[00:00:00] Speaker 04:
2020-2322, Campbell Soup versus Gammon Plus.

[00:00:06] Speaker 04:
Ms.

[00:00:06] Speaker 03:
Quinn, please proceed.

[00:00:09] Speaker 03:
Thank you, Your Honors.

[00:00:10] Speaker 03:
May it please the Court, Claim 17 of the 111 patent must be construed under the broadest reasonable interpretation standard.

[00:00:18] Speaker 03:
The patent trial and appeal board failed to apply that standard, and its construction of Claim 17 should be reversed.

[00:00:25] Speaker 03:
In considering the issues presented by the board's construction, I might refer the court to an annotated version of Fig.

[00:00:32] Speaker 03:
3 from the Prior Art Weizelbaum reference, which is reproduced on page 31 of the appendix in the board's decision.

[00:00:39] Speaker 03:
It's also at page 13 of the Appellee's Brief and page 15 of the Appellant's Reply Brief.

[00:00:47] Speaker 03:
The relevant language of independent claim 17 is directed to a horizontal distance between lower and upper stop structures.

[00:00:55] Speaker 03:
That distance must be greater than a diameter of the products being dispensed from the claimed display rack.

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Dependent claim 18 adds one single further limitation, namely that the horizontal distance between the stop structures must be sufficient to support a returned can resting on top of the forward-most dispensed can.

[00:01:16] Speaker 03:
There are several ways to construe the relevant language of claim 17.

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We, the appellants, proposed construing the claim to mean that the horizontal distance

[00:01:26] Speaker 03:
between at least some portion of the upper and lower stop structures must be greater than the diameter of a product.

[00:01:33] Speaker 03:
So if you look at that, why is the bound figure?

[00:01:35] Speaker 03:
Yes, Your Honor.

[00:01:36] Speaker 04:
To judge more, you explain your construction on page 22 of your brief as a construction of the offset rearwardly from limitation to encompass both A, you say offset having a horizontal distance,

[00:01:55] Speaker 04:
not sufficient to allow the return of a dense dispensed can, and B, offset having a horizontal distance that is sufficient for return of a dispensed can.

[00:02:07] Speaker 04:
That is your construction, correct?

[00:02:09] Speaker 04:
Your proposed construction would allow for offset that would not permit the return of a can.

[00:02:15] Speaker 03:
Correct, Your Honor.

[00:02:17] Speaker 04:
How do you square that with the patent?

[00:02:21] Speaker 03:
So I think that's how the patent needs to be construed, Your Honor, because we have dependent claim 18, and the only limitation of dependent claim 18 is that the horizontal distance is sufficient to allow for return of a can.

[00:02:34] Speaker 03:
So under the doctrine of claim differentiation, independent claim 17 is presumed to be broader than that, which means it would have to... Go ahead.

[00:02:42] Speaker 04:
Let's go to column seven of the patents, please.

[00:02:45] Speaker 04:
Column seven, and I'm going to take you to line about 48.

[00:02:51] Speaker 04:
Do you have that handy?

[00:02:53] Speaker 03:
I'll be there in just one second, Your Honor.

[00:03:00] Speaker 03:
Okay, yes, I'm there, Your Honor.

[00:03:01] Speaker 04:
Okay, it says another advantage of the present invention is the return area or replace stall 110, which is defined between the first and second stops.

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The replace stall

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is further defined as an area in which a product may be replaced if the consumer decides not to purchase.

[00:03:25] Speaker 04:
Doesn't that suggest that the present invention as disclosed in this patent requires the ability to have a return area or replacement area large enough for a can to be put back?

[00:03:39] Speaker 03:
Your Honor, that certainly is an embodiment of the invention, but that's not what Claim 17 says.

[00:03:45] Speaker 04:
Counsel, do you have any cases where we have ever held the words the present invention do not amount to a limitation?

[00:04:00] Speaker 03:
At hand, Your Honor, I do not, but I would say that we have to read the specification in light of the claim language, and there's only one

[00:04:10] Speaker 03:
limitation that separates claim seventeen from claim eighteen and that those two claims should be read to give meaning to the language in both of those claims.

[00:04:18] Speaker 04:
Counsel, we have a whole bunch of cases, and I know because I authored a bunch of them, where we talk about how if the patentee chooses to define his invention and stresses in the specification that the present invention is, which is what this language includes, then that will inform our construction of

[00:04:40] Speaker 04:
the terms in the claims that are relevant and impacted.

[00:04:45] Speaker 04:
I can't find any case where we've ever said, well, you can say the present invention must contain a return can, but we're going to construe the claim as not requiring one.

[00:04:57] Speaker 03:
Well, Your Honor, I'd say the patentee themselves have not argued this, Your Honor.

[00:05:00] Speaker 03:
The patentee seems to recognize that claims 17... Also, the question is a question of law.

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And so as a question of law, we're permitted to look at the intrinsic record.

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I mean, when people argue statutory interpretation to me, do you think I should ignore sections of the statute that counsel's dumb enough not to point to that might otherwise help resolve the case?

[00:05:19] Speaker 03:
I do not, Your Honor.

[00:05:20] Speaker 03:
I understand Your Honor's point.

[00:05:22] Speaker 03:
But again, I think the doctrine of claim differentiation in this case is particularly strong for a number of reasons.

[00:05:28] Speaker 02:
We're dealing with the broadest reasonable interpretation.

[00:05:30] Speaker 02:
I want to ask you about that.

[00:05:31] Speaker 02:
I mean, you agree, of course, that the dependent claim has different language than the independent claim, right?

[00:05:36] Speaker 03:
Yes, Your Honor.

[00:05:37] Speaker 02:
One of the independent claims talks about a particular offset being the diameter of a can and the ability to have a return can placed, right?

[00:05:48] Speaker 02:
I mean, that's a different way of perhaps describing the same thing, but it is a different language, right?

[00:05:54] Speaker 03:
it's different language your honor but i think the point we should be trying to get that different language effect and give it meaning such that claim eighteen is narrower than we can work one of them is that you need to be able to at a return can in there and the other one is that you need to have an offset distance of a certain amount.

[00:06:09] Speaker 02:
It seems to me that you're interpreting the return can limitation as requiring a particular offset.

[00:06:18] Speaker 03:
I'm sorry, I might have lost the beginning of what you were saying.

[00:06:21] Speaker 02:
What we are saying is... What I said was it seems to me that you're interpreting the dependent claim as requiring a particular offset when in fact all it says is that there has to be an ability to return.

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And so I'm wondering, you know, what is your basis for interpreting it that way other than, you know, some sort of ability to get a claim construction that you want for the independent claim?

[00:06:46] Speaker 03:
But what claim 18 says, Your Honor, is that the horizontal distance by which the stop structure of the second chute is offset rearwardly from the stop structure of the first chute, that that horizontal distance is sufficient for returning a can.

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That is the further limitation that claim 18 adds to claim 17.

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Claim 17 talks only about a horizontal distance greater than the diameter of the product, and it doesn't make any mention of that horizontal distance being sufficient to return a product to the rack.

[00:07:16] Speaker 02:
And they are different.

[00:07:17] Speaker 02:
That language is different, right?

[00:07:19] Speaker 02:
Your view is that we should interpret them to be the same thing, even though they have very different functional language in how they're described.

[00:07:28] Speaker 03:
So the functional language is in claim 18.

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That's the limitation of claim 18.

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And then the independent claim says that there has to be an offset that's the diameter of a can.

[00:07:39] Speaker 02:
Correct, Your Honor.

[00:07:42] Speaker 02:
OK.

[00:07:43] Speaker 01:
This is Judge Proce.

[00:07:45] Speaker 01:
Going back to the question of using claim differentiation, I mean, our cases have clearly said that this isn't a rigid rule that must be applied in every circumstance, right?

[00:07:57] Speaker 01:
It's treated as if it's a guide of potential utility.

[00:08:02] Speaker 01:
I mean, anecdotally, I just have a recollection of a lot more cases that I may have been involved with that gave reasons we didn't apply it rather than applied it.

[00:08:13] Speaker 01:
Is your view that it's often or almost always applied?

[00:08:20] Speaker 03:
What I would say, Your Honor, is that it is a rebuttable presumption.

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And it's a rebuttable presumption that is particularly strong in this case for a couple of reasons.

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First, that we are under the broadest reasonable interpretation standard.

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And second, that we have a dependent claim that has just this one limitation separating it from the independent claim.

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And in situations like that, the presumption of claim differentiation

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is court is held as particularly strong.

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And so with the presumption invoked, what we should be looking for then is, and neither the board nor GAAM incited, something in the intrinsic evidence of the patent that would compel a different finding, other than claim differentiation.

[00:08:57] Speaker 04:
Yes, I can see how that language I pointed to in column seven doesn't compel a different finding.

[00:09:01] Speaker 04:
And that's not the only language.

[00:09:03] Speaker 04:
Column one reinforces it when it's talking about the description of the background art.

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Column one, I'll point you to line 43.

[00:09:12] Speaker 04:
Another disadvantage of the Prior Art Gravity Feed Dispenser is the customer's inability to return unwanted products.

[00:09:19] Speaker 04:
If a customer removes, it goes all the way through.

[00:09:22] Speaker 04:
And then at the very end, that whole thing is about the importance of being able to return the can.

[00:09:26] Speaker 04:
And then at the end, thus there remains a need in the art for a compact, easy to assemble, easy to load and reload, multi-shoot Gravity Feed Dispenser having an integrated display.

[00:09:37] Speaker 04:
I guess for me,

[00:09:40] Speaker 04:
I understand and buy your arguments about claim differentiation, but not in the face of a patent specification that says the present invention is having a return feature and that it is a significant advantage distinguished over the prior art.

[00:09:55] Speaker 04:
I mean, I feel like this is sort of the poster child for the case where claim differentiation actually carry water.

[00:10:03] Speaker 03:
Your Honor, it may be that Claim 17, when you read it as a whole, Claim 17 has, you know, seven different claim elements in it.

[00:10:11] Speaker 03:
And Claim 17 arguably could be construed in a way, a device could be constructed according to Claim 17 such that a return is possible, but it's a return that's not attributable to that horizontal distance.

[00:10:26] Speaker 03:
It's not precluding that.

[00:10:28] Speaker 03:
The point that we're making is that claim 18 says that it's the horizontal distance between the stop structures that makes the return possible.

[00:10:35] Speaker 02:
Now, so this is Judge Scholl again.

[00:10:38] Speaker 02:
There's something mechanically a little bit off on this for me, and that's that if the stop structure of the first chute and the stop structure of the second chute were only one can apart, would a can that was placed on top of that first can roll off or would it sit there?

[00:10:55] Speaker 03:
If they were exactly a diameter apart, or just as Gamma has said, one micron bigger, it would roll off.

[00:11:02] Speaker 03:
So what we're looking for in claim 18 is a real world construction where that horizontal distance is sufficiently greater than the diameter of a can that you can return a can to the bottom rack.

[00:11:15] Speaker 02:
How much more does it have to be than a diameter of a can in order for that can not to roll off?

[00:11:22] Speaker 03:
It has to be.

[00:11:23] Speaker 03:
The claim is worded in functional language.

[00:11:25] Speaker 03:
It has to be sufficient to permit return.

[00:11:28] Speaker 02:
I'm just asking mechanical-wise.

[00:11:30] Speaker 02:
I mean, do you have a view on that?

[00:11:32] Speaker 02:
I mean, it seems to me, for example, if you look at figure 6A of the 111 patent, it's not just one diameter apart, the first stop structure and the second stop structure.

[00:11:43] Speaker 02:
It's more like at least a can and a half apart.

[00:11:48] Speaker 03:
And presumably, your Honor, yes.

[00:11:49] Speaker 03:
In a real-world mechanical situation, it's because that's the length that's sufficient.

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to permit the return, as claim 18 reads.

[00:11:57] Speaker 02:
Why isn't the dependent claim of different scope than the independent claim?

[00:12:02] Speaker 02:
I'm sorry, I didn't hear your question, Your Honor.

[00:12:03] Speaker 02:
Then why isn't the dependent claim of different scope than the independent claim?

[00:12:10] Speaker 03:
We believe that it is, Your Honor, because claim 18 requires that the length be sufficient to permit return of a can.

[00:12:20] Speaker 03:
Would the horizontal distance be sufficient to permit return of a can?

[00:12:23] Speaker 02:
Okay, but your argument, as I understand it, is maybe I'm confused now, but I thought your argument was that the independent claim was of the same scope as the dependent claim if we adopted the board's interpretation.

[00:12:38] Speaker 02:
And so that was the reason why there was a problem with the board's interpretation.

[00:12:42] Speaker 02:
And now you're saying they're of different scope.

[00:12:45] Speaker 03:
Your Honor, perhaps I got confused in the questioning.

[00:12:49] Speaker 03:
So we are saying,

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that the, let me try it this way, Your Honor, if I can, with the board's interpretation, and if I could refer the court to the Weisselbaum reference.

[00:13:00] Speaker 03:
So the board found that Weisselbaum does not teach this horizontal limitation.

[00:13:06] Speaker 03:
The only way you get there under the board's interpretation is if you are measuring from the top end of the lower stop structure to the base of the upper stop structure.

[00:13:19] Speaker 03:
because that's where the diameter is not greater than the diameter of a can.

[00:13:24] Speaker 03:
The length isn't greater than the diameter of a can.

[00:13:26] Speaker 03:
If, for example, you were to measure from the bottom inner surface of the lower stop structure to the upper stop structure, then you have a distance that is greater than the diameter of a can and arguably could be sufficient to permit return of a can.

[00:13:42] Speaker 03:
So what the board's interpretation is, the board didn't say this, but I think the way that you can, the only way to reconcile the board's construction with its reading of Weichselbaum is that the entirety of the bottom stop structure must be more than a diameter of a product away from the entirety of the upper stop structure.

[00:13:59] Speaker 03:
And our view is that that is too narrow a construction.

[00:14:03] Speaker 03:
And that if you construe the claim that way, then you are always going to have

[00:14:09] Speaker 03:
a distance that permits return of a can, making claims 17 and 18 commensurate in scope.

[00:14:17] Speaker 03:
If I may, Your Honor, I would like to reserve one minute for rebuttal, although I'm happy to continue answering questions.

[00:14:21] Speaker 04:
No, that's fine.

[00:14:22] Speaker 04:
Please reserve your rebuttal time.

[00:14:24] Speaker 04:
Thank you, Your Honor.

[00:14:26] Speaker 04:
Is it Togeloff?

[00:14:27] Speaker 04:
Am I pronouncing your name right?

[00:14:29] Speaker 00:
No, it's Togeloff.

[00:14:30] Speaker 00:
Yes, Your Honor.

[00:14:31] Speaker 00:
Well, good morning, and may it please the court.

[00:14:35] Speaker 00:
The challenge to the board's decision here is really two separate arguments.

[00:14:41] Speaker 00:
One is a challenge to the construction that the board rejected, which is what Campbell Super argued.

[00:14:47] Speaker 00:
They tried to modify the plain language of the claim by inserting some terms, and then the only evidence they had for that was the extrinsic evidence of their expert who said he thought that one of Ordination Only Art would revise the claim in that way.

[00:15:02] Speaker 00:
That was found to be inadequate, and it's just Legion precedent to show that just an ultimate conclusion like that without any reference to the specification or any of the other aspects of the prosecution is just not supportable.

[00:15:19] Speaker 00:
And the real problem with their construction was that it's not a reasonable construction.

[00:15:23] Speaker 00:
that was shown.

[00:15:24] Speaker 00:
We have actually a drawing on the page 26 of our brief.

[00:15:27] Speaker 01:
Council, can you hear me?

[00:15:28] Speaker 00:
Yes, I can.

[00:15:29] Speaker 00:
Sorry, breaking up a little bit.

[00:15:30] Speaker 00:
Yes, I can, Your Honor.

[00:15:31] Speaker 01:
Can you hear me?

[00:15:32] Speaker 01:
Could you please respond to the point raised with your friend by Chief Judge Moore about the language and the specification and the clarity of that language?

[00:15:41] Speaker 01:
And I guess, could you include in that whether or not you cited this language to the board or whether there was any indication below?

[00:15:51] Speaker 01:
maybe indicative or probative of the result that should lie in the case?

[00:15:56] Speaker 00:
In terms of the construction of the claim, the claim states a distance which is greater than the diameter of the can, which is sort of a mathematical limit of the range of things which would be, actually this isn't quite the limit, it's a mathematical limit of dimension which is

[00:16:14] Speaker 00:
not shown in the prior art, and that's a distinction right there.

[00:16:18] Speaker 00:
It's functionality, it can, on certain circumstances, yes, in almost all the circumstances, it would be a return position, but as we pointed out, if you had a can with a, just if the offset rearward from the front stop was greater than the diameter of a can by a micron, that's so small compared to the variation in cans, it is a practical matter,

[00:16:41] Speaker 00:
there would not be return position.

[00:16:43] Speaker 00:
On the other hand, I guess, you could maybe argue in an infringement case that there was no infringement because of the specification statement, but... Well, this is Judge Moore.

[00:16:51] Speaker 04:
Yes.

[00:16:52] Speaker 04:
I'll be honest.

[00:16:53] Speaker 04:
The Micron argument wasn't one that really appealed to me a lot, but I was really enamored with the language in column seven that where your client says the present invention is the return area.

[00:17:08] Speaker 04:
And then the language in column one where your client's patent explains that this is a huge advantage over the prior art this return area.

[00:17:17] Speaker 04:
And so when the claim itself says offset rearwardly by a diameter greater than the can, why aren't you in that language defining a return area?

[00:17:27] Speaker 00:
We are, but we're defining it with a sort of mathematical limit.

[00:17:31] Speaker 00:
So in other words, in a mathematically perfect universe with absolutely mathematically perfect series of cylinders,

[00:17:38] Speaker 04:
uh... you know if it's off by d t or do you think the actual yes go back uh... if it's off by d x to the rear of the of the of the cannot because the only thing you say is greater than a diameter of a can for the whole micron stuff is is sort of what does it mean to be greater than a diameter of a can of all the patent help us to present invention is having a return area so whatever means to be greater than the dimension of a can of the diameter of a can it has to be greater

[00:18:07] Speaker 04:
permit return.

[00:18:08] Speaker 04:
Full stop.

[00:18:09] Speaker 04:
I don't see how any construction other than that would be reasonable in light of the language and the specs.

[00:18:16] Speaker 00:
i think it's a really important for certain circumstances it does overlap with certain circumstances you're going to have some variation in the size of the cans there's a practical matter of the return position as described in claim eighteen which is a as you pointed out different language it's subject to interpretation that a user can put a can back you know a user won't be able to put a can back because there's a micron or even a thousandth of an inch or whatever a small difference it won't it won't rest

[00:18:42] Speaker 00:
on the on that and that will be the interpretation of claim 18.

[00:18:46] Speaker 00:
The claim differentiation thing here is not a rational approach to this because you don't invalidate one claim to save another claim from being validated.

[00:18:55] Speaker 04:
I just want really clear, real clear clarification on your position.

[00:18:59] Speaker 04:
Is your position that claim 17 would include circumstances in which returning a can were not possible?

[00:19:10] Speaker 00:
but this little language yes i guess you could argue there's a there's some uh... uh... prosecution to stop or waiver in the specification of the exact language but uh... there will be some situations where you have i guess it the variation can size would not like to return it with like i said it was a micron farther back that's not going to have a little edge to to rest a can on it and i guess the the term is resting right at the

[00:19:36] Speaker 00:
It says replace product resting directly on the rear portion of the front of the Ford can.

[00:19:44] Speaker 00:
So resting has kind of got an interpretation capability and I would say resting or teetering, teetering and waiting for the Coriolis acceleration to peel it off the

[00:19:54] Speaker 00:
the front-end would not be resting so uh... the reinterpretation to distinguish the claims um... the construction claim eighteen or is of course a part of the state too because you wanted a different issue on the project to pursue those two points differently and it would never justify just guarding one claims restrictions so uh... you know what basically other than the return position is defined for

[00:20:20] Speaker 00:
the mathematically perfect universe, and then it gets a little bit bigger and bigger for the actual real universe.

[00:20:26] Speaker 00:
And that would, of course, develop eventually to a claim which allows resting of the can, given the situation which claims are applied to.

[00:20:38] Speaker 00:
Which, of course, includes the cans in the combination, so the nature of the cans is part of that definition.

[00:20:49] Speaker 04:
Okay, anything further?

[00:20:53] Speaker 00:
Well, as I said, the broadest reasonable interpretation is the plain reading, which the board adopted, and that's what was done.

[00:21:02] Speaker 00:
The Campbell Soup interpretation was not reasonable, so it couldn't be adopted, and it wasn't supported by any evidence.

[00:21:09] Speaker 00:
Claim differentiation requires just differentiation.

[00:21:11] Speaker 00:
Claims can be construed to do that sort of problem.

[00:21:13] Speaker 00:
And the last point I guess I made is that

[00:21:16] Speaker 00:
This sort of always, the issue of obviousness was also resolved by the board in the earlier decision where it decided that you couldn't combine these references properly to the evidence and show that.

[00:21:28] Speaker 00:
So the combination of what's the bond with NESSA, which is the rejection that they're kind of arguing, is something which has also been rejected for other reasons.

[00:21:37] Speaker 00:
So there's really no reason to disturb this decision at all.

[00:21:41] Speaker 00:
It seems like kind of a completely uncolorable appeal.

[00:21:47] Speaker 04:
Well, I will definitely not agree with you that it is an uncountable appeal, but I will take the conclusion of your argument and let Ms.

[00:21:55] Speaker 04:
Quinn have her rebuttal time.

[00:21:58] Speaker 03:
Thank you, Your Honor.

[00:21:59] Speaker 03:
Going back to the question Judge Moore raised, I'd like to cite two cases to the court, Continental Circuit versus Intel 915 F3rd 788, and Absolute Software versus Stealth Signal 659 F3rd 1121.

[00:22:15] Speaker 03:
both of which stand for the proposition that although, as Judge Moore, you pointed out, the language the present invention can be limiting, it is not necessarily limiting, especially when the invention is not so limited consistently through the spec and when it's not consistent with other parts of the patent like the claim language and the summary of invention.

[00:22:37] Speaker 03:
And so, again, I would just come back around to the fact that this is the broadest... Counsel, your problem is that that's not the case.

[00:22:43] Speaker 04:
The only thing you have in your favor, the only thing, is your claim 18 claim differentiation argument.

[00:22:49] Speaker 04:
And we've in many cases said claim differentiation is sort of the redheaded stepchild of the claim canons of construction.

[00:22:58] Speaker 04:
It's not the strongest one, for sure.

[00:23:00] Speaker 04:
It is rebuttable and rebuttable in light of the spec.

[00:23:03] Speaker 04:
And here you've got a spec that says the present invention is this return in the very background of the invention.

[00:23:09] Speaker 04:
They talk about how important having this return is.

[00:23:13] Speaker 04:
Why is the board's construction really something we ought to reverse in light of all of that?

[00:23:20] Speaker 04:
I mean, if I don't believe claim differentiation is a good enough reason to do it, why should we reverse it?

[00:23:26] Speaker 03:
Two reasons, Your Honor.

[00:23:27] Speaker 03:
First, even when you directly asked counsel what the patentee's position is, he agrees that Claim 17 is intended to read on devices that do not permit a return in the real world.

[00:23:40] Speaker 03:
And second, again, with the broadest reasonable interpretation standard, we have an interpretation that we've proposed that does give reasonable, meaningful scope to the claim, and it's in this context that claim differentiation, albeit a rebuttable presumption, is at its strongest.

[00:23:57] Speaker 04:
Okay, thank you, counsel.

[00:23:58] Speaker 04:
I think that concludes our argument in this particular case.

[00:24:02] Speaker 04:
We'll take it under submission and let's move on to the next case.