[00:00:07] Speaker 03:
five cases on the calendar this morning.

[00:00:12] Speaker 03:
Two patent cases, one from the district court, one from the PTAB, case from the claims court, trademark case from the patent office, employee case from an arbitrator, five different origins.

[00:00:30] Speaker 03:
The trademark and the employee case are submitted on the briefs and will not be argued.

[00:00:36] Speaker 03:
We have three argued cases.

[00:00:39] Speaker 03:
First one is Green Mountain Glass versus Central Bayne, 2018, 1725, and 1784.

[00:00:50] Speaker 03:
Mr. Panikowski.

[00:00:58] Speaker 00:
Good morning, Your Honors.

[00:01:00] Speaker 00:
The district court committed a fundamental claim construction error that requires reversal of the judgment.

[00:01:06] Speaker 00:
The court expunged from the claims a crucial term, unsorted, that the applicant had added by amendment to every claim.

[00:01:14] Speaker 03:
Wasn't there an agreement that unsorted mixed is the same as mixed?

[00:01:20] Speaker 03:
And wasn't that agreement necessitated by the fact that the claim recites unsorted and then recites said mixed color, which had to be the unsorted mixed?

[00:01:35] Speaker 03:
Aren't they the same?

[00:01:36] Speaker 05:
And during pretrial claim construction, didn't you argue the opposite of what you're arguing now?

[00:01:42] Speaker 00:
Your Honor, there was not such an agreement.

[00:01:45] Speaker 00:
And Your Honor, we did not argue the opposite.

[00:01:47] Speaker 00:
At page 4,019 of the joint appendix, there is our original claim construction position.

[00:01:55] Speaker 00:
And in our claim construction brief, we said that the term unsorted mixed-colored glass cullet

[00:02:03] Speaker 00:
along with, quote, said mixed color collet and the mixed color glass collet should be construed to mean the same thing.

[00:02:12] Speaker 00:
And that meaning would give unsorted meaning here.

[00:02:15] Speaker 00:
And in that page, you see that

[00:02:20] Speaker 00:
We underlined said and the before mixed color collate to emphasize that in each and every claim, the term mixed color collate was only being used anaphorically as this court recognized in Baldwin graphic and predicate logic to refer back to the term unsorted mixed color glass collate.

[00:02:39] Speaker 02:
Claim 20, you don't have any of those preparatory words, do you?

[00:02:45] Speaker 00:
Not in the additional dependent limitation of Claim 20, Your Honor, but when you add to Claim 20 the full independent Claim 18, we do have anaphoric uses because Claim 20 is referring to the obtaining step.

[00:03:03] Speaker 00:
And in said obtaining step, as it says in Claim 20, that step is defined by unsorted mixed-color glass collet.

[00:03:11] Speaker 00:
Therefore, since the dependent limitation cannot broaden the scope of that claim vis-a-vis the independent claim, the mixed color glass color referred to in that additional limitation of claim 20 must be referring anaphorically to unsorted mixed color glass color.

[00:03:29] Speaker 00:
Your Honor, not only is the term unsorted present in every claim, but that term was added by the applicant

[00:03:38] Speaker 00:
by amendment is the sole basis for overcoming a prior art rejection.

[00:03:43] Speaker 00:
And in these circumstances, Your Honors, especially in the Mangasoff v. Oracle case, this Court has held that the presumption that every term in a claim must be given meaning is that it's zenith.

[00:03:56] Speaker 05:
In Mangasoff... On page 140 of the Joint Appendix, the 737 spec provides that the patented method can be used

[00:04:07] Speaker 05:
to, quote, decolorize the green component in mixed color color to make amber glass.

[00:04:14] Speaker 05:
Or alternatively, decolorize the amber component in the unsorted mixed color color to make green glass.

[00:04:24] Speaker 05:
Does that mean that green glass and amber glass require different inputs?

[00:04:30] Speaker 00:
No, Your Honor, it doesn't.

[00:04:31] Speaker 00:
The second sentence that you quoted, Your Honor, uses the narrower term unsorted mixed color collet.

[00:04:38] Speaker 00:
The first sentence that you quoted uses the more generic term mixed color collet.

[00:04:43] Speaker 00:
However, unsorted mixed color collet is a subset of mixed color collet.

[00:04:48] Speaker 00:
And this court is held in cases like Union Oil that the specification can contain disclosures that are broader than what's covered by the claims.

[00:04:56] Speaker 00:
And it's also instructive, Your Honor, to see how that

[00:04:59] Speaker 02:
You're saying that in sentence one in that site, that you're referring to a different process, or are you saying those two sentences refer to the exact same thing, you just used unsorted in one and not in the other?

[00:05:15] Speaker 00:
Your honor, it is possible that the specification means the second thing that you said.

[00:05:20] Speaker 00:
When you look at the specification passage here alone, it is not entirely clear whether mixed color collet in the first sentence is being used as a broader term to disclose both sorted and unsorted.

[00:05:33] Speaker 05:
You just argued to me that it was.

[00:05:36] Speaker 00:
Your Honor, the claims refer only to unsorted.

[00:05:40] Speaker 00:
In this passage, the term mixed color collate can be understood in one of two ways.

[00:05:45] Speaker 00:
Either one, it's being used anaphorically just to refer to unsorted, or

[00:05:51] Speaker 00:
Two, it's simply a broader, more generic disclosure that covers unsorted, but then the claims are drawn to something narrower, which is just unsorted.

[00:06:01] Speaker 00:
And I think it's instructive, Your Honor, to see how this second sentence in that passage you quoted got into the specification.

[00:06:08] Speaker 00:
Because in the original specification, the term unsorted was not present at all.

[00:06:14] Speaker 00:
And in the amendment to overcome the prior art rejection, the applicant added

[00:06:20] Speaker 00:
two sentences, one in the abstract and one here that contained the word unsorted.

[00:06:24] Speaker 00:
And what did the applicant say about those sentences, Your Honor?

[00:06:28] Speaker 00:
At page 3139 and 3140 of the Joint Appendix, the applicant said, the title of the invention, the abstract, and the specification of the present application has been amended to clarify that the invention

[00:06:43] Speaker 00:
relates to a method of creating recycled glass products of a particular color from unsorted mixed color glass color.

[00:06:51] Speaker 02:
The district court found that that reference in the specification was reasonably read to be a change that was intended to clarify the prior art because the examiners seemed to misunderstand what was occurring in the prior art.

[00:07:09] Speaker 02:
That's not the same thing as an unambiguous amendment that was intended to disclaim mixed-color complex.

[00:07:19] Speaker 00:
Your Honor, there was an unambiguous amendment here that disclaimed sorted mixed-color complex.

[00:07:25] Speaker 05:
He refers to 3139, but on 3142 and 43 at the bottom and the very top, the amended application explains that the 737 patent is different from prior

[00:07:39] Speaker 05:
because it teaches how to produce recycled glass products from, quote, unsorted mixed color glass collet byproduct of conventional sorting techniques.

[00:07:52] Speaker 05:
I put in sorting.

[00:07:54] Speaker 05:
How does that affect your argument that unsorted mixed color collet is mixed color collet that hasn't been through the sorting process?

[00:08:02] Speaker 00:
Your Honor, that passage is consistent with our argument.

[00:08:06] Speaker 00:
Every single time the applicant distinguished the prior art, the applicant used the term unsorted.

[00:08:12] Speaker 00:
Moreover, regardless of what the applicant intended, unsorted was added to each and every claim.

[00:08:19] Speaker 00:
And what we see the applicant describing at these two pages is that it was not known to use unsorted mixed color glass collet.

[00:08:28] Speaker 00:
Sorted mixed color collet is off the table at this point.

[00:08:31] Speaker 00:
It's not part of the claims anymore.

[00:08:33] Speaker 00:
How do we know that?

[00:08:34] Speaker 00:
One, because every claim was amended to add unsorted.

[00:08:38] Speaker 00:
Two, because at pages 3139 and 3140, the applicant used the magic words the invention relates to and defined it solely in terms of unsorted.

[00:08:48] Speaker 00:
Mixed color glass color.

[00:08:50] Speaker 00:
And in each and every one of the other 16 references to unsorted mixed color color in the remarks, including the one that your honor just quoted from 3142 to 3143, the applicant was making clear that

[00:09:05] Speaker 00:
It was unknown in the prior art only to use unsorted mixed color glass color.

[00:09:10] Speaker 00:
The applicant never said that it was unknown in the art to use sorted mixed color glass color.

[00:09:15] Speaker 00:
And under this court's decisions in technological properties limited versus Huawei and Norian V. Stryker, it is irrelevant whether the applicant could have overcome the prior art rejection by doing less here.

[00:09:29] Speaker 00:
Perhaps the applicant could have just argued and traversed the rejection and said, no, you don't understand.

[00:09:37] Speaker 00:
This is what mixed color means.

[00:09:39] Speaker 00:
This is how it's being used in the claims.

[00:09:41] Speaker 00:
And we don't know what would have happened if that's what the applicant had done.

[00:09:44] Speaker 00:
Maybe we would not be here today because maybe the patent wouldn't have issued.

[00:09:47] Speaker 00:
What the applicant chose to do was add unsorted to each and every claim and to explain in the remarks that the sole basis on which it was distinguishing the prior art was the unsorted limitation and to clarify that the invention relates to the use of unsorted mixed color glass color.

[00:10:05] Speaker 00:
Under this court's precedents in Mangasoft, Aspects, Agilent, and Calcrate, this claim term must be given meaning and the district court erred by failing to give it any meaning in the claims.

[00:10:17] Speaker 05:
On pages 29 to 30 of the blue brief, you argue that Green Mountain only proved that Pardog decolorized any given batch of glass as a whole, not selectively, for the color of the color.

[00:10:35] Speaker 05:
How does that argument square with claim when where the whole batch is mixed color colored?

[00:10:41] Speaker 00:
Your honor, it squares with claim one because even though the entire set of ingredients is ultimately mixed together, the claim requires that the decolorizer selectively decolorize a color of the color.

[00:10:56] Speaker 00:
It doesn't say selectively decolorize a color of the badge.

[00:11:00] Speaker 00:
It has to be targeting a color of the color.

[00:11:02] Speaker 00:
And because green mountain glass didn't present any evidence that tethered the selective decolorization to a color of the coit itself, as opposed to a color that was perhaps present in the batch, this is another reason why there was no substantial evidence of infringement here.

[00:11:18] Speaker 03:
You're into your rebuttal time, but do you want to spend a minute or two on validity?

[00:11:23] Speaker 00:
Um, your honor, would you like to hear about invalidity because otherwise I would prefer to reserve my time for rebuttal.

[00:11:30] Speaker 03:
All right.

[00:11:30] Speaker 03:
Well, we'll hear the other side and then you'll be able to respond.

[00:11:34] Speaker 00:
Thank you, your honor.

[00:11:38] Speaker 03:
Mr. Lampton.

[00:11:51] Speaker 01:
Thank you, and may it please the Court.

[00:11:53] Speaker 05:
To understand the meaning of... On page 66 of the red brief, you assert that the District Court tallied rate factors and declared a final score.

[00:12:04] Speaker 05:
How's that not a mischaracterization of the District Court's analysis?

[00:12:08] Speaker 05:
He didn't count them up and do it that way.

[00:12:11] Speaker 01:
Actually, Your Honor, I think, in fact, the District Court did.

[00:12:14] Speaker 01:
If I could ask the Court to turn to page 35 of the appendix.

[00:12:26] Speaker 01:
The district court says, having assessed and weighed each of the read factors, the court concludes that a reward of enhanced damages is not warranted.

[00:12:33] Speaker 01:
Only three factors favor enhancement, deliberate copying, investigation of good faith belief, and attempts to conceal misconduct.

[00:12:39] Speaker 01:
Most of the factors, and then he repeats a good faith belief.

[00:12:43] Speaker 05:
That's not telling.

[00:12:45] Speaker 05:
No.

[00:12:46] Speaker 05:
This was more sophisticated than that.

[00:12:48] Speaker 01:
Well, Your Honor, if our characterization is not correct on that,

[00:12:52] Speaker 01:
One of the things that we believe is wrong here, and we're on the cross-appeal now, and I'd like to get to the main appeal in a second, but one of the things we think the district court did wrong is the most important factors.

[00:13:02] Speaker 01:
The jury found that this was the most egregious conduct, and the district court didn't disagree.

[00:13:07] Speaker 01:
The jury found that it was especially worthy of punishment.

[00:13:10] Speaker 01:
The district court disagreed.

[00:13:11] Speaker 01:
The district court found that there was copying, no good faith belief in invalidity, no good faith belief in non-infringement, and concealment on top of that.

[00:13:20] Speaker 01:
If this is not a case in which you would want to have enhancement, it's hard to imagine one where you would.

[00:13:25] Speaker 01:
And when you get to the additional factors, the district court actually did commit clear error.

[00:13:29] Speaker 01:
Because, for example, the district court said, hey, remedial efforts count against enhancement here.

[00:13:35] Speaker 01:
But it identified no remedial efforts.

[00:13:37] Speaker 01:
It said the duration of infringement counts against enhancement here.

[00:13:42] Speaker 01:
But it identified nothing that would shorten the period.

[00:13:45] Speaker 01:
It basically, infringement lasted basically the whole duration

[00:13:47] Speaker 01:
of the patent.

[00:13:50] Speaker 01:
And then finally, the district court barely addressed all of the instances of litigation misconduct were brought up.

[00:13:55] Speaker 01:
It addressed only one, the false affidavit.

[00:13:58] Speaker 01:
And even for that one, frankly, I don't think the court's analysis makes sense, just as, yes, there's a false affidavit.

[00:14:04] Speaker 03:
OK, let's go to the main appeal.

[00:14:08] Speaker 03:
Sure.

[00:14:09] Speaker 03:
It predates the effective date of the 737 patent.

[00:14:14] Speaker 03:
Why was that not so?

[00:14:16] Speaker 01:
that Arda was using it before?

[00:14:19] Speaker 01:
Yes.

[00:14:19] Speaker 01:
Yeah.

[00:14:19] Speaker 01:
And I think that there's first, Arda's principal evidence on that was two batch records.

[00:14:25] Speaker 01:
And those batch records from a 1996 file.

[00:14:27] Speaker 01:
So it's an electronic file that post-dates the priority date.

[00:14:31] Speaker 01:
And it's a mysterious folder called old.

[00:14:34] Speaker 01:
No one explained the origins of that.

[00:14:36] Speaker 01:
The jury was entitled to believe that that wasn't really old batches at all.

[00:14:40] Speaker 01:
But even on top of that, the district court gives six different reasons why it didn't anticipate, why it wasn't obvious.

[00:14:46] Speaker 01:
The first one is that the sheet that Dr. Carty relied on, and this is a page 3470, says cullet.

[00:14:53] Speaker 01:
It doesn't say mixed color cullet.

[00:14:55] Speaker 01:
So it doesn't tell you that the RDAW was using mixed color cullet at those two plants in 1993 and 1991.

[00:15:01] Speaker 01:
Just cullet.

[00:15:02] Speaker 01:
Now, Dr. Cardy, their expert, believed that it was mixed color cullet because more than 10% of the input was cullet.

[00:15:09] Speaker 01:
He said, well, if it's more than 10%, it's going to be external, and external is going to be mixed.

[00:15:14] Speaker 01:
But that was wrong on both fronts.

[00:15:16] Speaker 01:
First, there was other evidence showing batches that included as much as 40% or 50% of cullet that was single-color cullet, internal cullet, that was all of one color.

[00:15:28] Speaker 01:
And so the district court correctly said the jury, when the burden is clear and convincing evidence, and here they would have to show that no reasonable juror

[00:15:36] Speaker 01:
that every reasonable juror would be compelled to find that they had met their claim convincing burden.

[00:15:41] Speaker 01:
The district court said the jury could understand that this wasn't mixed color collate at all.

[00:15:45] Speaker 01:
It was just single color collate that was being used in these two batch records.

[00:15:49] Speaker 02:
So what is your best evidence in the record that there was a change in procedure or process from pre-1995 to post-1995?

[00:15:56] Speaker 02:
Because clearly, the basic principle that what infringes also anticipates

[00:16:07] Speaker 02:
Yes.

[00:16:07] Speaker 02:
If it predates.

[00:16:08] Speaker 01:
If it predates, yes.

[00:16:09] Speaker 01:
And I should mention also that the analysis of those batch records didn't show any chrome.

[00:16:14] Speaker 01:
And chrome would be there if it's mixed color color, because green glass is going to have chrome.

[00:16:18] Speaker 01:
And I think there's two things I'd point to, Your Honor.

[00:16:21] Speaker 01:
The first is that while RDoS has this process that hasn't changed, there is admission after admission that RDoS started using cuprous oxide, which is a decolorizer for green, in 96, 97, 98.

[00:16:32] Speaker 01:
That's after.

[00:16:33] Speaker 01:
the time period, after the priority date.

[00:16:36] Speaker 01:
Why are they suddenly using cuprous oxide, the decolorizer for green?

[00:16:40] Speaker 01:
The jury could understand that they're suddenly using cuprous oxide for that because now they're using mixed color cullet, which has a substantial quantity of green, and they need to decolorize that green.

[00:16:49] Speaker 01:
So there's a change there, and it's a change that says every time they say, look, we didn't change our processes, oh yes they did, we moved to cuprous oxide for a very special purpose that helps you deal with mixed color cullet.

[00:17:00] Speaker 01:
The second thing that the evidence is I'd go to the 1994.

[00:17:03] Speaker 02:
Couldn't they enhance their process by dealing better with mixed-color cutlets?

[00:17:08] Speaker 02:
Yeah, sure.

[00:17:08] Speaker 02:
Without having changed?

[00:17:10] Speaker 01:
And this is all before the jury.

[00:17:12] Speaker 01:
And the jury was entitled to decide what was the reason for the change and what they were doing.

[00:17:16] Speaker 01:
But one other thing I'd point to is the 1994 Glass Packaging Institute publication.

[00:17:21] Speaker 01:
And that appears on page 6373 of the record.

[00:17:24] Speaker 01:
That's a 1994 publication.

[00:17:26] Speaker 01:
And it says,

[00:17:28] Speaker 01:
Let's pull that out.

[00:17:30] Speaker 01:
That's the one that says it can't be done.

[00:17:34] Speaker 01:
It says providers basically need it to be separated by color.

[00:17:41] Speaker 01:
Green, flint, amber.

[00:17:44] Speaker 01:
If it's mixed color collet, it becomes landfill.

[00:17:47] Speaker 02:
But they weren't using other decolorizers before.

[00:17:51] Speaker 01:
Yeah, colorizers and decolorizers were known.

[00:17:53] Speaker 01:
But they were used for other purposes.

[00:17:55] Speaker 01:
For example, you would use colorizers and decolorizers if your raw materials had impurities or excess quantities.

[00:18:03] Speaker 01:
So if you're making flint, excess iron could be a problem.

[00:18:06] Speaker 01:
And so you might use selenium to get rid of the excess iron in the raw materials.

[00:18:10] Speaker 01:
Or if you have single color collet you're using and you want to lighten it,

[00:18:14] Speaker 01:
you might use decolorizers to lighten that single.

[00:18:16] Speaker 01:
But the idea of selectively decolorizing, much less selectively decolorizing color to color and colorizing a remaining color, doesn't appear anywhere in the prior art, and it doesn't appear in anything that Ardahl was doing.

[00:18:28] Speaker 01:
And remember, their proof here is that they're already doing it is based largely on those two batch records and then oral testimony.

[00:18:36] Speaker 01:
But oral testimony is entirely suspect because

[00:18:41] Speaker 01:
oral testimony.

[00:18:42] Speaker 01:
Well, it was also conflicting oral testimony.

[00:18:44] Speaker 01:
And it's conflicting oral testimony that the jury was entitled to believe our evidence over their evidence.

[00:18:50] Speaker 01:
And again, the burden here is it has to be so overwhelmingly clear that no reasonable juror could believe that they weren't doing it before.

[00:18:58] Speaker 01:
So overwhelmingly clear that every juror would be compelled to say,

[00:19:01] Speaker 01:
that they met the clear and convincing burden in that defense of prior use.

[00:19:06] Speaker 01:
And also, I also point out that there was an IPR on this and it wasn't even initiated because it wasn't anticipated and it wasn't in the prior art.

[00:19:16] Speaker 02:
Can we go back to the claim construction because I have to say intuitively there's a lot of appeal to their argument that unsorted mixed color cutlet must be something different

[00:19:31] Speaker 01:
Right, and I think, so there's two pieces of this, and I'll start with unsorted and sorted.

[00:19:37] Speaker 01:
To understand what the phrase unsorted mixed color color means, it's helpful to understand what sorted would have meant to somebody in the prior art.

[00:19:44] Speaker 01:
And sorted to people in the prior art, to skilled artisans, would have meant separated into the component colors, separated into flint,

[00:19:52] Speaker 01:
In other words, no longer mixed.

[00:19:54] Speaker 01:
No longer mixed, yes.

[00:19:56] Speaker 02:
So if one talks about... Doesn't your own specifications say that it's virtually impossible to do that?

[00:20:02] Speaker 01:
It's impossible to do it perfectly, but when you talk about sorted single-color culet, that just has trace amounts that are basically de minimis or inconsequential.

[00:20:10] Speaker 01:
So it can't be done perfectly.

[00:20:12] Speaker 01:
But it can be done to the point where sorted single-color culet is basically culet that is effectively of a single color and therefore usable like pure single-color culet.

[00:20:22] Speaker 01:
And I want to point to one place, start out with a specification.

[00:20:26] Speaker 01:
And in particular, column three, it's appendix 144, column three, or 140, column three.

[00:20:32] Speaker 01:
And this actually tells you what skilled artisans would have understood, sorted to mean.

[00:20:36] Speaker 01:
It's around line 40.

[00:20:37] Speaker 01:
And it's talking about the goal of the invention.

[00:20:40] Speaker 01:
And it says, in this manner, recycled glass in mixed colors is rehabilitated to provide material that is substantially as useful

[00:20:49] Speaker 01:
for recycled containers as sorted amber, green glass, or flint glass.

[00:20:53] Speaker 01:
So we have mixed color glass on the one hand, and when it talks about sorted, it says sorted amber, glass, green glass, or flint glass.

[00:21:01] Speaker 01:
So sorted is single color.

[00:21:04] Speaker 01:
When you flip back to the first column at the bottom,

[00:21:09] Speaker 01:
You have the word sorted by color used three times between lines 51 and line 66.

[00:21:13] Speaker 01:
Sorted by color.

[00:21:16] Speaker 01:
Sorted by color is naturally understood to be sorted into the different component colors.

[00:21:21] Speaker 01:
When one sorts mail by zip code, you sort it into the different zip codes or the zip code groups.

[00:21:26] Speaker 01:
You don't have one jumble of zip codes and transform it somewhat into a slightly different jumble of zip codes.

[00:21:33] Speaker 01:
I think that meaning is also reinforced before I turn quickly to the

[00:21:37] Speaker 01:
to the prosecution history.

[00:21:40] Speaker 01:
It's reinforced by the Glass Packaging Institute document that I referred to before.

[00:21:45] Speaker 01:
It makes very clear that when you're talking about sorted, you're meaning sorted into separate colors.

[00:21:50] Speaker 01:
So it says, on the first column, it says, citizens should color sort at the curb.

[00:21:56] Speaker 01:
That's the easiest and best place to separate glass by color.

[00:21:59] Speaker 01:
So sorting is separating the glass by color.

[00:22:02] Speaker 01:
And if you move up, it says glass manufacturers require color that's separated by color, separated into their colors.

[00:22:08] Speaker 01:
So when you talk about sorted glass, it's sorted by color.

[00:22:11] Speaker 01:
When you talk about unsorted glass, that's glass that's not sorted by color.

[00:22:15] Speaker 01:
It's a jumbled mix.

[00:22:16] Speaker 01:
And if you look at the prosecution history, you won't actually see

[00:22:20] Speaker 01:
anything referring to some hybrid between unsorted mixed and sorted single color.

[00:22:26] Speaker 01:
Those are just the two categories that skilled artisans understood.

[00:22:29] Speaker 05:
You could have unsorted single color if it came from a source.

[00:22:37] Speaker 05:
That is, a glass manufacturer which produces window panes, clear window panes, and sends you its fractions.

[00:22:47] Speaker 01:
Yes, so you can have, that's treated as sorted because it all comes in, just like when it's sorted at the curb and the consumers put it out different colors, it's treated as sorted.

[00:22:56] Speaker 01:
It would be unsorted in the sense that?

[00:22:59] Speaker 01:
In the sense of using it as a verb, as an adjective, it hadn't been sorted, but it is sorted in the eyes of last makers.

[00:23:04] Speaker 02:
But I want to... But that's part of my point, is that you admit that you can never perfectly sort.

[00:23:15] Speaker 01:
Yes, and I think that's true, but sorted, single color, color.

[00:23:19] Speaker 02:
So why shouldn't the judge have just gone ahead and said what he said from the beginning, which is this gets its plain and ordinary meaning and let the jury decide to what extent the use was unsorted or not unsorted?

[00:23:34] Speaker 01:
Well, I think the district court understood that the terms unsorted mixed color collet and mixed color collet were used interchangeably.

[00:23:47] Speaker 01:
And there was really no dispute as to what constitutes

[00:23:50] Speaker 01:
at least in our view, mixed color collet.

[00:23:52] Speaker 01:
If it's mixture of colors, it's mixed color collet.

[00:23:55] Speaker 01:
If you only have trace amounts, and that was the testimony from Mr. Boosey, their witness, you only have trace amounts, then you can treat it as single color sorted.

[00:24:02] Speaker 01:
And I want to briefly turn to the rejection, because I think this is an incredibly important point.

[00:24:09] Speaker 01:
First is, on 4,004 to understand the prosecution history, if you turn to page 4,004 of the appendix, we have an explanation of how Arda understood the prosecution history.

[00:24:21] Speaker 01:
And if you take a look, this is the claim chart describing the claim term mixed color collect.

[00:24:26] Speaker 01:
And the last two columns are defendant's proposed construction and the reason for it.

[00:24:31] Speaker 01:
And defendant's proposed construction says, see, unsorted mixed color glass collect.

[00:24:36] Speaker 01:
They're the same thing.

[00:24:38] Speaker 01:
And here's the reason why they give.

[00:24:39] Speaker 01:
Prosecution history, preliminary amendment, e.g.

[00:24:43] Speaker 01:
using unsorted color glass collet, unsorted mixed color glass collet and mixed color glass collet interchangeably.

[00:24:50] Speaker 01:
The prosecution history uses it interchangeably because one skilled in the art would have understood sorted to mean separated by color and unsorted to mean the opposite.

[00:24:58] Speaker 02:
So unsorted doesn't mean anything.

[00:25:01] Speaker 01:
It doesn't add anything except emphasis, and that was important in the rejection because the examiner made a mistake in the rejection, and this is at page 3040.

[00:25:10] Speaker 01:
The examiner said,

[00:25:13] Speaker 01:
You have one of these references, Hirsch, has everything except mixed color collet.

[00:25:18] Speaker 01:
And then in the next sentence, the examiner goes down and says, and since you admit that collet was used in the art, it would be obvious to use mixed color collet.

[00:25:27] Speaker 01:
And the response of the inventor was, effectively, hey, wait a minute.

[00:25:32] Speaker 01:
That's not right.

[00:25:33] Speaker 01:
There's two types of collet here.

[00:25:35] Speaker 01:
There's unsorted mixed color collet and sorted single color collet, and that's on page 3142.

[00:25:42] Speaker 01:
And if you want to see how he was using and how he overcame the rejection, the very next page, 3143, there is a quote, and he says, there is no indication in the prior art that one skilled in the art would know to use mixed color glass collet as a starting material, not unsorted,

[00:26:02] Speaker 01:
not just mixed, and that was what you were saying to overcome the rejection.

[00:26:06] Speaker 01:
If it's mixed, it wasn't used in the prior article.

[00:26:09] Speaker 03:
Is this patent expired?

[00:26:11] Speaker 01:
Pardon?

[00:26:12] Speaker 01:
Is this patent expired?

[00:26:13] Speaker 01:
The patent has now expired, yes, Your Honor.

[00:26:15] Speaker 03:
Is it being enforced against anyone else?

[00:26:18] Speaker 01:
Don't believe so to my knowledge.

[00:26:20] Speaker 01:
No, it isn't it is an expired at this point I think I've run right through my rebuttal time, but if there's no further questions, I'll reserve We'll give you two minutes back only on the crossfield issue if you need it.

[00:26:32] Speaker 03:
Okay.

[00:26:33] Speaker 03:
Thank you.

[00:26:33] Speaker 03:
Mr. Pankowski

[00:26:48] Speaker 00:
Your honors, Green Mountain Glass's claim construction argument depends on the logical fallacy of the excluded middle.

[00:26:56] Speaker 00:
In the passage from the specification on which GMG relies, column three, lines 41 to 44, it is fine to distinguish unsorted mixed color coit from

[00:27:09] Speaker 00:
color sorted collet, sorted amber glass, sorted green glass, sorted flint glass.

[00:27:15] Speaker 00:
But that doesn't mean that there is no distinction between unsorted mixed color collet and sorted mixed color collet.

[00:27:22] Speaker 00:
You can distinguish all day long between unsorted on the one hand and single color on the other hand.

[00:27:28] Speaker 00:
It doesn't mean that those are the only two things in the universe.

[00:27:31] Speaker 00:
And what would a skilled artisan reading this patent in light of this prosecution history believe?

[00:27:37] Speaker 00:
The skilled artisan would see that the original claims all said mixed color color.

[00:27:42] Speaker 00:
And then in response to the examiner's prior art rejection.

[00:27:45] Speaker 00:
Where's your record evidence of that?

[00:27:48] Speaker 00:
Your Honor, the record evidence of what a skilled artisan would believe.

[00:27:53] Speaker 00:
Your Honor, the record evidence is the entire intrinsic record because... Oh, thank you.

[00:27:58] Speaker 00:
Yes, read in light, Your Honor, of this court's case law in cases like Mangasoft v. Oracle, where the court looked at the term local memory devices and said that you have to give that claim term meaning under this well-established presumption in the law.

[00:28:14] Speaker 05:
Your answer was completely useless, General.

[00:28:16] Speaker 00:
I'm sorry, Your Honor.

[00:28:18] Speaker 00:
Your Honor, the specific parts of the intrinsic record that inform the understanding of a skilled artisan here would be, one, each and every claim that contains the term unsorted.

[00:28:30] Speaker 05:
That's not what I asked you.

[00:28:33] Speaker 05:
I asked you what your record evidence was that a skilled artisan understood it that way.

[00:28:40] Speaker 05:
Where's the testimony from a skilled artisan saying,

[00:28:44] Speaker 05:
I understood it that way, as opposed to your expert who wasn't believed.

[00:28:49] Speaker 00:
Your Honor, there was extrinsic evidence put into the record during the follow-up plane construction briefing that the district court received.

[00:28:59] Speaker 00:
There was trial testimony from both Arda's witnesses and third parties and from GMG's witnesses that Arda and

[00:29:08] Speaker 00:
other parties had used sorted mixed-color culling before the priority date of the patent.

[00:29:14] Speaker 00:
Your Honor, we are not relying in this appeal on that extrinsic evidence for the understanding of the skilled artisan.

[00:29:22] Speaker 00:
What we're relying on, Your Honor, is

[00:29:25] Speaker 00:
what the skilled artisan would have believed when it took the intrinsic materials here.

[00:29:29] Speaker 00:
And this court in Phillips, for example, said that in that claim, the term said steel baffles.

[00:29:35] Speaker 00:
And the court said there is therefore a strong presumption that baffles are not inherently made of steel.

[00:29:42] Speaker 00:
Likewise, in Magasoff v. Oracle, the court said there's a strong presumption that local memory device doesn't just mean any memory device.

[00:29:50] Speaker 00:
And when the patentee tried to read local out of the claim, this court said that defect is particularly severe because the term local was added by amendment in order to overcome a prior art rejection.

[00:30:03] Speaker 00:
And our facts, your honor, are on all fours with the Magersoff case, and it would be unprecedented for this court to read this limitation unsorted out of the claim term entirely and leave us in a situation where a skilled artisan, a

[00:30:19] Speaker 00:
party like ARDA could look at this patent, see the term unsorted everywhere, and think that that somehow covered sorted mixed color color.

[00:30:30] Speaker 00:
And that is why, Your Honor, the district court's claim construction error cannot stand.

[00:30:34] Speaker 00:
And it is also undisputed, Your Honor, that once the claim construction error is corrected, judgment as a matter of law is appropriate in ARDA's favor, because as the district court recognized at appendix page 18,

[00:30:47] Speaker 00:
and GMG does not dispute, ARDA used only sorted cullet in its operations, and therefore this court will not even need to remand after correcting the claim construction error, but instead order Jamal for ARDA.

[00:31:00] Speaker 04:
The other side of the coin is accurate too.

[00:31:02] Speaker 04:
If we agree with the district court on its claim construction, we don't need to go any further, correct?

[00:31:08] Speaker 00:
Your Honor, if you agree with the district court on its claim construction, then this court would need to address the other issues that are raised in Arda's appeal because the selectively non-infringement argument and the invalidity argument do not depend on correcting the claim construction error.

[00:31:24] Speaker 00:
In fact, Your Honor, if I may briefly address invalidity, this is a case where... Just a sentence or so.

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

[00:31:32] Speaker 00:
In addition to the claim construction error, this is a case where the patent cannot be both valid and infringed.

[00:31:39] Speaker 00:
It is undisputed that Arda was using mixed color cullet and colorizers and decolorizers in the same way.

[00:31:46] Speaker 02:
But it's not really undisputed, is it?

[00:31:49] Speaker 02:
I mean, that was a primary factual dispute.

[00:31:53] Speaker 00:
Your Honor, it is undisputed based on two facts.

[00:31:56] Speaker 00:
One, the way in which

[00:31:59] Speaker 00:
DMG's expert proved infringement applied to both artists present process and its prior process.

[00:32:09] Speaker 00:
And the part that was undisputed was that there was no change in artist process.

[00:32:14] Speaker 00:
before the priority date of the patent to after the priority date of the patent.

[00:32:19] Speaker 00:
The witness is consistently testified to that continuity, and there was no evidence contradicting the continuity.

[00:32:26] Speaker 00:
There was certain evidence from their expert trying to chip away at the invalidity case, but it remains undisputed that there was no change in the process.

[00:32:34] Speaker 00:
And therefore, if GMG's proof was good enough for infringement, it was also good enough to establish invalidity as a matter of law.

[00:32:40] Speaker 03:
Thank you, Your Honors.

[00:32:43] Speaker 03:
Thank you, Counsel, and Ms.

[00:32:44] Speaker 03:
Huffman.

[00:32:44] Speaker 03:
There's nothing on the cross appeal to respond to.

[00:32:47] Speaker 03:
So the argument is concluded, and we will sort it out.

[00:32:54] Speaker 03:
Thank you, Your Honors.

[00:32:57] Speaker 03:
The case is submitted.

[00:32:59] Speaker 05:
I counted 12, Mr. Panakia.

[00:33:02] Speaker 05:
Your Honor, may I respond?

[00:33:04] Speaker 03:
No, I think the argument is over.

[00:33:05] Speaker 03:
12 sentences.

[00:33:07] Speaker 00:
Thank you, Your Honors.