consistent.

[00:22:49] Speaker 02:
What you get from the intrinsic record here

[00:22:52] Speaker 02:
is a consistent picture of inventors distancing themselves from carriers.

[00:22:57] Speaker 02:
They didn't want carrier because the Tompkins patent had carrier.

[00:23:00] Speaker 02:
And the continuation patent, the child patent that counsel, my friend, referred to, the inventor said that the refractory layer is binder free.

[00:23:11] Speaker 02:
That again is an indication that they don't want carrier.

[00:23:14] Speaker 02:
So the entire intrinsic record here is consistent with the fact that they're trying to avoid carrier.

[00:23:20] Speaker 02:
I want to address

[00:23:22] Speaker 02:
my friend's first argument, where he said that the, somehow that the, when he referred to the appendix at page 7615 indicating that formulated vermiculite was disclaimed, that's just not true.

[00:23:41] Speaker 02:
The patent itself, appendix 52, column 3, line 44, says suitable

[00:23:50] Speaker 02:
vermiculite materials available from WR Grace under the trade designations Microlite 963, Microlite HTS-XE, which is what Unifrax uses and which is what is identified in the formulated products.

[00:24:04] Speaker 02:
So counsel's mistaken to suggest that these were disclaimed.

[00:24:07] Speaker 02:
They're specifically in the specification.

[00:24:10] Speaker 04:
The patent talks about an inorganic layer, right?

[00:24:17] Speaker 02:
Correct.

[00:24:17] Speaker 04:
But your view is that whatever is residual could be organic material?

[00:24:22] Speaker 02:
If it's not a carrier.

[00:24:24] Speaker 02:
So it has to be 100% platelets relative to carrier.

[00:24:28] Speaker 04:
Well, how is that inconsistent with claiming an inorganic layer?

[00:24:31] Speaker 02:
It's consistent because you can't have inorganic platelet material in there.

[00:24:37] Speaker 02:
It is recognized that there can be dispersant or moisture as long as it's not a carrier.

[00:24:41] Speaker 04:
But it didn't say a layer with inorganic platelet material.

[00:24:44] Speaker 04:
It said an inorganic layer.

[00:24:47] Speaker 02:
It said an inorganic layer with 100% platelets by weight, but it also allowed for 10% moisture.

[00:24:54] Speaker 02:
And so the entire claim history here, all of the intrinsic record is geared toward avoiding carriers.

[00:25:02] Speaker 02:
And the district court's method here was similar to the district court's method in the V formation case, in which the court wasn't getting a special meaning.

[00:25:11] Speaker 02:
It just went back and looked at what the person of ordinary skill would have viewed

[00:25:16] Speaker 02:
and said that the term means this, and there the issue was releasably attached.

[00:25:23] Speaker 02:
And the court said it means easily attached, but it also means you can't use rivets to attach the bindings on, because rivets are permanent.

[00:25:31] Speaker 02:
And the district court in V formation got that from looking at the intrinsic record, just like Judge Andrews did here.

[00:25:37] Speaker 02:
He went to the intrinsic record and saw it.

[00:25:39] Speaker 04:
But you're saying that everything about this patent is to get away from carrier material, right?

[00:25:45] Speaker 02:
I'm saying everything in the intrinsic record relating to this term.

[00:25:48] Speaker 02:
It presents a consistent picture.

[00:25:49] Speaker 04:
But now we're building in concepts of carrier material into the patent.

[00:25:54] Speaker 02:
But the carrier material is already mentioned in the patent.

[00:25:59] Speaker 02:
At column four, which is appendix page 52, column four, lines 18 through 20, or 19 and 20, it talks about a refractory layer comprising ceramic fiber

[00:26:15] Speaker 02:
It's much more porous, brittle, and friable.

[00:26:19] Speaker 02:
It's distinguishing its invention from a layer containing carrier material like the ceramic fiber that was in the Tompkins material.

[00:26:30] Speaker 02:
So again, holistically, the 027 patent, the prosecution history here, the specification here, the claim language here, and the continuation all support this notion that there can't be carrier material.

[00:26:45] Speaker 04:
Why didn't you offer extrinsic evidence?

[00:26:51] Speaker 04:
Why didn't you offer testimony with respect to what these concepts mean?

[00:26:55] Speaker 02:
It wasn't in dispute.

[00:26:56] Speaker 02:
I mean, in terms of what carrier material is.

[00:26:59] Speaker 02:
I thought you were asking why we didn't explain what carrier material is.

[00:27:03] Speaker 02:
We didn't need extrinsic evidence to explain what the construction of 100% by weight meant.

[00:27:08] Speaker 02:
The intrinsic record is consistent there.

[00:27:11] Speaker 02:
It presents a consistent picture of disclaiming carrier material

[00:27:15] Speaker 02:
and saying instead we should have all organic platelet material relative to carrier.

[00:27:20] Speaker 02:
We don't want paper, we don't want resin, we don't want adhesive in that layer.

[00:27:24] Speaker 02:
We want it to be smooth, essentially.

[00:27:27] Speaker 04:
But it also says in the claim we don't want anything other than residual moisture.

[00:27:33] Speaker 02:
It says 100% platelet material and 10% residual moisture.

[00:27:38] Speaker 02:
And so the way to reconcile that 110% is to say,

[00:27:42] Speaker 02:
Though 100% is relative to something, and the intrinsic record makes clear it's relative to carrier material.

[00:27:52] Speaker 02:
The final thing that I just want to focus on, because my friend mentioned it, the continuation application supports the court's claim construction.

[00:28:01] Speaker 02:
He referred to it as the child patent.

[00:28:03] Speaker 02:
And that's at appendix page 7637, where the same inventors, and this is before the Markman decision came down,

[00:28:12] Speaker 02:
said that the refractory layer is, quote, binder-free, end quote, in distinguishing itself from the prior Art-Mormont patent.

[00:28:21] Speaker 02:
Again, binder here at trial was undisputed, was used interchangeably with resin, with adhesive.

[00:28:27] Speaker 02:
Binder means a carrier.

[00:28:28] Speaker 02:
And so again, the inventors are consistent in their disclaiming carrier material and instead focusing on the inorganic refractory material relative to carrier material.

[00:28:40] Speaker 02:
So you've got a parent

[00:28:41] Speaker 02:
You've got a child, you've got the prosecution history, and you've got the specification all consistent with Judge Andrew's construction.

[00:28:53] Speaker 02:
And if the panel has no further questions, I ask the court to affirm.

[00:28:57] Speaker 04:
Thank you.

[00:29:02] Speaker 01:
Thank you briefly, Your Honors.

[00:29:05] Speaker 01:
Of course, the specification does describe

[00:29:07] Speaker 01:
formulated vermiculite with additives in it, that is what was disclaimed.

[00:29:12] Speaker 01:
So the presence of the words microlite Xe in the specification I think don't do anything to limit the disclaimer.

[00:29:19] Speaker 01:
They had to go from less than 100% to 100%.

[00:29:23] Speaker 01:
That is exactly what they disclaimed.

[00:29:26] Speaker 01:
I think this is really in many ways a public notice case and

[00:29:31] Speaker 01:
I know the patentee would like to now say, well, we get to tiptoe up to the line of Tompkins, and anything that is not Tompkins, we get to keep within our claim.

[00:29:38] Speaker 01:
That's not fair, and that's not how public notice works.

[00:29:41] Speaker 01:
They limited their claim to 100%.

[00:29:43] Speaker 01:
They narrowed their claim to 100%.

[00:29:46] Speaker 01:
They don't get to now take it back and say, well, we really wish we had said a layer that does not include the fiber of Tompkins.

[00:29:56] Speaker 01:
Judge Andrews actually did recognize that his

[00:29:58] Speaker 01:
We put him on notice at claim construction that construing the claim as no carrier would simply confuse and render the claim ambiguous and he recognized that it's in Appendix 26.

[00:30:09] Speaker 04:
He said it may cause some further debates over terms.

[00:30:13] Speaker 01:
Right.

[00:30:13] Speaker 01:
And we repeatedly asked Judge Andrews, please clarify your construction and make it clear that silicon additives are not permitted.

[00:30:22] Speaker 01:
That is the decisive issue in this case.

[00:30:24] Speaker 01:
That is what was narrowed out of the case.

[00:30:26] Speaker 01:
That is the plain meaning of 100%.

[00:30:29] Speaker 04:
that's how... So you're saying this is an O2 micro problem?

[00:30:34] Speaker 01:
We did ask the judge to clarify even after closing arguments, but we asked him before in summary judgment at the J-Mall.

[00:30:46] Speaker 01:
So it is a huge problem that the judge adopted a construction that was ambiguous and confusing and

[00:30:54] Speaker 01:
The plaintiff did dance around with Carrier and what does Carrier mean?

[00:30:57] Speaker 01:
In our brief, there's an extensive discussion of how their expert tried to use that to distinguish Mormont in a way that we found unsupported and baseless.

[00:31:07] Speaker 01:
You can't reconcile his construction for purposes of infringement with the construction that was used to try to distinguish Mormont.

[00:31:15] Speaker 01:
And it was a highly problematic construction.

[00:31:17] Speaker 01:
This case has a plain meaning.

[00:31:18] Speaker 01:
It's a straightforward case.

[00:31:19] Speaker 01:
100% means 100%.

[00:31:22] Speaker 01:
undisputed here that the layer is made of less than 100% platelets.

[00:31:25] Speaker 01:
So we request the court to reverse and render.

[00:31:29] Speaker 04:
All right.

[00:31:29] Speaker 04:
Thank you.

[00:31:30] Speaker 01:
Thank you.