[00:00:04] Speaker 03:
Nice and easy.

[00:00:08] Speaker 03:
Nice and easy.

[00:00:43] Speaker 03:
The next argued case is number 18, 1136, Sportstar Athletics, Incorporated against the Wilson Sporting Goods Company.

[00:00:54] Speaker 03:
Mr. Edmonds.

[00:00:56] Speaker 00:
May it please the court.

[00:00:58] Speaker 00:
The first issues I'll address are the errors in claim construction.

[00:01:02] Speaker 00:
Then I'll address the errors in summary judgment that flowed from the errors in claim construction.

[00:01:09] Speaker 00:
The first term that the court erred in construing was strap splitter.

[00:01:13] Speaker 00:
In particular, the error was that during the prosecution of the 160 patent, additional limitations were added into Claim 21, which would be Claim 1.

[00:01:28] Speaker 00:
Those are limitations in the claim.

[00:01:30] Speaker 00:
Those are not inherent limitations on every strap splitter.

[00:01:34] Speaker 00:
In fact, during prosecution, the examiner cited Piedchok strap splitter and the applicant

[00:01:42] Speaker 00:
acknowledged it was a strapped splitter and added structural limitations onto the strapped splitter of the 160 claims as part of that response.

[00:01:53] Speaker 02:
You argue that strapped splitter should be defined as a quote, a part of a chin guard assembly separate from the chin cup through which two portions of a chin strap extending in line from the chin cup are separated in an angle.

[00:02:10] Speaker 02:
But the claim language claims something

[00:02:12] Speaker 02:
quote, comprising a specific two-slot structure for allowing the straps to angularly adjust and diverge.

[00:02:22] Speaker 02:
Doesn't that language present at least a minimum of what a strap splitter entails?

[00:02:30] Speaker 02:
Why aren't any of the claim limitations included in your proposed construction?

[00:02:34] Speaker 00:
Well, in the 671 patent,

[00:02:38] Speaker 00:
There is nothing about a first slot and a second slot.

[00:02:42] Speaker 00:
So it just says, a first-strap stupid splitter extending over said first strap so as to cause portions of said first strap to diverge away from each other.

[00:02:53] Speaker 00:
So no, the first and second slot are not part of claim seven, which we're looking at, of the 671 patent.

[00:03:04] Speaker 00:
In terms of claim one of the 160 patent,

[00:03:08] Speaker 00:
There is a requirement of a first slot and a second slot.

[00:03:12] Speaker 00:
Those don't need to be baked into the definition of a strap splitter.

[00:03:16] Speaker 00:
Those are structural limitations that are built into the claim.

[00:03:21] Speaker 00:
The problem with the district court's construction is it took all of these limitations that had been, structural limitations that had been added to the original strap splitter as claimed and then

[00:03:37] Speaker 00:
decided those were part of the strap splitter because of what it referred to as lexicography.

[00:03:41] Speaker 00:
But that was simply just error.

[00:03:43] Speaker 02:
The district court focused on- During prosecution, the patentee presented that strap splitter is defined.

[00:03:54] Speaker 02:
They used that word, defined, as a unitary body in a first slot in space relationship to a second slot.

[00:04:03] Speaker 02:
A fixed bar is formed within.

[00:04:06] Speaker 02:
with the unitary body in position between the first and second slot, wherein the second slot has a length greater than the first slot.

[00:04:14] Speaker 02:
Isn't that lexicography?

[00:04:16] Speaker 00:
No, it's not because the context of the comment was claims 21 and 32 have been amended.

[00:04:26] Speaker 00:
And in these claims, not other claims that didn't have those additional limitations built in, that a strat splitter is defined as

[00:04:36] Speaker 00:
And he said, a unitary body with the first slot in space relation to the second slot.

[00:04:41] Speaker 00:
If there's any definition, it should stop there.

[00:04:43] Speaker 00:
But the word defined in that context just means delineated.

[00:04:47] Speaker 00:
If you look in the rest of the prosecution, and we cited to it, there's also a statement that an interior slot slash pocket defined by the shell.

[00:04:57] Speaker 00:
The helmet is defined by an exterior surface, including a crown area.

[00:05:01] Speaker 00:
The straps are defined as extending through these single slots.

[00:05:05] Speaker 00:
In that context and in the words of patent prosecution and patents, defined is not saying this is a lexicographical definition.

[00:05:14] Speaker 00:
This is saying this is how this is delineated.

[00:05:17] Speaker 00:
This is how this is spelled out.

[00:05:19] Speaker 02:
If we find that the district court correctly construed strap splitter, are the other terms moot?

[00:05:26] Speaker 00:
If you find that the district court correctly construed it, no, they're not moot.

[00:05:32] Speaker 00:
In the first instance,

[00:05:34] Speaker 02:
Why is stop relevant to the case?

[00:05:37] Speaker 00:
So stop is a limitation only in the 671 claims, and she misconstrued that.

[00:05:45] Speaker 00:
If you affirm her claim construction of strap splitter, you can still reverse on doctrine of equivalence, and you can reverse on literal infringement and DOE on the 671.

[00:05:59] Speaker 02:
Does the accused device employ stops or revents?

[00:06:03] Speaker 00:
it employs stops.

[00:06:04] Speaker 00:
It employs what?

[00:06:07] Speaker 00:
Rivet's a stop, among other things, right?

[00:06:09] Speaker 00:
Rivet is a type of stop.

[00:06:11] Speaker 00:
Yes, the accused device has stops.

[00:06:14] Speaker 00:
And our expert report says that the type of stop it employs, one of ordinary skill not understanding to rivet.

[00:06:21] Speaker 00:
So yes, it's still relevant.

[00:06:23] Speaker 00:
Also, the inset continuous slot, or inset slot limitation,

[00:06:31] Speaker 00:
even if you affirm on the construction of strap splitter, then she added in second single continuous opening, and that caused her in part to apparently hold, that was part of her DOE holding, which is erroneous.

[00:06:50] Speaker 00:
So I'll move on to the infringement issues then.

[00:06:55] Speaker 00:
Let me just cover, so in said second slot,

[00:06:59] Speaker 00:
The language she added in single continuous opening is not found in the specification.

[00:07:03] Speaker 00:
Those are just words that she added.

[00:07:05] Speaker 00:
Those are unnecessary words.

[00:07:06] Speaker 00:
They're improper words.

[00:07:08] Speaker 00:
The stop limitation, the specification says it refers to stops, and then it says rivets act as stops.

[00:07:17] Speaker 00:
And in the claims, when you look at claim nine, it just has stops.

[00:07:21] Speaker 00:
And in claim 18, it has the stop comprising rivets.

[00:07:25] Speaker 00:
Stop should not be limited to rivets.

[00:07:28] Speaker 00:
The word plug she just came up with out of thin air, that's not anywhere in the patent.

[00:07:34] Speaker 00:
As to the infringement issues, with respect to little infringement of the 160 patent, so on the construction of strap splitter... If we agree with the district court on strap splitter, how could there be literal infringement?

[00:07:46] Speaker 00:
Well, because all the limitations that she built in the strap splitter, the term strap splitter, are already in claim one of the 160 patent.

[00:07:57] Speaker 00:
What she found was that it didn't have a second slot having a length greater than the first slot.

[00:08:04] Speaker 00:
That was her literal infringement finding.

[00:08:06] Speaker 02:
The accused device has three slots all the same length.

[00:08:09] Speaker 00:
The accused device has, from our point of view, a second slot with a cosmetic non-functional divider.

[00:08:16] Speaker 00:
That's what it has.

[00:08:17] Speaker 00:
And that's really more for DOE, but there's nothing in the claim that excludes being able to add a divider to the second slot, which is what Wilson did.

[00:08:27] Speaker 00:
Her single continuous slot is where she gets into, well, if you have this divider, then the slot's not single and continuous.

[00:08:37] Speaker 00:
So if you reverse on her single and continuous language, which is improper, then summary judgment shouldn't stand on 160 literal infringement.

[00:08:46] Speaker 00:
With respect to 160 DOE, her opinion is just simply one error after another.

[00:08:54] Speaker 00:
First, she applies the wrong test.

[00:08:56] Speaker 00:
She says it has to be the same way.

[00:08:57] Speaker 00:
That's not the test.

[00:08:59] Speaker 00:
She acknowledges that it's the same function.

[00:09:01] Speaker 00:
She acknowledges that there's the same result.

[00:09:03] Speaker 00:
And she says, it's not the same way.

[00:09:05] Speaker 00:
Therefore, it vitiates the claim limitation.

[00:09:08] Speaker 00:
That's not the test.

[00:09:09] Speaker 00:
The test for vitiation would be, you'd look at whether it's substantially the same way, which Sportstar's expert has shown.

[00:09:17] Speaker 00:
It's substantially the same way in that it allows a diverging exit with end belt friction.

[00:09:26] Speaker 02:
in soup present a strap splitter, two slots, second longer than the first, and the added length of the second stop allows for angular divergence via angular adjustability.

[00:09:43] Speaker 02:
The accused device accomplishes its function with three slots equal in size that don't allow for angular adjustability.

[00:09:54] Speaker 02:
How are the ways the structures accomplish their function substantially the same?

[00:10:00] Speaker 00:
So I'll start with the 160 patent, because it's a different answer with respect to the 671 patent.

[00:10:08] Speaker 00:
So with the 160 patent.

[00:10:10] Speaker 02:
While you're talking about it, tell me this too.

[00:10:12] Speaker 02:
Wouldn't finding substantial similarity here vitiate the limitations in the patents in suit that the second slot be longer than the first and its way of functioning

[00:10:24] Speaker 02:
by allowing angular divergence via angular adjustability of the straps?

[00:10:31] Speaker 00:
Well, the district court's holding was that it was vitiated because there wasn't angular adjustability in a second continuous slot.

[00:10:43] Speaker 00:
She didn't hold, and I don't think it would be appropriate for this court to hold now, that there are other elements that would be vitiated.

[00:10:51] Speaker 00:
That should be something that if anything remained in the district court,

[00:10:54] Speaker 00:
and she should address because there are expert opinions covering all of these in terms of why it's substantially the same way.

[00:11:02] Speaker 00:
In terms of her complaint was, it doesn't allow for angular adjustability via the second single slot.

[00:11:14] Speaker 00:
So in other words, the district court is saying, referring to language in claim one, that they have to annually diverge from each other in the second slot.

[00:11:24] Speaker 00:
That's not present in the strap splitter of the 160 patent.

[00:11:29] Speaker 00:
It shouldn't be part of the construction of the strap splitter in the 160 patent.

[00:11:33] Speaker 00:
Excuse me, in the 671 patent.

[00:11:35] Speaker 00:
All that's required in the 671 patent is that portions of the strap diverge away from each other.

[00:11:42] Speaker 00:
That's the only requirement of the strap splitter.

[00:11:45] Speaker 00:
They diverge away from each other, which they simply do.

[00:11:48] Speaker 00:
There's little infringement there.

[00:11:50] Speaker 00:
The other part that she focused on was

[00:11:53] Speaker 00:
annually, and I think you asked about, was being annually adjustable with respect to each other.

[00:11:58] Speaker 00:
That's a limitation in 160 Claim 1 that's not part of the construction of StrapSplitter.

[00:12:06] Speaker 00:
It's not a limitation in 671 Claim 7.

[00:12:12] Speaker 00:
Her analysis was so broad and generalized, she made a generalization about kind of the invention that doesn't align with the claim language in Claim 7.

[00:12:23] Speaker 00:
So her complaint about the angular adjustability in the slot, the angular adjustability is not a requirement of 6.7.1 Claim 1.

[00:12:34] Speaker 00:
That's Claim 7.

[00:12:36] Speaker 00:
That's a requirement of 1.6.0 Claim 1.

[00:12:39] Speaker 00:
And Claim 1 only says they have to diverge in the slot.

[00:12:43] Speaker 00:
It doesn't say they have to be angle adjustable within the slot.

[00:12:46] Speaker 00:
They have to be angle adjustable with respect to each other, but it doesn't say they have to do that within the slot.

[00:12:56] Speaker 00:
Again, she applied the wrong test.

[00:13:00] Speaker 00:
At a minimum, the district court, it should be remanded so she can apply the right test.

[00:13:04] Speaker 00:
The right test should be that, and really, vitiation just means that no reasonable jury could find that they were substantially the same way since she found the function and the result were the same.

[00:13:17] Speaker 00:
The way that was identified by Sportstar's expert, which at a minimum should create a fact issue, is it allows the exit passage of diverging straps

[00:13:26] Speaker 00:
and provides belt friction.

[00:13:28] Speaker 00:
What we have is a non-functional cosmetic divider.

[00:13:31] Speaker 00:
And the evidence that should have been taken in light most favorable to Sportstar was that the divider has no function.

[00:13:41] Speaker 00:
So it must be substantial the same way, because it's non-functional.

[00:13:46] Speaker 00:
Again, the only basis for

[00:13:54] Speaker 00:
her little infringement ruling was a second slot with a length greater than the first slot.

[00:14:00] Speaker 00:
If you correctly find that the strap splitter term in the 671 patent does not have that requirement, which it simply doesn't, the strap splitter of Piaciak, which was acknowledged to be a strap splitter by the examiner and by the inventor, didn't have that.

[00:14:21] Speaker 00:
So if you don't read

[00:14:23] Speaker 00:
improperly read that limitation into the term strap splitter in the literal infringement of the 671 claims must fall.

[00:14:32] Speaker 00:
With respect to the 671, I'm going to go ahead and reserve the rest of my time.

[00:14:41] Speaker 00:
Thank you.

[00:14:42] Speaker 03:
We will save enough rebuttal time.

[00:14:51] Speaker 05:
Mr. Key.

[00:14:51] Speaker 05:
Good morning.

[00:14:52] Speaker 05:
May it please the court?

[00:14:56] Speaker 05:
What Sportstar is trying to do is to broaden the scope of their claims and walk away from the arguments they made and the amendments they made to avoid further rejection.

[00:15:09] Speaker 04:
But isn't the problem that the patent office let them do that?

[00:15:14] Speaker 04:
So they had to put in additional structural limitations in the 160 to get the claims through.

[00:15:21] Speaker 04:
And those aren't a definition of strap splitter.

[00:15:23] Speaker 04:
There are additional elements of that claim.

[00:15:27] Speaker 04:
And the district court for the 671 has read those back into the definition.

[00:15:33] Speaker 04:
And that seemed to me just contrary to the way you do claim construction.

[00:15:37] Speaker 04:
If strap splitter inherently had all those structural limitations, then they wouldn't have needed to put it in.

[00:15:46] Speaker 04:
I understand your point on terms of what happened here.

[00:15:50] Speaker 04:
It just seems like they were able to get a claim through the patent office that's probably going to be obvious when they go back, and it's a big waste of time.

[00:15:59] Speaker 04:
But you can't construe a claim term by referencing other claim limitations, can you?

[00:16:08] Speaker 04:
Otherwise, you render those other limitations superfluous, because it would already be in that strap splitter term itself.

[00:16:17] Speaker 05:
Term Strapsplitter has been a part of this file history since the 774 application, which was rejected three times and abandoned.

[00:16:27] Speaker 05:
And then it came back in the 160.

[00:16:30] Speaker 05:
The 160 was a continuation in part, and they specifically said that in order to get around Pieterzak, we're going to tell you, one, the slots can't be symmetrical.

[00:16:46] Speaker 05:
That was a disclaimer for a strap splitter.

[00:16:48] Speaker 05:
And two, we have additional limitations that must be present.

[00:16:52] Speaker 04:
I get you for all of that.

[00:16:53] Speaker 04:
I think, you know, I'm with you on everything on the 160.

[00:16:57] Speaker 04:
They did all that.

[00:16:58] Speaker 04:
They put it all in.

[00:16:59] Speaker 04:
The problem is they got to go back to the patent office on the 671 and they left all that out.

[00:17:06] Speaker 04:
They just put in Strapsplitter and a couple of little less specific limitations.

[00:17:14] Speaker 04:
And the patent office inexplicably gave them a patent.

[00:17:17] Speaker 04:
So they, at least the way I look at it, Strapsplitter and the 671 has different claim elements.

[00:17:26] Speaker 05:
The Strapsplitter, if it is as broad as Sportstar is arguing right now,

[00:17:33] Speaker 05:
simply is invalid under the priority.

[00:17:35] Speaker 05:
I get you.

[00:17:36] Speaker 04:
That's why it's a little frustrating.

[00:17:38] Speaker 04:
I assume you're going to have an obvious misdefense when it came back.

[00:17:41] Speaker 04:
The patent office never should have granted it after making them narrow it for the 160, but they did.

[00:17:47] Speaker 04:
And to try to get those narrowing limitations from the 160 patent into the 671 via an improper claim construction seems incorrect as a matter of law, even though it may be

[00:18:02] Speaker 04:
the right result.

[00:18:03] Speaker 05:
But when multiple patents, this court has said, when multiple patents come from the same application, the limitations and the prosecution history for that limitation, that strap splitter, again, carries forward to each of those instances of using straps.

[00:18:21] Speaker 04:
That assumes though that strap splitter, they've given it lexicography rather than in the 160s that strap splitter

[00:18:30] Speaker 04:
plus these additional limitations that are in the claim.

[00:18:34] Speaker 04:
Whereas in the 671, they've just said strap splitter.

[00:18:37] Speaker 04:
So it could be a different kind of strap splitter that doesn't have those limitations.

[00:18:42] Speaker 04:
An entirely obvious one, but still a different one.

[00:18:46] Speaker 05:
But in order to avoid rejection under Pieterzak, the inventor, Scheibel, specifically said a strap splitter is defined as... In the 160.

[00:18:57] Speaker 05:
A strap splitter is the same limitation

[00:18:59] Speaker 05:
Those two words and these continuation patents are the same limitation.

[00:19:04] Speaker 05:
A strap splitter is defined as a unitary body with a first slot and space relation to a second slot.

[00:19:12] Speaker 05:
A fixed bar is found in the unitary body.

[00:19:16] Speaker 05:
with the second slot having a length greater than the first slot.

[00:19:19] Speaker 04:
All of that is from the 160 patent, isn't it?

[00:19:22] Speaker 05:
It is the definition of a strap splitter in these continuation patents.

[00:19:26] Speaker 04:
In the 160 patent?

[00:19:27] Speaker 05:
Correct.

[00:19:28] Speaker 05:
In the 160 prosecution history, right?

[00:19:31] Speaker 04:
Is there anything in the 671 patent or the prosecution of the 671 patent that suggests that they meant to adopt the precise same definition?

[00:19:42] Speaker 05:
Yes.

[00:19:43] Speaker 05:
The very same patent examiner.

[00:19:46] Speaker 05:
armed with exactly the same claim element.

[00:19:48] Speaker 05:
And this continuation patent had the very same strap splitter limitation in the 671 patent.

[00:19:56] Speaker 05:
To rule otherwise.

[00:19:57] Speaker 04:
We can't know that he intended to use that definition because he let them use a broader term without those limitations.

[00:20:07] Speaker 04:
I mean, it seems like you're beefier with the patent office that they should never have accepted the 671 patent.

[00:20:15] Speaker 04:
And I think you're right.

[00:20:16] Speaker 04:
that I don't know how we can import limitations into a claim term in a different patent that aren't there.

[00:20:25] Speaker 05:
It's not importing limitations that aren't there, Your Honor.

[00:20:28] Speaker 04:
It is simply... Well, then answer me this.

[00:20:30] Speaker 04:
On the 160 patent, if strap splitter already meant all of those things, why did it specifically call out those additional limitations in the claim language itself?

[00:20:42] Speaker 04:
Then just rely on lexicography and specification.

[00:20:47] Speaker 05:
It can't be known why they claimed the way they drafted it, Your Honor.

[00:20:52] Speaker 05:
All that is clear is they specifically said that they were adding these limitations to move away from Pietro's Act.

[00:21:00] Speaker 05:
And they needed to add these limitations to move away from Pietro's Act.

[00:21:04] Speaker 04:
Was there a rejection in the 671 on Pietro's Act?

[00:21:09] Speaker 05:
It was not.

[00:21:10] Speaker 05:
Because the same examiner was relying on the same prosecution history of the earlier granted patent

[00:21:16] Speaker 05:
It claims the same ancestry as the 160 patent.

[00:21:21] Speaker 05:
That's what this court has repeatedly said in terms of what they are bound by in terms of moving forward in their continuation patents with subsequent patents using the very same limitation.

[00:21:43] Speaker 05:
Even Sportstar argues that the very same definition of strap splitter should be used for the 160 patent and the 671 patent.

[00:21:54] Speaker 05:
The definition that the court adopted and that Wilson suggested is verbatim.

[00:22:00] Speaker 05:
What the inventor said was the definition of a strap splitter, including the second slot.

[00:22:10] Speaker 02:
What about your friend's argument that that's not Lexa Cogger?

[00:22:15] Speaker 05:
I would say that he is simply incorrect, Your Honor.

[00:22:18] Speaker 05:
You can't get better lexicography than the inventor saying, I define Strapped Splitter as that any competitor seeking to avoid the patent, any competitor who wants to understand fairly what is claimed and what is free has to look at the patent and be able to understand, well, if the inventor is saying it's defined as this,

[00:22:44] Speaker 05:
then they have to be able to rely on, yes, it is defined as that.

[00:22:49] Speaker 05:
That's only fair, and that's what the precedent holds.

[00:22:52] Speaker 05:
The second strap splitter allows, or the second slot allows for angular adjustability.

[00:23:00] Speaker 05:
That is a clear function of the patent, and that's what SportStar has in that second slot.

[00:23:08] Speaker 05:
Wilson doesn't have that.

[00:23:13] Speaker 05:
Sportstar argues is that the two straps go through the first slot and then have a cosmetic fill-in between the second and third slots.

[00:23:25] Speaker 05:
It's undisputed in the record that these are symmetrical in length.

[00:23:29] Speaker 05:
That structure can't be a cosmetic fill-in.

[00:23:33] Speaker 05:
It is a structure.

[00:23:35] Speaker 05:
Why does that make a cosmetic fill-in?

[00:23:38] Speaker 05:
Why isn't that the cosmetic fill-in?

[00:23:40] Speaker 05:
Why isn't that the cosmetic fill-in?

[00:23:42] Speaker 05:
It's clear that the court was correct.

[00:23:44] Speaker 05:
This is a very different structure.

[00:23:46] Speaker 02:
You know, if you take this court to the Supreme Court, you're going to have a hard time explaining that colloquy.

[00:23:55] Speaker 03:
You say this is the same examiner.

[00:23:57] Speaker 03:
There are a whole bunch of patents in this series.

[00:23:59] Speaker 03:
They're all focused on the same examiner.

[00:24:03] Speaker 05:
The same examiner reviewed the 160 application as the 671 application.

[00:24:11] Speaker 05:
So he was armed with that prosecution history from the 160.

[00:24:17] Speaker 05:
And Scheibel was bound by what he argued in connection with the 160, because the 671 is a subsequent patent in the same family.

[00:24:28] Speaker 04:
I'm still hung up, and maybe I'm not going to get anywhere on this.

[00:24:32] Speaker 04:
But armed with the knowledge of that prosecution history, what they tried to do, the limitations he'd made them to put in,

[00:24:39] Speaker 04:
Why wasn't his response and why shouldn't his response been, no, you can't go back to this original broad claim language.

[00:24:47] Speaker 04:
I made you limit it to get over whatever that reference is.

[00:24:50] Speaker 04:
You've got to limit it in this one too.

[00:24:52] Speaker 04:
That seems to me like what a reasonable and proper response from the examiner should have been.

[00:24:58] Speaker 05:
Your honor, I believe this because the examiner saw that the inventor had already defined strap splitter

[00:25:07] Speaker 05:
as having two slots, one longer than the other.

[00:25:10] Speaker 05:
It was his expressed definition of the same limitation strap splitter.

[00:25:23] Speaker 01:
What authority says that the examiner has the right to rely on a prior definition?

[00:25:30] Speaker 05:
LK.

[00:25:32] Speaker 05:
LK is one of the decisions from this court which indicates that

[00:25:37] Speaker 05:
When multiple patents derive from the same initial application, the prosecution history regarding a claim limitation in any patent that is issued applies with equal force to subsequently issued patents that contain the same limitation.

[00:25:52] Speaker 05:
And here we're talking about strap splitter.

[00:25:55] Speaker 05:
It is the same throughout those.

[00:25:57] Speaker 04:
But that assumes it has the same limitations.

[00:26:00] Speaker 04:
I know this one should have the same limitations because it's the same thing, but what if they come up with a different kind of strap splitter and they came back and said, straps splitter and had completely different limitations on it.

[00:26:16] Speaker 04:
And it was a different kind of structure.

[00:26:18] Speaker 04:
They wouldn't be bound by their definition in the prior one, would they?

[00:26:21] Speaker 04:
Because they've come up with a new one.

[00:26:23] Speaker 05:
But the inventor had already disclaimed symmetrical slots to get around Pietruzze.

[00:26:30] Speaker 04:
Sure, but let's assume hypothetically that he came up with an entirely different structure that doesn't read on Pietruzze or whatever and wants to patent a strap splitter and chin strap and all that kind of stuff that has a different structure.

[00:26:44] Speaker 04:
Just because in the 160 he defined strap splitter in a certain way doesn't prevent him from trying to

[00:26:52] Speaker 04:
patent a new type of strap splitter with a new structure.

[00:26:56] Speaker 04:
I get that's not what happened here.

[00:26:57] Speaker 04:
I'm with you on that.

[00:26:59] Speaker 04:
But isn't that the problem with reading a very narrow limitation into a subsequent different patent when it could have been claiming a different invention?

[00:27:09] Speaker 04:
Isn't that why the examiner, it was incumbent upon the examiner to reject this because it had the same problems as the first one?

[00:27:18] Speaker 04:
How are we to know that this isn't different than the first one?

[00:27:23] Speaker 05:
Because it's a continuation patent.

[00:27:25] Speaker 05:
It relies on the prosecution history from the earlier patent.

[00:27:30] Speaker 05:
And he had already defined a strap splitter in a very specific way in the earlier patent in this family.

[00:27:36] Speaker 05:
So with respect to the hype

[00:27:39] Speaker 03:
Is it correct that the portion of the specification in the 671 that refers to the strap splitter is the same as in the parenthesis continuation in part?

[00:27:51] Speaker 05:
It's not identical, but it is similar.

[00:27:54] Speaker 03:
Does it enlarge or expand or say we're no longer limited by the length of the differential straps?

[00:28:04] Speaker 05:
It does not attempt at all to expand or create a different structure

[00:28:09] Speaker 05:
It uses, in fact, the identical figures.

[00:28:16] Speaker 05:
Figure 1 from the 160 patent and figure 7 from the 671 patent are identical.

[00:28:29] Speaker 05:
These figures are identical from patent to patent, showing the strap splitter, showing this strap splitter.

[00:28:38] Speaker 05:
Which happens to be incorporated into this device.

[00:28:40] Speaker 02:
And if you weren't listening to me the first time, you have to make a record.

[00:28:45] Speaker 05:
I'm sorry?

[00:28:45] Speaker 02:
You have to make a record.

[00:28:46] Speaker 02:
When you hold something up and show it to the court, you have to say, as I'm showing you in figure such and such from whatever.

[00:28:56] Speaker 02:
And if you hold up a piece of plastic and you talk about it and there's no record of it, it just is a magical nothing.

[00:29:05] Speaker 03:
Would you like a supplemental brief on this point?

[00:29:08] Speaker 02:
No.

[00:29:10] Speaker 05:
In our brief, do I need to cite the page of the brief?

[00:29:14] Speaker 01:
No.

[00:29:14] Speaker 05:
I mean, you can do whatever you want.

[00:29:16] Speaker 05:
You're the lawyer.

[00:29:16] Speaker 05:
In our brief, we argued that figure 1 of the 160 patent and figure 7 of the 671 patent are identical.

[00:29:26] Speaker 02:
You said that, but you were pointing to things.

[00:29:28] Speaker 02:
I'm sorry.

[00:29:30] Speaker 02:
As the court may notice, when I point to figure 7, it is identical.

[00:29:34] Speaker 05:
Thank you, Your Honor.

[00:29:39] Speaker 05:
They are identical.

[00:29:41] Speaker 05:
In the second slot, in order to gain patentability, the inventor Schiebel added a limitation to indicate that the straps diverged from each other in a second slot.

[00:30:02] Speaker 05:
That is not present in the Wilson invention.

[00:30:05] Speaker 05:
In the Wilson strap divider,

[00:30:10] Speaker 05:
their cosmetic fill-in prevents the straps from being angrily adjustable, or from being juxtaposed, or being together at all.

[00:30:25] Speaker 05:
As to stop.

[00:30:28] Speaker 05:
I've only got 30 seconds, so I'll do this quickly.

[00:30:31] Speaker 05:
No, you're over by 30 seconds.

[00:30:33] Speaker 05:
Am I over?

[00:30:34] Speaker 03:
You're over, but you have the last word.

[00:30:37] Speaker 03:
Thank you.

[00:30:38] Speaker 03:
In a minute or so.

[00:30:40] Speaker 05:
Stop is only described in the 671 patent as a structure that protrudes from the strap.

[00:30:47] Speaker 05:
Plug didn't come out of thin air.

[00:30:49] Speaker 05:
Plug was a definition that Sportstar used in its previous litigation, and that's part of the record.

[00:30:58] Speaker 05:
Thank you.

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

[00:31:01] Speaker 03:
Mr. Edmonds?

[00:31:03] Speaker 00:
Thank you, Your Honor.

[00:31:06] Speaker 00:
So to begin with, the

[00:31:09] Speaker 00:
If the court does issue an opinion and does remand it for the proceedings, I would just ask.

[00:31:14] Speaker 00:
There's no need, I understand, comments about maybe the patent officer shouldn't have allowed it.

[00:31:17] Speaker 00:
There are other limitations in Claim 7 that distinguish.

[00:31:20] Speaker 00:
It's not just like they retreated back to a strapped splitter.

[00:31:24] Speaker 00:
For example, the stops are a significant limitation.

[00:31:26] Speaker 00:
So if the case goes back, then we can take a look at their obviousness contentions.

[00:31:33] Speaker 02:
Do you agree that Figure 1 and Figure 7 are exactly the same?

[00:31:39] Speaker 00:
They are the same.

[00:31:40] Speaker 00:
It's a preferred embodiment.

[00:31:41] Speaker 00:
The claim term is not limited by a preferred embodiment.

[00:31:49] Speaker 00:
We should also address the district court's misunderstanding of prosecution history, which contributed greatly to the error in its opinion.

[00:31:56] Speaker 00:
It just misunderstood it.

[00:31:57] Speaker 00:
It misapplied it.

[00:31:58] Speaker 00:
It sent it the wrong way and caused it to believe there needed to be a narrower construction of strap splitter.

[00:32:04] Speaker 00:
That doctrine could become

[00:32:07] Speaker 00:
applicable when you get to DOE, but it's not applicable in claim construction.

[00:32:10] Speaker 00:
Essentially, she believed that if you do a claim-meaning amendment, then I have to construe this terminarily, and that's incorrect.

[00:32:18] Speaker 00:
Back to defined.

[00:32:19] Speaker 00:
Just to be clear, the language that was used was, in these claims that have just been amended, to add these additional limitations, it said it's defined as this.

[00:32:30] Speaker 00:
And the context is delineated.

[00:32:32] Speaker 00:
And when you look at the other references to defined

[00:32:35] Speaker 00:
In each instance in the prosecution, it's being used in that way.

[00:32:38] Speaker 00:
It's not being used in the sense of defined as a dictionary definition.

[00:32:44] Speaker 00:
Just to be clear, so my friend has mixed up this idea of angrily diverging in the second slot.

[00:32:52] Speaker 00:
That is a requirement of the 160 Claim 1.

[00:32:58] Speaker 00:
That is not a requirement of 67

[00:33:01] Speaker 00:
1 claim 1.

[00:33:02] Speaker 00:
It is not a requirement of the court's construction of strap splitter, even if you affirm that.

[00:33:09] Speaker 00:
That's not a basis for summary judgment or for rejecting the 671 claims at a minimum.

[00:33:15] Speaker 00:
Also, angrily adjustable with respect to each other is a limitation in claim 1 of the 160 patent.

[00:33:21] Speaker 00:
It is not a limitation in claim 1 of the 671 patent.

[00:33:24] Speaker 00:
The court's analysis of DOE was just superficial.

[00:33:30] Speaker 00:
And it just muddled together these different elements without sorting out which ones were actually win in each claim.

[00:33:35] Speaker 00:
And it didn't give any acknowledgement to the summary judgment evidence that even if the court's construction was taken, it's true that there's still at least a fact issue as to whether these are substantial the same way.

[00:33:50] Speaker 00:
Again, this is a cosmetic fill-in.

[00:33:55] Speaker 00:
There is the summary judgment evidence that there is

[00:33:59] Speaker 00:
insubstantially different function that it is the same function and that the way is insubstantially different.

[00:34:07] Speaker 00:
The case should be remanded for the proceedings on claim construction and on infringement.

[00:34:13] Speaker 03:
Thank you.

[00:34:13] Speaker 03:
Thank you both.

[00:34:14] Speaker 03:
The case is taken under submission.

[00:34:17] Speaker 03:
That concludes our arguments for this morning.

[00:34:21] Speaker 04:
All rise.

[00:34:23] Speaker 04:
The court is adjourned until tomorrow morning.

[00:34:26] Speaker 04:
It's an o'clock a.m.