[00:00:00] Speaker 00:
Our argument is 20-1334.

[00:00:04] Speaker 00:
Mr. Michaud, am I mispronouncing your name or pronouncing it correctly?

[00:00:12] Speaker 01:
That's fine, Your Honor.

[00:00:14] Speaker 00:
All right.

[00:00:14] Speaker 00:
Please proceed.

[00:00:16] Speaker 01:
Thank you, Your Honor.

[00:00:17] Speaker 01:
May it please the Court?

[00:00:19] Speaker 01:
Two very different claims are at issue here, but what's common to them both is that their plain, unambiguous language does not require two or more CAMs.

[00:00:29] Speaker 01:
And the district court's importation of that limitation into the claims was error.

[00:00:36] Speaker 03:
Claim nine.

[00:00:38] Speaker 03:
Mr. Mitchell?

[00:00:38] Speaker 03:
Yes.

[00:00:39] Speaker 03:
This is Judge Wallach.

[00:00:42] Speaker 03:
In the red brief at 16, DePuys says, quoting, Met Idea conceded that it lacked evidence that the first convex portion product

[00:00:55] Speaker 03:
ever of DuPuis' accused product, ever contacts the tibial post?

[00:01:01] Speaker 03:
Do you have evidence that the convex portion of the accused product does contact the tibial post?

[00:01:09] Speaker 01:
We have evidence that there are at least two points of contact, one on the concave surface of the cam and one on the posterior convex portion.

[00:01:24] Speaker 03:
Wait, wait, wait, wait, wait, wait.

[00:01:26] Speaker 03:
The question was convex.

[00:01:29] Speaker 03:
So we can eliminate it.

[00:01:31] Speaker 03:
Is the posterior one convex?

[00:01:34] Speaker 01:
Yes, it is, Your Honor.

[00:01:37] Speaker 03:
I'll ask the other side the same question.

[00:01:45] Speaker 03:
You can go ahead.

[00:01:46] Speaker 02:
Your Honor, this is Calvin Griffith.

[00:01:49] Speaker 02:
Are you intending to ask me now?

[00:01:51] Speaker 02:
Oh, no, no, no, no.

[00:01:52] Speaker 00:
No, no.

[00:01:56] Speaker 01:
So claim 9 recites a structure having more than one physically separate and discontinuous point of cam action as the knee moves from extension to flexion.

[00:02:07] Speaker 01:
It requires at least two points of cam action that engage the post as the knee moves, but it does not require two or more cams.

[00:02:17] Speaker 01:
Claim 1 of the 280 patent is a static picture of the cam mechanism of figure 2D at or before 90 degrees of flexion.

[00:02:25] Speaker 01:
Unlike Claim 9, it does not recite movement of the knee from extension to flexion.

[00:02:31] Speaker 01:
The only contact required by Claim 1 is for the posterior convex surface of the cam to contact the post at the position recited in the claim at or before 90 degrees of flexion.

[00:02:46] Speaker 01:
Contact between other surfaces of the cam structure and the post is neither required nor precluded.

[00:02:53] Speaker 01:
Again, the plain words of the claim do not require two or more CAMs.

[00:03:00] Speaker 01:
The patent specification provides no basis for a requirement of two or more CAMs.

[00:03:05] Speaker 01:
To the contrary, the specification teaches two ways to implement points of CAM action.

[00:03:12] Speaker 01:
By individual distinct CAMs or through a single CAM structure with multiple distinct CAM surfaces, it states

[00:03:21] Speaker 01:
At column four, lines 13 through 16, quote, the structures according to the invention may be individual distinct bars or may be connected to one another, forming points of contact as opposed to distinct structures themselves.

[00:03:38] Speaker 01:
So it in essence says that we could.

[00:03:40] Speaker 04:
I'm sorry, which patent are you, which?

[00:03:43] Speaker 04:
I'm sorry.

[00:03:45] Speaker 04:
Are you looking at the 426?

[00:03:49] Speaker 01:
I'm going to, whenever I refer to the patent, I'll refer to the 426 patent, because the specifications are the same in most respects.

[00:03:58] Speaker 01:
But things appear in different places.

[00:04:02] Speaker 01:
So I'm referring to the 426 patent, Your Honor.

[00:04:06] Speaker 01:
And I'm referring to column 4, lines 13 through 16.

[00:04:13] Speaker 01:
So column 4, lines 13 through 16.

[00:04:16] Speaker 01:
In essence, it says you can use individual CAMs or you can use a single CAM structure with multiple CAMs.

[00:04:26] Speaker 04:
Why isn't the better reading of that is that you can either have all your CAMs connected to each other or you can have individual CAMs?

[00:04:38] Speaker 01:
Well, that's in essence what it says, but if they're connected,

[00:04:43] Speaker 01:
individual CAMs are connected together, it's a single structure.

[00:04:49] Speaker 01:
And then what you're talking about in the claims, both in the claims and in the specification, is points of CAM action as opposed to individual CAMs.

[00:04:59] Speaker 04:
But doesn't SPEC consistently talk about interconnected CAMs?

[00:05:09] Speaker 01:
It does mention interconnected cams at points.

[00:05:15] Speaker 04:
Brief description of the drawings, figure 2D.

[00:05:17] Speaker 04:
Figure 2D illustrates the alternative use of interconnected cams with physically separate contact points.

[00:05:26] Speaker 01:
That's correct.

[00:05:26] Speaker 01:
They are interconnected.

[00:05:27] Speaker 04:
And the description, it talks about, again, referring to figure 2D as showing it's interconnected cams.

[00:05:39] Speaker 01:
They are interconnected, and therefore they're a unitary structure.

[00:05:49] Speaker 00:
There's an interconnected structure described in the specification, and that structure requires multiple CAMs.

[00:06:01] Speaker 01:
It requires multiple points of CAM action, Your Honor.

[00:06:04] Speaker 01:
Multiple CAMs.

[00:06:09] Speaker 01:
Let's just see.

[00:06:19] Speaker 01:
In column 3, lines 52 through 57, it says, although the term CAM or BAR are used to reference the stages of CAM action, it should be understood that the responsible structures

[00:06:35] Speaker 01:
may be implemented using any member or combination of elements operative to provide distinct stages of cooperation with the posterior surface of the superior post.

[00:06:47] Speaker 01:
And so when you combine them into the figure 2D arrangement of the patent, you have a single cam structure with multiple points of cam action.

[00:07:02] Speaker 01:
That's what the patent teaches.

[00:07:08] Speaker 01:
And so if you turn to the prosecution history, there's nothing in the prosecution history that requires the claims to have two or more CAMs.

[00:07:19] Speaker 01:
The clear, unambiguous language of the claims do not require two or more CAMs.

[00:07:26] Speaker 01:
And it was error for the court to import that limitation into the claims.

[00:07:32] Speaker 00:
Well, the language of the claims is a CAM mechanism.

[00:07:37] Speaker 00:
And it doesn't exclusively include them.

[00:07:42] Speaker 00:
So is it not correct that we would go to the specification to get clarity as to whether or not a CAM mechanism includes a single CAM or is limited to multiple CAM?

[00:07:57] Speaker 00:
Right.

[00:07:57] Speaker 01:
I'm just wondering.

[00:07:59] Speaker 01:
CAM mechanism is used in claim one.

[00:08:02] Speaker 01:
It's not used in claim nine, just to make that clear.

[00:08:06] Speaker 01:
And the term cam mechanism is used in a general sense to introduce the specific geometry that's claimed after that.

[00:08:16] Speaker 01:
And if you look, for example, at the brief description of the drawings, it says figure 1a is a drawing which illustrates a prior arc cam and post mechanism in extension.

[00:08:29] Speaker 01:
So that particular drawing has a single cam.

[00:08:37] Speaker 04:
And so the specification... You're not claiming the prior art with your claim, right?

[00:08:49] Speaker 04:
Figure 1 is the prior art.

[00:08:52] Speaker 01:
No, we're not, Your Honor, but I'm just saying that... The title of the patent says multiple CAM, doesn't it?

[00:08:59] Speaker 04:
Multiple CAM plus posterior stabilized knee plus thesis.

[00:09:06] Speaker 01:
That is what the...

[00:09:08] Speaker 04:
The title of the patent is multiple cams, but... And then the district court concluded that your background and invention was essentially criticizing single cams, Harrington and Van Zyl, where there's just a single cam going against the posterior surface.

[00:09:34] Speaker 01:
That's correct, a single individual CAM, but that's not what we're claiming in Claim 9, where we are claiming a unitary structure that has multiple points of CAM action.

[00:09:45] Speaker 01:
And that is supported by the specification with respect to Figure 2D and throughout the specification where, for example, starting with the abstract is the invention.

[00:10:01] Speaker 04:
Figure 2D talks about interconnected CAMs.

[00:10:05] Speaker 01:
That's correct, interconnecting to make a unitary structure.

[00:10:09] Speaker 01:
I don't think that helps you.

[00:10:12] Speaker 01:
Well, I was going to point you to the abstract, which right up front, it says the inventive component preferably includes additional points of cam action usable separately or together.

[00:10:24] Speaker 01:
And then it explains what those various points of cam action do as the knee moves from extension to flexion.

[00:10:34] Speaker 01:
And then down below, the points of CAM action may be implemented using any member or combination of elements operative to provide distinct stages of cooperation with the posterior aspect of the superior post.

[00:10:46] Speaker 01:
So it is not limiting itself to individual CAMs.

[00:10:52] Speaker 01:
The patent specification supports the idea that you can have a unitary CAM structure that has individual points of CAM action.

[00:11:02] Speaker 01:
And that's what's claimed in claim nine.

[00:11:06] Speaker 01:
Claim one is a very different claim in the sense that it's a static picture of the cam at or before 90 degrees of flexion.

[00:11:20] Speaker 01:
And it claims a different aspect of the invention.

[00:11:26] Speaker 01:
The geometric shape of that cam

[00:11:32] Speaker 01:
figure 2D, that it has a convex surface, two convex surfaces separated by a concave surface.

[00:11:43] Speaker 01:
But it doesn't say anything about requiring two or more cams.

[00:11:53] Speaker 01:
I want to move on to the second issue that the district court held that the points of cam action in claim nine

[00:12:02] Speaker 01:
are convex.

[00:12:06] Speaker 01:
The plain language of claim nine of the 426 patent does not require convex points of CAM action.

[00:12:14] Speaker 01:
There is no lexicography or clear disavowal of claim scope that would support the importation of this limitation into the claims, and it was an error for the lower court to do so.

[00:12:26] Speaker 00:
In the IPR, the IPR

[00:12:31] Speaker 01:
In the IPR, we didn't argue that the points of CAM action distinguish over the prior art because they're convex.

[00:12:38] Speaker 01:
The IPR panel construed claim nine without any shape limitation.

[00:12:43] Speaker 01:
So it would have been impossible to distinguish over the prior art on the basis of CAM shape.

[00:12:48] Speaker 01:
Instead, we successfully argued that the unlabeled and undescribed line in the prior art drawing, which is shown at appendix page 2294,

[00:13:00] Speaker 01:
was not a CAM, and that's what the IPR panel held.

[00:13:05] Speaker 01:
So the district courts relied on the IPR.

[00:13:09] Speaker 00:
Wait a minute.

[00:13:10] Speaker 00:
Unless I'm mistaken, and maybe I'm just confused by the different claims here and the different patents, but my understanding is the district court relied on the fact that during the IPR proceeding, the patentee walked through the distinct points of CAM action and then clearly stated, quote,

[00:13:27] Speaker 00:
the distinct point of CAM action are implemented with CAM having convex surfaces.

[00:13:36] Speaker 01:
Is he not correct?

[00:13:39] Speaker 01:
That is correct.

[00:13:40] Speaker 01:
That's what we said.

[00:13:41] Speaker 01:
But that's the implementation.

[00:13:43] Speaker 01:
That's not the invention.

[00:13:46] Speaker 01:
That's not what is claimed.

[00:13:48] Speaker 04:
Wasn't there a different point in the patent owner response where the patent owner said,

[00:13:57] Speaker 04:
to characterize quote unquote the disclosed and claimed invention end quote as having convex cam action surfaces?

[00:14:07] Speaker 01:
No, there were two different statements made in the IPR brief.

[00:14:12] Speaker 01:
One of them had to do with the implementation and the other had to do with the invention.

[00:14:19] Speaker 01:
When it talked about the implementation, it said that the cam surface was convex.

[00:14:24] Speaker 04:
Are you familiar, I'm sorry, are you familiar with the statement I'm referring to where the patent owner response said, quote unquote, the disclosed and claimed invention?

[00:14:38] Speaker 01:
Yes, Your Honor, I am.

[00:14:39] Speaker 04:
And that's what that- Wasn't that described as being a convex cam surface?

[00:14:46] Speaker 01:
No, Your Honor, not in that particular statement.

[00:14:50] Speaker 01:
There were two statements made in that section of the brief.

[00:14:54] Speaker 01:
One of them had to do with the implementation, and the other one had to do with what the invention was.

[00:15:00] Speaker 01:
And where it talked about the invention, it didn't say anything about the shape of the cam.

[00:15:05] Speaker 01:
It was only in the implementation statement where we mentioned that the implementation, the preferred embodiments, all had convex cam shapes.

[00:15:20] Speaker 00:
We all heard the bell on Mr. Michaud, so why don't we hear from Mr. Griffith and we'll restore your three minutes of rebuttal.

[00:15:27] Speaker 01:
Thank you, Your Honor.

[00:15:28] Speaker 00:
Thank you.

[00:15:32] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:15:35] Speaker 02:
Let me start with the answer to Judge Wallach's question about the interior con... Pardon?

[00:15:47] Speaker 02:
with the interior portion of the attuned cam, the convex portion of the attuned cam.

[00:15:56] Speaker 02:
There is no evidence at all that that convex portion contacts the post.

[00:16:02] Speaker 02:
And in supplementing its contention, Medidea dropped the contention that the interior portion contacts the post.

[00:16:12] Speaker 02:
And then in opposing our summary judgment motion,

[00:16:15] Speaker 02:
MED-IDEA never asserted that the interior convex portion is a point of CAM action.

[00:16:22] Speaker 02:
So that contention, that position, that issue is gone.

[00:16:25] Speaker 02:
It's off the table.

[00:16:27] Speaker 02:
Thank you.

[00:16:33] Speaker 02:
Your Honor, the specification of the patents and suit makes it clear and unmistakable that single CAM designs are the problem.

[00:16:40] Speaker 02:
and the invention is having multiple CAMs acting on the posterior side of the post.

[00:16:46] Speaker 02:
Multiple CAMs are the solution, single CAMs are the problem.

[00:16:51] Speaker 02:
Metidea's arguments in the IPR confirm this.

[00:16:54] Speaker 02:
All of the intrinsic and extrinsic evidence supports Judge Sorokin's claim construction, and the judgment of the district court should be affirmed.

[00:17:04] Speaker 02:
The claim terms at issue are CAM mechanism in the 280 patent,

[00:17:08] Speaker 02:
and then the description of the convex, concave, convex portions.

[00:17:14] Speaker 02:
And in the 426 patent, the claim term at issue requires more than one points of cam action as the knee moves from extension to flexion.

[00:17:24] Speaker 02:
Both sides agreed that these terms required construction.

[00:17:29] Speaker 02:
And the specification makes clear that in both cases, the claim terms are describing a mechanism that has two or more cams.

[00:17:37] Speaker 02:
In the 280 patent,

[00:17:38] Speaker 02:
claims, the two convex portions are the CAMs, and in the 426 patent, Claim 9, the two or more points of CAM action are on the two or more CAMs.

[00:17:51] Speaker 02:
Starting with the specification, and as the panel noted, the title of each patent is Multiple CAM Prosthesis.

[00:18:01] Speaker 02:
And in the IPR, Med-IDEA relied on the title for construction of the

[00:18:06] Speaker 02:
multiple points of CAM action limitation.

[00:18:09] Speaker 02:
Consistent with the title, the common specification of the two patents is focused entirely on the use of more than one CAM acting during flexion in a prosthetic knee.

[00:18:21] Speaker 02:
And the specification criticizes the prior ART single-CAM approach.

[00:18:26] Speaker 02:
And, again, in the IPR, MedID itself emphasized that the problem with the prior ART, deficiency was the word it used,

[00:18:36] Speaker 02:
As described in the very part of the specification we cite was that that prior art had only, quote, a single cam contacted the posterior surface of the post.

[00:18:48] Speaker 02:
So that was their characterization of what the specification conveyed.

[00:18:53] Speaker 02:
And that's what they said in the IPR, which is part of the intrinsic record.

[00:18:59] Speaker 02:
After criticizing single cam designs, the specification concludes

[00:19:05] Speaker 02:
quote, the need remains for an improved distal femoral prosthesis having multiple distinct cams contacting a post on its posterior surface.

[00:19:16] Speaker 02:
And in the IPR, Med Idea argued that this very statement, and I'm quoting, conveys to one skilled in the art what is and what is not the disclosed and claimed invention.

[00:19:30] Speaker 02:
And that's at appendix page 1570.

[00:19:33] Speaker 02:
Feminity argued that this specific sentence limited the claims.

[00:19:38] Speaker 02:
And the sole inventor, Dr. Mercini, has even agreed and testified that using just one CAM, quote, would not be inventive.

[00:19:46] Speaker 02:
The disclosed and claimed invention has multiple CAMs contacting the post.

[00:19:52] Speaker 02:
The prosecution history also establishes that the use of multiple CAM members on the posterior surface was the reason for allowance of the 426 claims.

[00:20:02] Speaker 02:
That said, Appendix 2035.

[00:20:04] Speaker 02:
And yet again, in the IPR, MedIdea successfully argued that, and I'm quoting, the examiner's notice of allowance indicates both the applicant's and the examiner's understanding of the scope of Claim 9 and the feature of Claim 9 that distinguishes over the prior art.

[00:20:24] Speaker 02:
That is a clear assertion by MedIdea that the scope of Claim 9 is limited to multiple CAMs

[00:20:31] Speaker 02:
acting on the posterior surface of the post.

[00:20:35] Speaker 02:
And if that were not enough, the PTAP agreed with MEDIDIA that these statements limited the claimed invention.

[00:20:41] Speaker 02:
Much more intrinsic evidence and extrinsic evidence is cited in our brief.

[00:20:47] Speaker 02:
Contrary to MEDIDIA's assertion, the specification never states that the invention may be implemented with a single CAM, not once.

[00:20:56] Speaker 02:
It is hard to imagine a more clear-cut case

[00:21:00] Speaker 02:
of a narrow claim construction, whether it's by disavowal, whether it's by Phillips claim construction, whether it's by prosecution history disclaimer, or even judicial estoppel, whether it's SIMED, whether it's Phillips, whether it's avid diabetes, whether it's personalized medicine, any of the relevant case law in this area one looks at would all dictate the exact same construction

[00:21:28] Speaker 02:
that Judge Sorokin arrived at.

[00:21:33] Speaker 02:
DEPU does not have multiple CAMs.

[00:21:36] Speaker 02:
It has a single CAM.

[00:21:37] Speaker 02:
You can look at the picture in our brief and see that.

[00:21:40] Speaker 02:
There's no doubt about this.

[00:21:43] Speaker 02:
Summary judgment is appropriate in this case, and the district court's judgment should be affirmed.

[00:21:49] Speaker 02:
Unless your honors have any questions to ask, I will surrender the remainder of my time.

[00:22:00] Speaker 00:
Hearing none, thank you.

[00:22:04] Speaker 00:
Let's hear back from Mr. Stone.

[00:22:09] Speaker 01:
I want to address one of the questions about the accused product.

[00:22:17] Speaker 01:
There are in fact two convex portions of the accused product.

[00:22:22] Speaker 01:
One of them contacts the post.

[00:22:25] Speaker 01:
There's also a concave portion of the product

[00:22:29] Speaker 01:
that contacts the post.

[00:22:32] Speaker 01:
Claim 9 requires multiple points of CAM action, which are multiple points of CAM action.

[00:22:41] Speaker 01:
A point of CAM action is defined as the surface of a CAM that contacts the post.

[00:22:50] Speaker 01:
And so the accused product does, in fact, have two points of CAM action.

[00:22:57] Speaker 01:
even though it is possible that what was called the anterior convex portion may not contact the post.

[00:23:10] Speaker 01:
Also, with respect to the idea that somehow we gave up some construction or we gave up a particular infringement contention,

[00:23:24] Speaker 01:
The lower court did not decide that we had done anything wrong with amending our contentions.

[00:23:32] Speaker 01:
And so they were accepted.

[00:23:34] Speaker 01:
We were never put in a position where we actually gave up something at this point, other than by changing our infringement contentions within the

[00:23:52] Speaker 01:
within the time frame that the court allowed us to do that.

[00:23:56] Speaker 01:
I have nothing further unless the court has questions.

[00:24:05] Speaker 00:
Thank you.

[00:24:06] Speaker 00:
We thank both sides and the case is submitted.