[00:00:00] Speaker 00:
It's like a change of dugouts.

[00:00:25] Speaker 02:
For a reverse double header here on it.

[00:00:29] Speaker 00:
Next case.

[00:00:30] Speaker 00:
is IPS Group versus Duncan Solutions and Al, 2018-13-16.

[00:00:37] Speaker 00:
Mr. Costner.

[00:00:39] Speaker 02:
Good morning, and may it please the court.

[00:00:42] Speaker 02:
We're here today on the district court action side because the district court committed fundamental errors, both of claim construction and putting the district court inappropriately into the shoes of the fact finder with respect to two patents asserted by IPS Group.

[00:01:00] Speaker 02:
relating to single-space parking meters that are solar-powered and include the ability for the first time to use a credit card to pay for your parking.

[00:01:10] Speaker 02:
And you see these parking meters outside the court.

[00:01:13] Speaker 02:
They're all through the country.

[00:01:14] Speaker 04:
Let me focus you on, first, the 054.

[00:01:18] Speaker 04:
Thank you, Your Honor.

[00:01:20] Speaker 04:
The claim construction which is reflected in the district court's summary judgment decision, it seems to me,

[00:01:27] Speaker 04:
may be a bit questionable in saying, as you argue, that it has to be entirely within.

[00:01:36] Speaker 04:
My understanding is that the record, the summary judgment record, was not made in the light of that claim construction, which came only after the motion and response were filed.

[00:01:48] Speaker 04:
Is that correct?

[00:01:49] Speaker 02:
That is correct.

[00:01:50] Speaker 02:
And in fact, Your Honor, the claim construction changed in two places in the same order.

[00:01:56] Speaker 02:
So if you look at APPX 21 versus as applied APPX 24, there's a difference in the use of the words between the claim construction and the as applied claim construction to include this concept of entirety.

[00:02:11] Speaker 04:
Okay.

[00:02:11] Speaker 04:
So the experts in preparing their declarations weren't working from this new claim construction, correct?

[00:02:18] Speaker 04:
That's true, Your Honor.

[00:02:19] Speaker 04:
Okay.

[00:02:19] Speaker 04:
So I look at the record here and my understanding is that Finney

[00:02:26] Speaker 04:
produced a declaration saying that there was an infringement.

[00:02:31] Speaker 04:
That there was not infringement, correct?

[00:02:34] Speaker 04:
A subsequent report, yes, Your Honor.

[00:02:35] Speaker 04:
And then you submitted a series of declarations by rosing which said that there is infringement.

[00:02:45] Speaker 04:
Exactly right.

[00:02:46] Speaker 04:
Now I look at those rosing declarations and the problem that I see there is I don't really see any

[00:02:56] Speaker 04:
conclusion by your expert that there's non-infringement except on the theory that there are three separate things here, that there's a middle portion of the meter.

[00:03:10] Speaker 04:
And let's assume that I were to say, I don't agree with that theory that there are three separate portions of the meter as opposed to an upper portion and a lower portion.

[00:03:21] Speaker 04:
I don't see on that assumption that your expert really opined

[00:03:25] Speaker 02:
that there was infringement.

[00:03:28] Speaker 02:
I believe that, Your Honor, so the claims are agnostic to the location of the buttons in the 054 case.

[00:03:37] Speaker 02:
In the 310, these are very different patents that use terms in very different ways.

[00:03:42] Speaker 04:
I don't think you're addressing my concern.

[00:03:44] Speaker 04:
I don't see where your expert said that there was infringement if you put aside the three component

[00:03:55] Speaker 04:
Theory if we can call it that well, I believe that he says for example on 5597 These components may still form part of the lower portion, but she doesn't say that they do I See the issue your honor.

[00:04:11] Speaker 02:
Thank you.

[00:04:12] Speaker 02:
I would point the court.

[00:04:13] Speaker 02:
I believe to paragraphs Well to appendix pages 78 56 through 7 paragraphs 23 Okay, yeah

[00:04:25] Speaker 02:
And unfortunately, I have that cited in my notes.

[00:04:27] Speaker 02:
I do not have the contents of those paragraphs right next to me.

[00:04:31] Speaker 02:
I'm going to grab them right now.

[00:04:33] Speaker 02:
But I believe that at paragraphs 23 through 25, Dr. Rosing does go through and talks about how the Liberty protrudes out of the lower portion.

[00:04:45] Speaker 02:
And that because the claims don't require any particular location for the button panel, that constitutes infringement.

[00:04:55] Speaker 02:
Paul, you're going to have to show me where she says that.

[00:05:15] Speaker 02:
So she, in paragraph 23, is talking about doctors responding to Dr. Finney.

[00:05:20] Speaker 02:
She says that the claim also requires that the area designated lower portion

[00:05:25] Speaker 02:
have a shape and dimension such that it is receivable within the housing base of the single-space parking meter.

[00:05:30] Speaker 02:
She cites to her opening report at paragraphs 60.

[00:05:33] Speaker 04:
Yeah, but that's the reasons why the blue-colored portion is receivable within the housing base.

[00:05:38] Speaker 04:
The blue-colored portion is only part of the lower portion.

[00:05:44] Speaker 04:
That rests on her three-component theory.

[00:05:49] Speaker 02:
But the claim is also an open-ended claim, Your Honor, and doesn't exclude three components.

[00:05:54] Speaker 04:
That's a different argument.

[00:05:56] Speaker 04:
I want you to put that aside for purposes of answering this.

[00:05:59] Speaker 04:
I see her.

[00:06:00] Speaker 04:
I agree.

[00:06:01] Speaker 04:
I think she does say there are three components and only the blue needs to be received within the housing base and it is received within the housing base.

[00:06:13] Speaker 04:
What I'm missing is any statement by your expert that if it's a two-component system that the lower portion is still received

[00:06:24] Speaker 04:
within the base.

[00:06:25] Speaker 04:
That's what's missing.

[00:06:27] Speaker 02:
So we have identified the blue portion is the lower portion according to what I just read.

[00:06:37] Speaker 02:
I understand.

[00:06:39] Speaker 02:
I'm putting that to one side.

[00:06:42] Speaker 02:
And therefore, the protrusion that you're pointing to, the gray box or the uncolored portion of that figure, can remain a portion of the lower portion

[00:06:53] Speaker 02:
So long as the claims don't require that the entirety of the lower portion fit within.

[00:07:01] Speaker 04:
Otherwise, we're getting right back to the erroneous claim construction, which is the entire... What I'm looking for is some statement by your expert that the lower portion here, if we consider there to be only two portions, is receivable.

[00:07:15] Speaker 04:
I don't see that she said that.

[00:07:17] Speaker 02:
Well, she does point to the lower portions being received within the... She points to the blue shape.

[00:07:23] Speaker 02:
is being received with this rest on a three-part here i don't believe it does your honor that that great part can be part of the lower portion as well just the entirety of the lower portion need not fit with it that's the entire problem with the claim construction of the uh... received within as applied by the district court here uh... moreover uh... to the extent that you're saying that there is a portion outside of the uh... of the lower portion

[00:07:52] Speaker 02:
Uh, that can be either a middle portion because the claim is open ended.

[00:07:56] Speaker 02:
And secondly, that can be another piece of a lower portion.

[00:08:01] Speaker 02:
Moreover, your honor, that Liberty meter portion is absolutely scalloped to fit directly within that U shaped cutout in these conventional houses where your honor would historically put the coins in the mechanical meters.

[00:08:15] Speaker 02:
That U shaped cutout is still there.

[00:08:17] Speaker 02:
And that conceivably is part of the lower portion as well.

[00:08:21] Speaker 02:
And in our figures in the patent, figures three, six, and seven, all of them demonstrate that there's a protrusion outside of that U-shaped cutout.

[00:08:31] Speaker 02:
So that is part of the lower portion as well.

[00:08:34] Speaker 02:
That lower portion is exactly adapted.

[00:08:37] Speaker 02:
In fact, their own documents.

[00:08:39] Speaker 04:
I don't want to beat a dead horse here, but I just don't see where she says that the gray portion as opposed to the blue portion is receivable within the housing base.

[00:08:51] Speaker 04:
I just don't see it.

[00:08:53] Speaker 02:
A colleague of mine will take a look and I hope in my rebuttal time I'll have a citation for you.

[00:08:58] Speaker 02:
However, Your Honor, I think the entire device is shown has that U-shaped scallop which allows it to fit inside

[00:09:10] Speaker 02:
that housing element.

[00:09:11] Speaker 02:
If you look at the figures of the patent, you'll see the housing, which is identified with that U shape.

[00:09:18] Speaker 02:
And the meter is designed to drop directly in.

[00:09:21] Speaker 02:
The meter device is designed to drop directly in.

[00:09:24] Speaker 02:
If that gray box didn't have behind it a cutout, which is designed to fit inside or to adapt to that U shape, it would just sit on top.

[00:09:37] Speaker 02:
It wouldn't go all the way in and seat

[00:09:39] Speaker 02:
as it's supposed to in that meter to allow for a cover to come over the top, which is required also by the claim.

[00:09:46] Speaker 02:
So I believe that our expert did address that.

[00:09:49] Speaker 02:
Moreover, their own documents, which our expert relied upon, talk about their meter fitting within.

[00:09:55] Speaker 02:
And these are, for example, appendix site 8417, 8442, it goes on.

[00:10:01] Speaker 02:
But we've identified at least six different sites of their own internal documents and marketing materials

[00:10:07] Speaker 02:
which identified their meter as fitting in or fitting within the lower base.

[00:10:15] Speaker 02:
There's also this issue of including in the closed-ended versus open-ended, which I'd like to address with respect to the 054.

[00:10:22] Speaker 02:
As applied, the district court applied a two-dimension plane and said everything north of that plane is upper and everything south of that plane is lower.

[00:10:31] Speaker 02:
But the patent demonstrates that these are complex three-dimensional structures.

[00:10:36] Speaker 02:
And when the court actually applied that at APPX 23, she committed error.

[00:10:43] Speaker 02:
She excluded the possibility of having an alternative portion, as we've talked about earlier, Judge Dyke.

[00:10:49] Speaker 02:
She said, everything is either upper or lower, and there can't be anything else.

[00:10:54] Speaker 02:
That's misapplying the transitional phrase, including.

[00:10:58] Speaker 02:
Furthermore, with respect to the fact findings,

[00:11:02] Speaker 02:
The judge, Judge Ben Trevango here found that the keypad existed in the lower portion.

[00:11:08] Speaker 02:
So to the extent that she finds the keypad is in the lower portion, the claims are agnostic to where that keypad or where those buttons must occur.

[00:11:17] Speaker 02:
That's incorrect fact finding where she put herself into the shoes of the fact finder.

[00:11:22] Speaker 02:
She became our jury.

[00:11:24] Speaker 02:
And that's inappropriate.

[00:11:26] Speaker 02:
Unless there are further questions on the 054, I'll shift to the 310.

[00:11:31] Speaker 02:
With respect to the 310, there is, we're here on the summary judgment, but let me just say there has been no allegation of any kind of incorrect inventorship with respect to the 310 in the district court action.

[00:11:44] Speaker 02:
With respect to the claim construction, we believe the district court committed error there as well.

[00:11:49] Speaker 02:
With respect to cover panel and the front face of the cover panel, the district court here required that the cover panel be one single element.

[00:11:59] Speaker 02:
the uppermost single element.

[00:12:02] Speaker 02:
That's not what the original claim construction was, but that's the way she applied it.

[00:12:06] Speaker 02:
And you can see that at APPX 8 through 10, for example.

[00:12:12] Speaker 02:
She made a finding, a factual finding, incorrectly, that the dome element is the cover panel.

[00:12:21] Speaker 02:
And that's the APPX 21.

[00:12:24] Speaker 02:
Under international rectifier, that's inappropriate.

[00:12:28] Speaker 02:
She's making fact findings as the fact finder on a record of contested facts, a true battle of the experts.

[00:12:38] Speaker 02:
She also precluded us from arguing doctrine of equivalence.

[00:12:41] Speaker 02:
And that, too, was inappropriate.

[00:12:44] Speaker 02:
The analysis that the district court entered for the doctrine of equivalence summed about a page.

[00:12:52] Speaker 02:
And it flies directly in the face of the Reed versus Portek case.

[00:12:56] Speaker 02:
where this court allowed or said that when you make multiple amendments over a series of art that the examiner knows about, and you make those amendments, including one amendment, you don't apply the prosecution history estoppel bar to that individual amendment.

[00:13:16] Speaker 02:
And I call the court's attention to footnote four of the Reed versus Portak case.

[00:13:20] Speaker 00:
Counsel, you want to save some rebuttal time?

[00:13:22] Speaker 00:
Do you wish to or to continue?

[00:13:24] Speaker 02:
I do wish to, Your Honor.

[00:13:25] Speaker 00:
All right.

[00:13:26] Speaker 00:
Thank you.

[00:13:39] Speaker 03:
Good morning.

[00:13:39] Speaker 03:
May I please the court?

[00:13:40] Speaker 03:
My name is Josh Kalb.

[00:13:41] Speaker 03:
I'm here on behalf of Duncan Parking Technologies and the other appellees.

[00:13:45] Speaker 03:
I'd like to start with the 310 patent because I hope we can just get that out of the way pretty quickly.

[00:13:49] Speaker 03:
The Liberty meter that was accused in this case does not infringe the 310 patent because the Liberty meter's keypad

[00:13:55] Speaker 03:
is on the parking meter device, not on the cover panel portion of the meter housing as claimed in the independent claims of the 310 patent.

[00:14:04] Speaker 03:
And frankly, it's not even a close call.

[00:14:06] Speaker 03:
The district court, as we submitted as supplemental authority, found this claim to be frivolous and determined there'd be an exceptional case and awarded fees based on the assertion of the 310 claims.

[00:14:17] Speaker 03:
So let's look at the literal infringement.

[00:14:20] Speaker 03:
And I want to focus in on one particular claim construction

[00:14:22] Speaker 03:
that is not challenged in this case, which is of the cover panel as the upper structural component of the exterior casing.

[00:14:29] Speaker 03:
Again, the Liberty Meter's keypad is built into the device itself, which is inserted into the housing.

[00:14:36] Speaker 03:
That keypad is not part of the exterior casing.

[00:14:39] Speaker 03:
It is not housing, nor does it become housing simply because the device is inserted into the housing base.

[00:14:45] Speaker 03:
Additionally, it's not on the upper portion of the meter as required by the claim.

[00:14:50] Speaker 03:
The keypad sits well below

[00:14:52] Speaker 03:
the top level of the housing meter base.

[00:14:54] Speaker 03:
So it doesn't meet the upper structural component limitation.

[00:14:57] Speaker 03:
And additionally, it's not structural.

[00:14:59] Speaker 03:
The keypad doesn't bear weight.

[00:15:00] Speaker 03:
It doesn't hold the meter together.

[00:15:02] Speaker 03:
It simply hangs over the edge of the housing base like an umbrella on a doorknob.

[00:15:06] Speaker 03:
So there's no structural component to that feature either.

[00:15:10] Speaker 03:
Now, IPS has claimed that their expert or that the district court ignored their expert's opinion of infringement.

[00:15:18] Speaker 03:
But as this court has already

[00:15:20] Speaker 03:
noted the expert applied the incorrect claim construction there.

[00:15:24] Speaker 03:
And as a result, her opinion is not sufficient to prevent summary judgment.

[00:15:31] Speaker 03:
The other issue that IPS raises with regard to 310 is the doctrine of equivalence.

[00:15:36] Speaker 03:
And here, the application of prosecution in the history of SOPL is clear.

[00:15:41] Speaker 03:
There was a narrowing amendment.

[00:15:42] Speaker 03:
The claim went from an original independent claim, which had no limitation requiring buttons,

[00:15:49] Speaker 03:
there was a dependent claim that included buttons, but just generally on the front face of the meter.

[00:15:55] Speaker 03:
IPS amended their claims to overcome prior art showing buttons on the front face of the meter to limit the structure of the claim dimension to buttons on the cover panel.

[00:16:06] Speaker 03:
What IPS seeks to do now is undo that surrender of claim scope and find infringement through equivalent of buttons that are on the front face.

[00:16:13] Speaker 03:
That's exactly what they surrendered and what they can't get back.

[00:16:16] Speaker 03:
Now, they claim that this amendment was not for the purposes of patentability, but the Warner Jenkinson presumption, first of all, says that there's a presumption that it is.

[00:16:26] Speaker 03:
They've done nothing to rebut that presumption.

[00:16:28] Speaker 03:
They've presented no evidence in the intrinsic record that shows the amendment was made for any purpose other than patentability.

[00:16:34] Speaker 03:
Additionally, they contend that they didn't surrender or that the claim scope they surrendered was tangential.

[00:16:41] Speaker 03:
Here, again, the Festo presumption asserts that

[00:16:45] Speaker 03:
The scope surrendered is from no buttons at all, all the way to buttons on the cover panel, which we fall within.

[00:16:51] Speaker 03:
But more importantly, the prior art that they amended the claim to overcome had buttons on the front face of the meter.

[00:16:59] Speaker 03:
As a result, their amendment, when they told the examiner that we are adding this housing as configured to overcome the prior art, surrendered the concept of simply placing buttons on the front face of the meter.

[00:17:14] Speaker 03:
and limited them to buttons on the cover panel.

[00:17:16] Speaker 03:
And since those don't appear in the accused device, the court properly entered summary judgment.

[00:17:24] Speaker 03:
Now if we can turn to the 054.

[00:17:27] Speaker 01:
This might be a good place for me to re-ask you, and I think your partner kind of indicated you might have something to say.

[00:17:35] Speaker 01:
If we agreed with you about everything you just said about the 310, why isn't the IPR appeal moot

[00:17:42] Speaker 03:
I'm not sure I have a better answer for you, but what I will say is we had standing to file the IPR.

[00:17:47] Speaker 03:
We had been sued.

[00:17:50] Speaker 01:
The question is not everybody almost has standing to file the IPR.

[00:17:56] Speaker 01:
The question is who has standing to come into an Article III court where there's a case of controversy argument and you stipulate it to mootness if there's no infringement of the 310.

[00:18:10] Speaker 03:
I believe this court has the authority to decide either issue as it sees fit.

[00:18:15] Speaker 03:
Today, I can't cite you authority with regards to whether the standing terminates when the infringement action terminates.

[00:18:23] Speaker 04:
But I don't think that's really the question.

[00:18:25] Speaker 04:
The question is whether you care or have an interest in the validity of the 310 patent once your product has been found to be non-infringing.

[00:18:38] Speaker 03:
scope of products in the marketplace.

[00:18:40] Speaker 03:
I don't believe there's anything else implicated by the 310, but I can't say that with certainty right now.

[00:18:47] Speaker 03:
Now, the accused Liberty Meter doesn't infringe the 054 patent because the lower portion of the Liberty Meter does not have the shape and dimensions to be receivable within the housing base.

[00:18:59] Speaker 01:
Is that just because there's a protrusion?

[00:19:01] Speaker 01:
Well, it's because, yes, because that protrusion... My iPhone case, which I would say my iPhone

[00:19:07] Speaker 01:
What is it?

[00:19:08] Speaker 01:
It is shaped and dimensioned so that it's receivable within the base.

[00:19:16] Speaker 01:
Some of the buttons on the side protrude.

[00:19:19] Speaker 03:
I think there's a difference, Your Honor.

[00:19:20] Speaker 01:
By a lot, but they do protrude.

[00:19:22] Speaker 03:
I think there's a difference between protruding, which IPS has contended that the coin slot in figures three protrudes slightly from the housing base, and what the Liberty keypad does, which is it sticks out and comes down

[00:19:35] Speaker 03:
and extends far outside, even the U shape.

[00:19:37] Speaker 01:
One could probably think of, I don't know, one of those front baby carriers where the baby's legs stick out at the bottom.

[00:19:46] Speaker 01:
I would say that the lower portion of the baby is receivable within one of those things.

[00:19:52] Speaker 03:
Well, I think the issue, the critical distinction here is the shape and dimensions to be received.

[00:19:58] Speaker 04:
What is your expert?

[00:19:59] Speaker 04:
I mean, we've got to deal with

[00:20:01] Speaker 04:
with what the record is before us.

[00:20:03] Speaker 04:
What did your expert Finney say rendered the delivery meter non-infringing?

[00:20:12] Speaker 04:
Unfortunately, the Finney declaration on infringement is not in the joint appendix.

[00:20:19] Speaker 03:
Well, one of the arguments he made was specifically this, that because of the keypad extends outside and over the housing base, that the lower portion is not receivable within.

[00:20:30] Speaker 03:
And again, I think

[00:20:30] Speaker 03:
The critical component here is not just the term receivable within.

[00:20:35] Speaker 03:
It's shape and dimensions to be receivable within.

[00:20:39] Speaker 03:
And we're talking about that in the context of the lower portion.

[00:20:42] Speaker 03:
So you might be able, under Plaint and Orderary Meeting, to argue, as IPS does, that putting the meter in the housing base with parts sticking out is receivable within.

[00:20:51] Speaker 03:
But when you talk about the lower portion being required to have the shape and dimensions to be receivable within, what that means to me is that that is the part

[00:21:01] Speaker 03:
that actually has to be inside the housing base.

[00:21:04] Speaker 03:
Now the plaintiffs have argued that the plain and ordinary meaning was the, or I'm sorry, that the court's construction was incorrect because she construed it at all.

[00:21:15] Speaker 03:
Their argument is she should have simply left it at the plain and ordinary meaning of receivable within.

[00:21:20] Speaker 01:
But we're sitting here today because there's a disagreement over- When did you, if you did, first raise this argument that essentially says,

[00:21:30] Speaker 01:
sufficiently great protrusions prevent coming within the claim.

[00:21:35] Speaker 01:
The timing may have something to do with whether they made a record when they knew this was an issue or didn't even know it was an issue.

[00:21:46] Speaker 03:
They may simply have misremembered, but this issue was discussed in detail during the claim construction hearing, the original claim construction hearing.

[00:21:54] Speaker 03:
Although claims from the 310 patent were not being construed at the time, this exact issue was discussed.

[00:22:00] Speaker 03:
And at appendix 163 through 12, the district court said... I'm sorry.

[00:22:09] Speaker 01:
I lost you on the page numbers.

[00:22:10] Speaker 01:
I'm sorry.

[00:22:11] Speaker 03:
It's appendix 166.

[00:22:14] Speaker 03:
And it's at 116, 3 through 12.

[00:22:17] Speaker 03:
The district court said, the distinction that the plaintiffs made in the prosecution history was that the prior art had some of these features were not within the housing unit.

[00:22:26] Speaker 03:
They were fitted to it in some way outside it.

[00:22:28] Speaker 03:
But we're limited to a device that is going to be in this housing unit, which fundamentally, it's a device receivable within the base of a single space parking meter.

[00:22:36] Speaker 03:
So the whole thing has got to fit in this housing base.

[00:22:39] Speaker 03:
The bottom part has to be squarely within the base, fit within it, size and dimension.

[00:22:44] Speaker 03:
So the court's construction could hardly have come as a surprise.

[00:22:48] Speaker 04:
Well, wait, wait, wait.

[00:22:50] Speaker 04:
We're talking about two different things here.

[00:22:52] Speaker 04:
The entirely within construction.

[00:22:55] Speaker 04:
didn't arise until late in the case, after the entire summary judgment record was made, they did not have any notice of that construction when they were preparing their papers.

[00:23:07] Speaker 04:
And I think there's a real question as to whether that construction is right.

[00:23:12] Speaker 04:
Now we're talking about a different issue, which is whether something which protrudes a lot or has an overhang is receivable within.

[00:23:21] Speaker 04:
And I think the question is, was that argument

[00:23:25] Speaker 04:
second argument raised in connection with the summary judgment motion.

[00:23:30] Speaker 04:
Whether something that protrudes renders it not.

[00:23:33] Speaker 04:
Whether it protrudes a lot or has an overhang renders it not receivable within.

[00:23:41] Speaker 03:
I think that yes the question of whether something protruding rendered it not within the scope of the claims was discussed and that was the dispute with regard to the coin slot in figure four where the I'm sorry figure three

[00:23:54] Speaker 03:
where the district court judge said that she didn't believe that that figure necessarily showed the coin slot protruding outside of the housing base.

[00:24:03] Speaker 03:
But the point, and why I read that portion of the appendix, is this idea of entirely within has been out from the beginning of this case in claim construction.

[00:24:13] Speaker 04:
And more than that, the district court didn't actually... Where was the entirely within raised earlier?

[00:24:23] Speaker 04:
I don't see that in the record, and I don't know why you're arguing that it was.

[00:24:27] Speaker 03:
Well, what I'm talking about is that the judge's impression of receivable within was made clear at the claim construction in the portion that I just read.

[00:24:34] Speaker 03:
The entirely point?

[00:24:36] Speaker 03:
Yes.

[00:24:36] Speaker 03:
She said the whole thing has got to fit in this housing base.

[00:24:40] Speaker 03:
The bottom part has to be squarely within the base.

[00:24:42] Speaker 03:
OK.

[00:24:42] Speaker 04:
You can argue the way you want it, but it seems to me pretty clear that she changed the claim construction after the summary judgment papers were filed in this one respect.

[00:24:53] Speaker 03:
I respectfully disagree, but the other issue is I don't believe that entirely is, I think, if you read the judge's claim construction order, entirely wasn't actually part of her construction.

[00:25:07] Speaker 03:
She further explained that what she meant was entirely.

[00:25:11] Speaker 03:
But I think entirely is covered by the plain and ordinary language here.

[00:25:14] Speaker 03:
It's not, again, they are advocating the plain and ordinary language.

[00:25:19] Speaker 03:
But something that has the shape and dimensions to be receivable within has to be inside.

[00:25:27] Speaker 03:
And the court construed receivable to be capable of being contained and within to be inside.

[00:25:34] Speaker 03:
I don't think those are controversial explanations for the plain and ordinary meaning of those terms.

[00:25:39] Speaker 01:
I'm sorry.

[00:25:40] Speaker 01:
Where is the relevant claim construction order?

[00:25:43] Speaker 03:
The relevant claim construction order is?

[00:25:50] Speaker 03:
That is 1696, I believe.

[00:25:54] Speaker 03:
And where is the claim construction?

[00:26:09] Speaker 03:
I'm sorry, Your Honor.

[00:26:10] Speaker 03:
That was the wrong claim construction order.

[00:26:19] Speaker 03:
21, I think, Appendix 21.

[00:26:27] Speaker 03:
There, the court on Appendix 21 at the bottom of the page says the court finds the ordinary meaning of received to be contained and therefore construed.

[00:26:35] Speaker 01:
Is this a summary judgment?

[00:26:37] Speaker 01:
Is this a summary judgment order?

[00:26:39] Speaker 03:
Yeah, and this is where she entered the construction, or she discussed the construction of received.

[00:26:43] Speaker 03:
What would that be?

[00:26:44] Speaker 04:
We're talking about the earlier claim construction that

[00:26:48] Speaker 04:
governed when the parties filed their papers, not some other construction that she arrived at later after the papers were submitted.

[00:26:58] Speaker 04:
What was the construction that was used in the summary judgment briefing?

[00:27:07] Speaker 03:
The issue there, Your Honor, is I don't believe receivable within was construed in that order.

[00:27:14] Speaker 03:
As I said, the issue was discussed at the hearing.

[00:27:17] Speaker 03:
But receivable within was not one of the terms that the court construed in the original claim construction hearing.

[00:27:23] Speaker 03:
And that's an appendix that is appendix 1694 through 1696 are the various terms that the court construed.

[00:27:34] Speaker 01:
And the colloquy was the 1666 and 67?

[00:27:39] Speaker 03:
Correct.

[00:27:41] Speaker 03:
So again, the point on that, Your Honor, is just that

[00:27:45] Speaker 03:
The issue of entirely was known.

[00:27:48] Speaker 03:
The court didn't construe it until summary judgment.

[00:27:52] Speaker 03:
The parties submitted expert reports presenting their own positions.

[00:27:57] Speaker 03:
That's what brought together the disagreement with regard to the construction of receivable within.

[00:28:02] Speaker 04:
You weren't arguing in your summary judgment papers that it had to be entirely within, as I understand it.

[00:28:09] Speaker 04:
I mean, I haven't been able to read the papers, but that's my understanding.

[00:28:13] Speaker 03:
Well, we were arguing that the fact that the keypad extends outside of the housing base.

[00:28:17] Speaker 03:
Yes, that's a different argument.

[00:28:18] Speaker 03:
Well, for us, the keypad is on the lower portion.

[00:28:21] Speaker 03:
So in order for the device to be received entirely within, the keypad cannot overhang the housing base.

[00:28:32] Speaker 03:
Can I help you more?

[00:28:33] Speaker 03:
I'd like to.

[00:28:37] Speaker 00:
Do you have a final thought?

[00:28:39] Speaker 03:
Your Honor, overall, in sum, we believe the district court properly conserved the claims, properly garnered summary judgment.

[00:28:45] Speaker 03:
Thank you for your time today.

[00:28:46] Speaker 03:
And we'd ask that you affirm the district court.

[00:28:48] Speaker 00:
Thank you, Mr. Cobb.

[00:28:49] Speaker 00:
Mr. Costin has some final time.

[00:28:52] Speaker 02:
Thank you, Your Honor.

[00:28:55] Speaker 02:
So in going through, Judge, Dr. Rosing's expert reports, I came across the same sites, I believe, that you had earlier.

[00:29:01] Speaker 02:
Now, as my learned friend here just acknowledged,

[00:29:05] Speaker 02:
This issue of entirely within, the receivable within was not construed at all during the preparation of the expert reports.

[00:29:12] Speaker 02:
I would submit that that particular paragraph that your honor happened upon, that paragraph 228 of that expert, the Dr. Rosen expert report that you cited, does get us where we need to be.

[00:29:24] Speaker 02:
But I believe we also said that in the event that, and we hope there's a remand here, we would have the opportunity to at least address some of these additional and new claim constructions.

[00:29:35] Speaker 01:
Um, and just, just to clarify, did, did either side ask for a construction of the receivable?

[00:29:41] Speaker 02:
No, uh, this, well, this came up from the context.

[00:29:44] Speaker 01:
I'm sorry.

[00:29:44] Speaker 01:
It's not just that there wasn't one as part of the claim construction order in December of 2016.

[00:29:50] Speaker 01:
Is it also true that that was not presented by the parties in their claim construction briefs?

[00:29:56] Speaker 02:
I believe that is absolutely correct.

[00:29:58] Speaker 02:
Because we didn't think there would be an issue about receivable within.

[00:30:01] Speaker 02:
It seems to us that a plain and ordinary meaning would make sense if you can fit your meter in the housing base.

[00:30:07] Speaker 04:
So the summary judgment briefing was based on, on both sides, was based on the plain and ordinary meaning.

[00:30:14] Speaker 02:
Exactly.

[00:30:14] Speaker 02:
At least in terms of receivable within.

[00:30:16] Speaker 02:
And I believe that the court's order at page 21 acknowledges exactly that, that receivable within is being construed for the first time here.

[00:30:25] Speaker 02:
And I'd note also that Receivable Within was construed with no citation to any intrinsic evidence.

[00:30:31] Speaker 02:
So what we would ask, Your Honor, well, I don't want to spend too much time on the 310.

[00:30:38] Speaker 02:
It was suggested that we didn't raise the question or it somehow waived the issue with respect to the claim construction on cover panel.

[00:30:44] Speaker 02:
We had not.

[00:30:45] Speaker 02:
Below it, APPX 9516, I pointed that out in the district court.

[00:30:50] Speaker 02:
And certainly in our opening brief at page 42, note 12, we raise that issue here as well.

[00:30:56] Speaker 02:
At the end, Your Honor, as my waiting seconds here, we would ask that Your Honors reverse the summary judgment on both non-infringement of the 310 and the 054, that you would correct the claim construction here, and that you would remand so we can take this case to trial and have the true fact finder make the findings a fact.

[00:31:17] Speaker 00:
Thank you, Counsel.

[00:31:17] Speaker 00:
We'll take the case under advisement.

[00:31:19] Speaker 02:
Thank you.