[00:00:02] Speaker 00: Next case for argument is 171883, Robert Bosch, tool company versus ITC. [00:00:44] Speaker 00: We're ready whenever you are, sir. [00:00:48] Speaker 04: Good morning, your honor, and may it please the court. [00:00:53] Speaker 04: Everyone in this case agrees that patent lawyer and inventor Steve Gass made a terrific table saw that was tremendously successful. [00:01:06] Speaker 04: And if he had written, if the patents in this suit, I shouldn't say if he had written patents, because there are many other Gass patents, [00:01:14] Speaker 04: If the patents in this suit were directed to that machine, I wouldn't be standing here. [00:01:20] Speaker 04: The ALJ correctly determined that Bosch's accused product is substantially different from the machines that Dr. Gass described in his patent applications. [00:01:32] Speaker 04: Now what's happening is that these remaining two patents are being used to preempt competition from new and different kinds of safety systems. [00:01:42] Speaker 04: This is a preemption case. [00:01:44] Speaker 04: Sostop has literally argued that these kinds of claims cover any mechanism capable of functioning as specified. [00:01:56] Speaker 00: Now, you say this is a preemption case. [00:01:59] Speaker 00: Yes. [00:01:59] Speaker 00: In your brief, you refer to something about functional claiming. [00:02:05] Speaker 00: What beyond? [00:02:07] Speaker 00: You have to have a therefore. [00:02:09] Speaker 00: It's a preemption case, and therefore what? [00:02:12] Speaker 00: They preempt the entire field. [00:02:14] Speaker 00: There's a one-on-one problem here? [00:02:16] Speaker 04: Yes, Your Honor. [00:02:17] Speaker 04: That's where I come out with what the correct label is. [00:02:22] Speaker 04: We know from court cases ranging from the Morse case way back when through Halliburton in 1946, through some lower court decisions more recently, that one simply cannot claim [00:02:41] Speaker 04: the results of the machine, you have to claim the machine that you invented. [00:02:46] Speaker 04: You can't say, I claim anything that retracts a blade when it detects some sort of dangerous condition. [00:02:53] Speaker 04: And I think because of the preemption concern and the way 101 was described in the Supreme Court's Alice decision, I think Section 101 is right where these claims belong. [00:03:07] Speaker 04: They're directed to the abstract idea of a safety system. [00:03:12] Speaker 04: And there's nothing more there in the claim except generic hardware, which I think is the same as the generic. [00:03:21] Speaker 00: Could you argue this preemption theory in your brief? [00:03:25] Speaker 00: Yes. [00:03:27] Speaker 00: Just looking at the summary of the argument, you're claiming that the claims are purely functional and generic, i.e. [00:03:35] Speaker 00: abstract idea. [00:03:39] Speaker 00: That would be in the functional... The theory is functional claiming, 112f. [00:03:52] Speaker 00: Functional recitation. [00:03:53] Speaker 00: I'm going through your argument about Halberden. [00:04:01] Speaker 00: Purely functional claim language. [00:04:04] Speaker 00: I mean, you do say, and impermissibly covers any means. [00:04:08] Speaker 04: Page 58, Your Honor, of our opening brief. [00:04:13] Speaker 04: In the third line under heading 2.5, we wrote that if one pays attention to the intrinsic evidence. [00:04:23] Speaker 00: I'm sorry. [00:04:24] Speaker 00: I was just looking at the heading as 2.5. [00:04:27] Speaker 04: That talks about functional claim. [00:04:28] Speaker 04: That's right. [00:04:29] Speaker 04: And in the third line, we wrote that if you track the intrinsic evidence, instead of doing a pure Williamson analysis, [00:04:38] Speaker 04: then the claims are not means plus function, and they extend to and preempt all systems and mechanisms capable of performing the recited functions, even if those systems and mechanisms were invented long ago by others or have not yet been invented. [00:04:52] Speaker 04: That's exactly what's going on in this case. [00:04:57] Speaker 04: Now, there are some alternatives to addressing this problem, which can be labeled under 101, [00:05:08] Speaker 04: You could look at it as a variety of Section 112 problems. [00:05:13] Speaker 04: But there are some alternatives in this case. [00:05:14] Speaker 02: I'm out of curiosity. [00:05:17] Speaker 02: It seems like an odd claim to fall under 101. [00:05:23] Speaker 02: The claim is to a woodworking machine comprising a work surface with a cutting region, a cutting tool, a detection system, a reaction system. [00:05:33] Speaker 02: Can you point me to any 101 case that has ever been written [00:05:38] Speaker 02: that you think are the best 101 case that you know of that has some claim sort of like this that was found to be patent-ineligible. [00:05:49] Speaker 02: What would be your closest analog among those cases where ineligibility has been determined? [00:05:55] Speaker 04: So a Section 101 case dealing with generic hardware that isn't computer-related or biological, something closer to a power tool you're on? [00:06:06] Speaker 02: I will give you the liberty to choose anything. [00:06:09] Speaker 02: This is a table saw. [00:06:13] Speaker 02: I don't see what's abstract about that. [00:06:14] Speaker 02: I'm really struggling. [00:06:16] Speaker 02: I honestly think this may be the most bizarre 101 argument I've ever heard in the history of my time on the court. [00:06:24] Speaker 02: And so I'm trying to find out where you came up with this. [00:06:30] Speaker 02: It's a very bizarre argument, sir. [00:06:32] Speaker 02: And I guess I'm just wondering, is there some case that led you [00:06:36] Speaker 02: down this road that made you think, ah, well, if that case was 101, then ours could be too. [00:06:41] Speaker 04: The Alice case is 101, Your Honor, and that's the case that led me down the road, the generic hardware case, because that's what Alice describes as a patent directed to an idea which, in my view, these claims are directed to the idea of a safety system, not to any particular safety system. [00:07:01] Speaker 04: And the reason I say that, I think we could look at [00:07:05] Speaker 04: One of the shortcuts that I mentioned would be looking at the claim element mechanism having a movable component in the 279 patent. [00:07:18] Speaker 04: Our contention from the beginning of the case, based on our expert's unrevoted, uncross-examined opinion, was that one of skill in the art, reading that phrase in that patent claim in the context of the specification and the intrinsic evidence, [00:07:35] Speaker 04: would understand the movable component to be a break call. [00:07:39] Speaker 04: And he or she would understand that based on the specifications setting forth dimensions, such as 1 32nd of an inch, 3 milliseconds, that track perfectly between the claim language, which uses those dimensions, and the specification that uses those dimensions, and would conclude that the movable component is a break call. [00:08:01] Speaker 04: In which case, we don't have any infringement issue because our product doesn't [00:08:05] Speaker 04: use a brake. [00:08:07] Speaker 03: Does the brake pawl contribute to the retraction of the cutting tool? [00:08:12] Speaker 04: It does, Your Honor. [00:08:14] Speaker 04: In the SawStop's primary example and in their commercial product, the brake pawl stops the blade. [00:08:22] Speaker 04: And when it grabs the blade, the angular momentum of the spinning blade is transferred into a downward force that pulls the blade and the brake pawl downward. [00:08:33] Speaker 04: Can I ask you a question? [00:08:34] Speaker 04: Go ahead. [00:08:35] Speaker 04: I was going to say, if the movable component is not a break call, which is what the ALJ concluded, he concluded it was the plain language, then it's anything that moves. [00:08:49] Speaker 04: And that, Your Honor, is where I come to the abstract idea problem, because if it's anything that moves, it is, as SawStop itself said to the patent office, covering any machine that will perform this function. [00:09:02] Speaker 04: no matter how it's engineered or designed or what kind of component is moving. [00:09:08] Speaker 04: Now, earlier cases have looked at this as an issue of indefiniteness. [00:09:15] Speaker 04: I think that's been a frequent label in the older cases. [00:09:19] Speaker 04: I was concerned that that label doesn't fit post-Nautilus because, in fact, if one of skill and the art can look at one of these machines and determine whether, in fact, [00:09:31] Speaker 04: It detects some sort of dangerous condition through some sort of detection mechanism and retracts the blade with some sort of retraction mechanism. [00:09:42] Speaker 04: And it does so within 14 milliseconds. [00:09:44] Speaker 04: One of skill in the art knows whether it is within that claim or whether it is not. [00:09:47] Speaker 04: And the claim doesn't seem to me to be indefinite under the Nautilus test. [00:09:52] Speaker 03: I guess the concern I had, I share some of the concerns Judge Moore expressed, but I was also concerned that [00:10:01] Speaker 03: your functional claiming attack on the claims was a tad underdeveloped. [00:10:07] Speaker 03: I mean, we've seen a lot of 101 briefs now over the past few years and they always go through the two-step framework and they always try to walk us through a particular claim and then go line by line through the various limitations and explain why each of those individual limitations ultimately doesn't add to anything. [00:10:27] Speaker 03: either alone or as an ordered combination to create something that could be considered an inventive concept, because everything that's really in there is just generic, well-understood routine, et cetera, et cetera. [00:10:38] Speaker 03: And so when I looked at your brief below to the ALJ, as well as your blue brief, I see something that's a little skimpy on the analysis. [00:10:46] Speaker 03: And so I was concerned about why maybe the ALJ, it wasn't unreasonable to find that your [00:10:56] Speaker 03: your references to Halliburton, Miyazaki, 112.1, 101, it all seemed a little bit of, I don't know, a little underdeveloped. [00:11:13] Speaker 04: And if you were looking at just that portion of the record, I can understand why you would say that, Your Honor. [00:11:21] Speaker 04: Immediately after the judge issued his, the ALJ issued his claim construction, [00:11:26] Speaker 04: in which he said that everything in all the claims is to be given its plain and ordinary meaning without any further elucidation. [00:11:36] Speaker 04: Immediately after that, we filed a motion for summary determination on this issue in which we dealt with section 101. [00:11:46] Speaker 04: Well, we filed the brief immediately after the initial markment decision in which we went through all of these cases [00:11:54] Speaker 04: in detail and looked at the various legal labels because really what we're talking about is what label is it for what's wrong with these claims. [00:12:03] Speaker 04: We discussed all the labels, 101, enablement, written description, indefiniteness, federal common law. [00:12:11] Speaker 04: That motion was still pending when we had the hearing and it was still pending when the hearing was ended and it was still pending when we wrote our post [00:12:20] Speaker 04: hearing briefs. [00:12:21] Speaker 04: You're correct, Your Honor, that immediately after we filed that motion, the Judge Sue Esponte ordered new claim construction briefing on the question of whether, after all, these claims were linked in some way to the specification, whether the specification does bind them in some way and make them concrete in some way and interpret them under [00:12:50] Speaker 04: 112F. [00:12:54] Speaker 04: But again, if we circle back, I'll reserve the remainder. [00:13:02] Speaker 04: Thank you. [00:13:02] Speaker 00: All right, I guess there's another split argument. [00:13:08] Speaker 00: We're running the clock for each of you independently. [00:13:14] Speaker 01: May it please the courts? [00:13:17] Speaker 01: Here, the commission correctly found that these claims are not invalid as abstract idea is under 101. [00:13:24] Speaker 01: Bosch here failed to apply the two-step test of Mayo and Alice to any claim, and the failure to even attempt to apply the test is well short of clearly convincing evidence. [00:13:36] Speaker 01: The commission also correctly found that the claims are not invalid for being functional. [00:13:42] Speaker 02: I would like you only to address, if you don't mind, you don't need to address the 101 argument, but I'd like you to just address the functionality with regard to a reaction system, and tell me why it was correct to conclude that's not means plus function language, and by the way, your answer can include that everyone, including Bosch below, told you it wasn't, but go ahead and address why that's not means plus function language. [00:14:09] Speaker 01: So with that specific language, [00:14:12] Speaker 01: specification teaches that the... Well, let's start with the claim language. [00:14:16] Speaker 02: Is there structure in it? [00:14:21] Speaker 02: First, tell me, what did people below argue? [00:14:23] Speaker 02: Did people below try to convince the commission that this was 112.6 language? [00:14:29] Speaker 01: So below, both parties argued that the term was not a means postage. [00:14:33] Speaker 01: That specifically Bosch on Appendix 1817 argued [00:14:38] Speaker 01: No party here is a challenger advocating for the application of 112 acts. [00:14:41] Speaker 02: So below, they said this is not 112, sixth language, but then they lost. [00:14:47] Speaker 02: And now on appeal, they're saying, well, yes, it is. [00:14:49] Speaker 02: And it was a mistake not to treat it as so. [00:14:52] Speaker 01: They are doing that, yes. [00:14:53] Speaker 01: Now, although they did present a half-hearted argument that the reaction system is means plus function, but they failed to provide any support for that argument. [00:15:02] Speaker 01: That despite this court's precedent, stating that the full claim term and the intrinsic evidence should be considered as means plus [00:15:07] Speaker 01: in the means plus function analysis, Bosch ignored the intrinsic evidence entirely. [00:15:13] Speaker 01: And that Bosch only cites a single sentence of conclusory expert testimony, and that testimony opined in the term is not means plus function. [00:15:21] Speaker 02: That expert testimony opined that it was not means plus function? [00:15:24] Speaker 02: Correct. [00:15:25] Speaker 02: I mean, it is a question of law, right? [00:15:27] Speaker 02: Whether or not something is 112.6 or not, isn't that a question of law? [00:15:31] Speaker 02: It's claim construction. [00:15:32] Speaker 01: It is a question of law. [00:15:32] Speaker 02: It can be based on underlying facts for sure, like any other kind of claim construction, [00:15:37] Speaker 02: In this case, I guess, experts don't generally offer opinions on questions of law. [00:15:44] Speaker 01: Correct. [00:15:45] Speaker 01: But under Williamson, the term doesn't use means, so it's presumed not to be means plus function. [00:15:51] Speaker 01: The parties both agreed that the presumption was not rebutted, and no one presented any evidence to the contrary. [00:15:57] Speaker 01: So here, the ALJ correctly found that this term is not means plus function. [00:16:02] Speaker 00: You mean evidence to the contrary? [00:16:03] Speaker 00: What do you mean by that, evidence to the contrary? [00:16:07] Speaker 01: Well, there's no evidence to rebut the presumption, is what I'm saying. [00:16:10] Speaker 01: That it is presumed not to be means plus function, and that has not been rebutted by any evidence. [00:16:22] Speaker 03: But the ALJ went ahead and did an actual analysis of whether to invoke one-pol-6. [00:16:29] Speaker 01: He did perform an analysis of whether to invoke 112.6. [00:16:32] Speaker 01: He considered the breadth of the claim and the breadth of the specification. [00:16:37] Speaker 01: And he determined that a person with ordinary skill in the art would understand that. [00:16:42] Speaker 03: So I guess now that the ALJ has passed on it and the commission essentially endorsed it, is it something that can be addressed here on appeal now that the ALJ has actually passed on the issue? [00:16:55] Speaker 03: Or would you say that the other side has waived [00:16:58] Speaker 03: any right to challenge the choice that ALJ made on various decisions on which limitations fall within 112.6, 112.F? [00:17:10] Speaker 01: With respect to the reacting system, I don't believe that it's been waived, but I would say that when the presumption is on you to rebut it and you argue essentially both ways, that it is means plus function and not means plus function, that the ALJ reasonably determined that [00:17:27] Speaker 01: It was not meansful function. [00:17:32] Speaker 01: And then, and in any event, he did waive, the detection system was not raised below, and that was waived, and the mechanism with the movable component was also not raised below. [00:17:45] Speaker 01: So that was waived by Bosch by failing to raise it. [00:17:52] Speaker 01: With respect to the movable component, the commission correctly construed movable components as its plain and ordinary meaning. [00:17:57] Speaker 01: Basha's appeal brief fails to explain the legal basis for its construction, and that construction violates the principle that limitations in the specification should not be imported into the claims, and also violates the doctrine of claim differentiation. [00:18:15] Speaker 01: So, just turning back to the functional claiming arguments, it's plainly contrary to Swineheart, which expressly held that functional language is not per se invalid under 112. [00:18:27] Speaker 03: Bosch made no attempt to apply a... Swinehart also doesn't quite go so far as to say any and all kinds of functional claiming are perfectly fine. [00:18:39] Speaker 03: Would you agree there are some strings attached to the usage of functional claiming? [00:18:44] Speaker 01: Swinehart makes it clear that functional claiming is assessed under 112, so whether that particular functional language is indefinite, lacks written description, or is not enabled. [00:18:56] Speaker 01: Now, Bosch made no attempt to apply any of those 112 tests to any claim. [00:18:59] Speaker 01: And even here today, Bosch was arguing that it wasn't indefinite. [00:19:04] Speaker 01: So based on all of these failures to set forth a basis why these claims are invalid, that these claims are presumed to be valid. [00:19:19] Speaker 01: That's all I have. [00:19:20] Speaker 01: So if there's any questions, thank you. [00:19:32] Speaker 05: Good morning. [00:19:33] Speaker 05: May it please the court? [00:19:35] Speaker 05: I'd like to just briefly address the issue of the 112-6 question on reaction system. [00:19:43] Speaker 00: You also maintain, as your friend did, that there was no waiver here? [00:19:47] Speaker 05: Well, I think they did waive because they presented an argument that it, in fact, was not 112-6 repeatedly. [00:19:53] Speaker 05: So their argument was that it is not 112-6. [00:19:55] Speaker 05: Their expert said that, at appendix page 337, [00:20:02] Speaker 05: In my opinion, as set forth in more detail below, one of skill in the art would understand this term and this claim to describe any system capable of retracting the cutting tool below the work surface. [00:20:12] Speaker 05: It's a class of structures, which is what the ALJ found. [00:20:15] Speaker 05: And he did that. [00:20:16] Speaker 05: The burden was on them, of course, because there's a presumption. [00:20:19] Speaker 05: But he went through and did the analysis and looked at the patent, looked at the testimony. [00:20:24] Speaker 05: All the experts at parties were all saying it's not 112.6. [00:20:29] Speaker 03: That litigation choice by Bosch seems to feed into a strategy of trying to knock out these claims, perhaps under section 101. [00:20:38] Speaker 03: Because if all the limitations are so broad and generic that they encompass any and all items that may do the various functions, then perhaps the claim is nothing more than the idea of a table saw where if you touch the saw, [00:20:59] Speaker 03: a SOG will immediately stop. [00:21:01] Speaker 03: And so therefore, if that is an abstract idea, then the claim covers any and all means of accomplishing that abstract idea. [00:21:10] Speaker 03: Maybe there's some small ancillary things on the side, but that would be the basis for why the claim would fall under 101. [00:21:18] Speaker 03: So I guess in a sense, it's probably, I think in your interest to argue that, well, [00:21:26] Speaker 03: these limitations are not so purely functional, whether it's the reaction system or the detection system, right? [00:21:37] Speaker 05: I think the reaction system is the one that's at issue primarily, Your Honor. [00:21:40] Speaker 03: Right. [00:21:41] Speaker 03: So, I mean, you're saying it doesn't fall within 112.6. [00:21:45] Speaker 03: That's right, Your Honor, because... And so, therefore, the term reaction system must somehow invoke some kind of sufficiently definite structure. [00:21:57] Speaker 05: It's a class of structures like a break mechanism, Your Honor. [00:21:59] Speaker 05: And the question before you is, there's a presumption that it is not 112-6. [00:22:05] Speaker 05: And the ALJ went and examined the record and said, this is being used to define a class of structures like detent mechanism in the Greenberg case and like break mechanism. [00:22:14] Speaker 05: In fact, in column 12 of the patent at appendix page 14995, the patentees say at lines three and four, a retraction system may be used in addition to or instead of other safety mechanisms. [00:22:27] Speaker 05: Figures three and four show side views of a table saw configured with both a retraction system and a breaking mechanism. [00:22:33] Speaker 05: They're using the word retraction system there to connote a structure of systems that are used just like a breaking mechanism, but this one is one that retracts. [00:22:41] Speaker 05: And the ALJ found that then in fact this did define a class of structures, not one specific embodiment. [00:22:48] Speaker 05: They go on and they use that phrase throughout the specification to talk about retraction systems in this more generic sense like detent mechanism. [00:22:55] Speaker 05: Breaking mechanism. [00:22:58] Speaker 03: I know the judge said that reaction systems somehow evoke the idea of a class of structures, but I don't think he went further and said, what are those class of structures? [00:23:10] Speaker 03: Your translation of class of structures is what, precisely? [00:23:15] Speaker 05: A class of structures would be what for a retraction system? [00:23:17] Speaker 03: That does breaking and or retracting? [00:23:20] Speaker 05: No, no. [00:23:21] Speaker 05: The break mechanism would be one class of structures. [00:23:23] Speaker 05: Retraction would be another class, and you can use both in a device if you so choose, and some embodiments have that. [00:23:29] Speaker 05: Retraction system would be one where you have a mount that's movable and an actuator that's going to mount the blade on it, and an actuator that is then going to move that away when the detection takes place. [00:23:42] Speaker 05: And that is how the patent is used, and that's how the ALJ found it, is that the retraction system is a broad class structure. [00:23:48] Speaker 05: In fact, at the end of the patent, your honor, at column 22, [00:23:52] Speaker 05: The patencies go on and say, well, one particular embodiment implementation of a retraction assembly 110 has been described, it will be appreciated that numerous alterations and modifications are possible within the scope of the invention. [00:24:04] Speaker 05: They're using the word retraction system like break mechanism, which the other side concedes is a class of structures. [00:24:10] Speaker 05: They're not using it any differently. [00:24:11] Speaker 05: They're saying there's a class of structures of retraction systems, which are well known in the art, and there's breaking mechanisms. [00:24:17] Speaker 05: They're using it in the way that the LJ said, which is it's a class of structures. [00:24:21] Speaker 03: If the claim, instead of saying reaction system, et cetera, configured to retract the cutting tool, it said a reaction means configured to retract the cutting tool, would that be a means plus function claim? [00:24:38] Speaker 03: Would that be a means plus function annotation? [00:24:39] Speaker 05: No, I would not say this means plus function because it would still be a, there would be a presumption going one way, but in fact, if you say breaking means, [00:24:47] Speaker 05: for stopping something. [00:24:48] Speaker 05: Some would say, well, that's a breaking mechanisms, and that's a class of structures. [00:24:52] Speaker 05: So I would not say that would be the case. [00:24:54] Speaker 05: It's not the issue here, of course. [00:24:56] Speaker 05: And, Your Honor, even if this language were functional, which we don't believe it is, the LGA said it's not functional, it's a class of structures, that would still not give them grounds to knock the patent out. [00:25:05] Speaker 05: There'd be one claim term out of several that supposedly has some functional aspect to it. [00:25:10] Speaker 05: That's not what Alice is about. [00:25:11] Speaker 05: Alice is taking a look at the entire claim. [00:25:14] Speaker 05: We're not attempting to claim all structures as they say that, [00:25:17] Speaker 05: will break this. [00:25:18] Speaker 05: If you look at claim 12, for example, it requires an explosive. [00:25:22] Speaker 05: So if you use something besides an explosive, you don't infringe claim 12. [00:25:27] Speaker 05: Claim 8 requires a contact detection, but there's well-known systems that use proximity detection. [00:25:33] Speaker 05: So there's no claim here that is covering every single way of having a safety device. [00:25:39] Speaker 05: None of the claims do. [00:25:40] Speaker 05: In fact, if you look at claim 16, [00:25:41] Speaker 00: Yeah, but that's not hardly, I mean, if you're talking about the preemption, I mean, that's not hardly necessary for preemption, right? [00:25:47] Speaker 00: You can look at a smaller field than the entire field to establish preemption. [00:25:52] Speaker 05: Yes, but their argument, Your Honor, is that we are preempting every way that you can try and make a device that is, their claims here, and you have to look at each claim individually, every way you can make a device that will have a safety mechanism that will, as you said, if you put your finger against it, it's going to stop. [00:26:07] Speaker 05: Claim 16 of the 279 requires a retraction system. [00:26:11] Speaker 05: There are some systems that only use a break. [00:26:14] Speaker 05: So if you have a break-only system, you are not going to infringe claim 16. [00:26:17] Speaker 05: So there is no preemption here whatsoever. [00:26:20] Speaker 05: If there was a preemption issue, if they said, well, you're covering too much, their own brief says on page 58 what their remedy was. [00:26:27] Speaker 05: They say, even if those systems and mechanisms were invented long ago by others or have not yet been invented, they had an opportunity to say that there was an anticipation issue here, that there was obviousness, that there's 112.1 issues. [00:26:39] Speaker 05: They couldn't establish any of that, Your Honor. [00:26:41] Speaker 05: These claims do not cover an infinite number of devices. [00:26:45] Speaker 05: There are ways to do, excuse me, there are ways to practice that don't meet the scope of these claims in every single instance. [00:26:53] Speaker 03: Thank you. [00:26:53] Speaker 03: I'm sorry. [00:26:54] Speaker 03: Getting back to my reaction means hypothetical. [00:26:59] Speaker 03: You're saying that would not be a 112F limitation because, because why? [00:27:06] Speaker 03: Because the language describing the operation of the [00:27:11] Speaker 03: reaction means to retract the cutting tool below the work surface within 14 milliseconds is enough description of the operation of the reaction means such that you would understand a class of structures in your mind that isn't indefinite? [00:27:30] Speaker 05: Well, your honor, indefinites would be a different question, but yes, there would be a class of structures. [00:27:34] Speaker 03: Well, that's the whole point of the 112.6 inquiry is to try to figure out whatever buzzword that's being used [00:27:41] Speaker 03: Is it a nonce word because it doesn't really give you any idea of what the structure is, or is it something that tells you enough of an idea of what the structure is or class of structures is to one of ordinary skill in the art that they would say, okay, I don't need to invoke 112F now in understanding this claim limitation? [00:28:00] Speaker 05: As I said, that's not the issue here, but Your Honor, if a person read that over and said, I think this actually relates to or is a class of structures, [00:28:10] Speaker 05: There's just a presumption with the means. [00:28:12] Speaker 05: So it wouldn't necessarily mean that it's 112.6. [00:28:15] Speaker 05: Just as I said, like a breaking. [00:28:16] Speaker 05: If you say breaking means, someone would say, well, that just means to use a break. [00:28:19] Speaker 05: There's a class of structures that are breaks. [00:28:21] Speaker 05: But I said, that's not the issue here. [00:28:22] Speaker 05: The issue here was one where the presumption went the other way, and there was no evidence by the other side. [00:28:27] Speaker 05: And the court analyzed all the evidence in the LJ and decided that this was a class of structures, very consistent. [00:28:33] Speaker 02: The problem with your analogy is a breaking system, a break is a structure. [00:28:40] Speaker 02: Whereas a reaction system, a reaction is not a structure. [00:28:44] Speaker 02: Now the structure is in response to, but it's not an actual structure. [00:28:52] Speaker 02: I am having a little bit of a hard time. [00:28:54] Speaker 02: Let's put waiver aside, because maybe that ends it. [00:28:58] Speaker 02: But I am having a little bit of a hard time understanding where in claim seven's reaction system limitation is depicted a structure. [00:29:08] Speaker 05: It's through the phrase capable of retracting. [00:29:11] Speaker 05: In other words, you say, well, you're having trouble seeing that. [00:29:13] Speaker 05: A breaking device is not one. [00:29:16] Speaker 05: Breaking is actually just the end result. [00:29:18] Speaker 05: It's the action there. [00:29:19] Speaker 05: There are mechanical parts that do that. [00:29:21] Speaker 05: And the point of that is that there's a well-known class of structures that will break. [00:29:25] Speaker 05: And a retraction is similar. [00:29:26] Speaker 05: A retraction system in this industry is one where you have a mount. [00:29:30] Speaker 05: It's movable. [00:29:31] Speaker 05: And there's an actuator that's going to move it away. [00:29:33] Speaker 02: Which language did you say, in the claim, connotes structure? [00:29:37] Speaker 05: Yes, Your Honor. [00:29:38] Speaker 02: Claim seven. [00:29:44] Speaker 05: Where the reaction system is configured to retract the cutting tool below the work surface. [00:29:49] Speaker 05: The ALJ found that connotes retraction systems. [00:29:53] Speaker 05: And as I read in the patent specification itself, retraction system is used in a way to connote a class of structures. [00:29:59] Speaker 05: That class has a movable component and an actuator. [00:30:02] Speaker 05: And there's many different ways that you could do that [00:30:05] Speaker 05: And therefore, this is a class of structures like a breaking mechanism or a detent mechanism. [00:30:11] Speaker 05: That's the language that the, when their expert looked at it, he didn't say it was 112.6, he said this is something, a person skilled in that reads this, they know this is a thing that is describing the devices that retract. [00:30:22] Speaker 03: So in my head, when I see reaction system in the claim, I should think essentially retraction system. [00:30:28] Speaker 05: No, I said with the phrase where the reaction system is configured to retract. [00:30:33] Speaker 03: You're saying reaction system configured to retract the cutting tool below the work surface. [00:30:38] Speaker 03: You're saying that is describing a retraction system. [00:30:42] Speaker 05: Yes, Your Honor. [00:30:42] Speaker 03: And so therefore maybe a shortcut in my head is when I see reaction system [00:30:48] Speaker 03: configured to retract, I should be thinking retraction system. [00:30:51] Speaker 03: And then you're telling me people at skill in the art understand what a retraction system is or what kind of class of structures a retraction system would be. [00:30:58] Speaker 05: That's right, Your Honor. [00:30:59] Speaker 05: And in fact, that's how the experts looked at it. [00:31:01] Speaker 05: They looked at that entire phrase and said, this is describing retraction systems. [00:31:05] Speaker 05: If I said reaction, I misspoke. [00:31:06] Speaker 05: I meant that phrase that I read to Judge Moore means that you are talking about a class of structures that are retraction systems because of that configured to retract. [00:31:17] Speaker 05: Thank you. [00:31:24] Speaker 04: Your Honor, the word break is known in the mechanical arts as the name for structure. [00:31:33] Speaker 04: There's no evidence in this record that either reaction system or what we're hearing now, retraction system, is known in the art as the name for structure. [00:31:47] Speaker 04: If it was, we would have a completely different case. [00:31:49] Speaker 04: If it said break, if it said detent, [00:31:52] Speaker 04: If it said screwdriver, if it said any of those words that are known as names for structure, then we wouldn't be in a Williamson zone. [00:32:01] Speaker 04: We wouldn't be in a functionality zone. [00:32:03] Speaker 04: But the only evidence in this record is the opinion of one expert that these claims refer to anything that performs the recited function. [00:32:14] Speaker 04: We do have some deposition testimony from another expert, from Sawstop's expert, [00:32:22] Speaker 04: who said a reaction system would be any system that causes a physical action. [00:32:30] Speaker 04: And we have the intrinsic evidence of what SawStop intended to cover. [00:32:36] Speaker 04: And I think a very fair question for me is, why on earth did you not walk into the hearing room at the Markman hearing and argue that this is all means plus function? [00:32:49] Speaker 04: The answer for that [00:32:51] Speaker 04: is the intrinsic evidence which we laid out on pages 13 and 14 of our brief that made it clear that this applicant absolutely was not trying to invoke, and in fact was trying not to invoke, means plus function law. [00:33:10] Speaker 04: And what we have said all along in the supplemental briefing, even in our very initial exchange of claim constructions with Sustop is, [00:33:21] Speaker 04: If you look at the Williamson test, this is means plus function. [00:33:28] Speaker 04: However, in this case, unlike any other case that I'm aware of, there is strong intrinsic evidence that the applicant did not want to invoke means plus function. [00:33:40] Speaker 04: And so we have to decide what to do with the case when under Williamson it would be means plus function, but we know that that was not the applicant's intent. [00:33:50] Speaker 04: Labeling it a 101 problem may be bizarre. [00:33:55] Speaker 04: Figuring out the correct label for what the problem with these claims in has been difficult. [00:34:02] Speaker 04: And the difference in the law today versus when the Supreme Court decided Morse or Halliburton points that up. [00:34:12] Speaker 04: We did argue written description and enablement. [00:34:15] Speaker 04: We said that if what you're claiming is any machine that can do the job, [00:34:20] Speaker 04: invented now, invented before, invented in the future, then inherently you cannot have described every single possible machine to do that job. [00:34:29] Speaker 04: And inherently you cannot have enabled every possible machine to do that job. [00:34:35] Speaker 04: So you could look at it as a Section 112 problem. [00:34:38] Speaker 04: I think that 101 Post-Alice is where the right label is, but if that's the wrong label, then that's [00:34:44] Speaker 03: Just real quick, where in did you argue in a brief to the ALJ that reaction systems should be understood as 112-6, 112-F? [00:34:53] Speaker 04: In the supplemental briefing, we argued every... What page? [00:34:59] Speaker 04: Do you have the page site? [00:35:02] Speaker 02: I think you want to turn to page 1819 of the appendix. [00:35:28] Speaker 04: So we presented to the ALJ exactly the same argument that we're presenting here, which is under the intrinsic evidence. [00:35:35] Speaker 02: I think he asked where in the appendix. [00:35:38] Speaker 02: And I tried to help you by giving you a number if I'm wrong. [00:35:41] Speaker 04: I'm sorry. [00:35:42] Speaker 04: I didn't want to repeat. [00:35:46] Speaker 04: But yes, this is our supplemental claim construction brief where this argument with intrinsic evidence, Williamson, is laid out [00:35:56] Speaker 04: and we included a table with what we thought the corresponding structure was for each of these limitations. [00:36:04] Speaker 03: I should point out something that's not... I don't see anything about reaction system configured to retract the table saw below the work surface here. [00:36:15] Speaker 04: On page 1824 of the appendix, the second table up from the bottom on the 927 patent, we have [00:36:26] Speaker 04: reaction system described as break plus retraction system embodiment with some citations to the patent. [00:36:34] Speaker 04: I look at retraction as part of the function of that claim. [00:36:39] Speaker 04: It says it reacts by retracting. [00:36:41] Speaker 03: This is your arguments of where the corresponding structure is. [00:36:44] Speaker 03: Correct. [00:36:44] Speaker 03: Assuming that these limitations are means plus function, but that's a different question, doesn't it? [00:36:49] Speaker 03: Oh. [00:36:49] Speaker 03: Is it in fact a means plus function? [00:36:51] Speaker 04: In itself, why is it a means plus function? [00:36:55] Speaker 04: of that brief exactly as her honor indicated beginning on page one eight one nine. [00:37:01] Speaker 03: In that section I'm looking for a paragraph that focuses in on reaction system. [00:37:08] Speaker 04: We dealt with the system elements as all being all being in the same bucket because reaction system and [00:37:25] Speaker 04: detection system, both suffer from the same issues. [00:37:29] Speaker 04: So we dealt with all of those, including, by the way, the mechanism having a movable component as being similar claims. [00:37:38] Speaker 00: One final thought. [00:37:39] Speaker 00: Your time is expired. [00:37:42] Speaker 04: Can I have two final thoughts? [00:37:44] Speaker 00: I asked for one. [00:37:45] Speaker 04: All right. [00:37:46] Speaker 04: I think the answer to what case to look at [00:37:53] Speaker 04: in terms of recent cases, maybe the Miyazaki case, which is a Board of Patent Appeals and Interferences case, where the claim was written functionally. [00:38:02] Speaker 04: It did not use the word means. [00:38:05] Speaker 04: The board said, this is not section 112, six paragraph, but it is functional. [00:38:10] Speaker 04: Therefore, ipso facto, it's unpatentable, because it didn't comply with the means plus function requirement of the 52 act. [00:38:19] Speaker 04: Thank you. [00:38:20] Speaker 00: We thank both sides. [00:38:21] Speaker 00: The case is submitted. [00:38:22] Speaker 00: That includes our proceeding for this morning.