[00:00:00] Speaker 03:
19.1341, knee binding versus marker.

[00:00:55] Speaker 00:
Good morning.

[00:00:56] Speaker 00:
My name is Jamie Gallagher, and I represent Knee Binding in the Appellate.

[00:01:01] Speaker 00:
My argument this morning is relatively succinct, and it is directed to the claim language itself.

[00:01:09] Speaker 00:
And Knee Binding made the same argument they're making here on appeal at the board for what the claim term that is in dispute means.

[00:01:20] Speaker 03:
But you didn't pose it as a claim construction argument.

[00:01:24] Speaker 00:
No, not at the beginning.

[00:01:27] Speaker 00:
Partly, it didn't strike me binding that these claim words could be interpreted in a different way than we are proposing.

[00:01:41] Speaker 02:
So while we're on that, am I also right, or is it also right, to think that

[00:01:51] Speaker 02:
While you made the assertion that this claim limitation was one that restricted movement to only movement in the horizontal plane, that you didn't yourself either point to the prosecution history, particularly the explanation that overcame Weigel, or Weigel, or Weigel, or whatever it is.

[00:02:17] Speaker 00:
Yeah, I'm not sure.

[00:02:18] Speaker 02:
And also didn't point

[00:02:21] Speaker 02:
the board to the portion of Marker's district court claim construction brief that appears on its face to adopt your claim construction position.

[00:02:37] Speaker 00:
That is true.

[00:02:43] Speaker 00:
And I think it comes back to the fact that the claim terms themselves

[00:02:48] Speaker 00:
are so clear, and the order of them are very important.

[00:02:52] Speaker 00:
And if we take that proper construction that we're putting forth, the binding wins on validity.

[00:02:59] Speaker 00:
Claim one is valid in light of the two pieces of prior art.

[00:03:05] Speaker 00:
But I think if we look at the claim language itself, and we can find that

[00:03:26] Speaker 00:
I apologize.

[00:03:28] Speaker 00:
It's at appendix 51, and a much clearer portion of that is presented on the first page of our reply brief.

[00:03:37] Speaker 00:
The claim language reads that we're in the three component elements cooperate to limit motion of the lateral release assembly to within a predetermined region within a plane defined by the longitudinal and horizontal axes of the ski.

[00:03:54] Speaker 00:
and that the to limit motion to aspect of that is very restrictive.

[00:03:59] Speaker 00:
It doesn't qualify what motion of the lateral release assembly is being limited.

[00:04:06] Speaker 00:
It's straight to the point to say that to limit motion of lateral release assembly to this claimed region, which is in the plane.

[00:04:16] Speaker 00:
And when you look at a plane that's defined by the horizontal and longitudinal

[00:04:24] Speaker 00:
axes of the ski and a region within that plane, and the lateral release assembly is limited to, if the movement of the lateral release assembly is limited to that region, it's clear that it doesn't have the ability to move vertically or in other aspects.

[00:04:43] Speaker 00:
And the fact that the claim doesn't speak to whether or not it can move in a vertical way or a diagonal way or whatever other direction,

[00:04:52] Speaker 00:
is not all that important in the fact that the claim language itself is not open.

[00:04:56] Speaker 00:
It's closed.

[00:04:57] Speaker 00:
The motion is limited to.

[00:05:02] Speaker 02:
I guess on the language point, which you're focusing on, your view seems to me to be perhaps the more natural one.

[00:05:13] Speaker 02:
But it seems to me not quite to exclude a understanding of this language as meaning

[00:05:21] Speaker 02:
When you are thinking about this plane, the motion is limited to a predetermined area within it.

[00:05:30] Speaker 02:
So that, right, is it that, and?

[00:05:34] Speaker 00:
But I'm not sure, that's the board's seeming determination.

[00:05:39] Speaker 02:
But why just focusing on the words is that unreasonable?

[00:05:43] Speaker 02:
Because we're under our broadest reasonable interpretation standard here.

[00:05:48] Speaker 02:
Unlike in the district court, right,

[00:05:50] Speaker 00:
But we have to start with the words at least.

[00:05:53] Speaker 00:
They were in the claim when the application was filed.

[00:05:55] Speaker 00:
It is the claim that was issued.

[00:05:58] Speaker 00:
And if you go to the specification and look there, there's not any great distinction that says only when you're in the region are you restricted to the claim.

[00:06:09] Speaker 00:
There's nothing there that says that either.

[00:06:12] Speaker 00:
And we could go to the prior art, which is what Marker seems to need to do, define that, well, things move

[00:06:20] Speaker 00:
vertically, so maybe ours did, but that was the point of this invention, was to keep the lateral release assembly limited to that horizontal plane.

[00:06:30] Speaker 00:
And so the fact that the claim language seems to be clear on its face, that we could possibly go out and broaden it to include this concept of when, when the lateral release assembly is in the region it's restricted to the plane, or possibly when it's in the plane it's restricted to the region.

[00:06:48] Speaker 00:
But the claim term doesn't include those.

[00:06:50] Speaker 02:
Right, I guess one perhaps linguistic way of doing that, if you're looking at the claim language, is to rearrange the two clauses so that after assembly, you would put a comma and say, within a plane defined by the longitudinal and horizontal axis of the ski, comma, to within a predetermined region.

[00:07:08] Speaker 00:
Correct.

[00:07:08] Speaker 00:
There are many ways you could move the words around.

[00:07:10] Speaker 00:
You could move the preposition to later in the phrase, and it might mean what the district court, the board came to.

[00:07:19] Speaker 00:
But the way the way they did it they didn't provide a lot of intelligence to us exactly how they made this leap At appendix 23 from saying that our argument that we made was not good the argument that market made we like that We're gonna say that the the claim term means this

[00:07:40] Speaker 00:
that it is seemingly only when it's in the region are we restricted to the claim.

[00:07:46] Speaker 00:
It seems to be a legal error there that is divorced of what the claim terms really mean.

[00:07:55] Speaker 03:
I'm sorry, tell us again what the legal error is.

[00:07:58] Speaker 00:
Well, the final determination of

[00:08:01] Speaker 00:
the board on what they think the claim term means is a legal determination.

[00:08:06] Speaker 00:
And it's Niemann's assertion that the leap that they made from citing the language at the top of Appendix 23 to the next sentence, which I believe just paraphrases the wording of the claim itself without getting to the third sentence after it where they

[00:08:29] Speaker 00:
They state this idea that when it's in the region, it's restricted to the plane.

[00:08:35] Speaker 00:
And that is inconsistent with the claim language.

[00:08:49] Speaker 00:
And it's not surprising that Marco might have pushed for this type of interpretation.

[00:08:56] Speaker 00:
based on the fact that the 298 reference, the German reference, and the Bosemart reference, the US patent, they had pointed in their petition to components of both those inventions in the prior art that they asserted were the lateral lease assemblies of our claim.

[00:09:13] Speaker 00:
But in both cases, those components move vertically outside of that plane.

[00:09:20] Speaker 00:
So if we come to the right conclusion as to what the claim term means,

[00:09:24] Speaker 00:
what we assert is the correct conclusion of what the claim term means.

[00:09:29] Speaker 00:
And you have to look at the claim language if you're going to try to determine what the claim term means.

[00:09:34] Speaker 00:
Then these two references no longer invalidate claim one.

[00:09:40] Speaker 00:
And it's interesting that Mark has made no arguments throughout the process at the board level or even here as to if we're correct on that claim construction, how would these two references still apply?

[00:09:54] Speaker 00:
And so it's our contention that if the proper claim construction is used, that the claim one is valid.

[00:10:05] Speaker 04:
So in other words, your view is that this is a one-issue case.

[00:10:09] Speaker 04:
Your argument, if the board's claim construction is affirmed, then there's no argument that the prior art didn't teach the elements of the claim, and conversely,

[00:10:22] Speaker 04:
If we thought that the board's construction was incorrect, then you would say that we should reverse.

[00:10:28] Speaker 00:
That is correct.

[00:10:29] Speaker 03:
I was just checking in red whether they responded.

[00:10:32] Speaker 03:
You clearly did say that in blue.

[00:10:34] Speaker 03:
I'm just trying to see if there was a pushback, but we can ask a friend.

[00:10:37] Speaker 00:
Yep.

[00:10:41] Speaker 00:
If you have no other questions at this time, I'll reserve my five minutes for robotics.

[00:10:46] Speaker ?:
Thank you.

[00:10:52] Speaker 01:
May I please the court, Anthony Fitzpatrick on behalf of the Appellee Marker Vocal USA.

[00:10:59] Speaker 03:
I'd like to... Just as a housekeeping matter, could you just refer to the final point your friend made, which is if we were to agree with him and not with the board on the claim construction that we had in this case.

[00:11:10] Speaker 01:
I think that as to the first ground of unpatentability based on the German 298 reference, the answer to that would be yes, because that was an anticipation argument.

[00:11:21] Speaker 01:
And so if it were to be construed in that manner, that reference doesn't meet that limitation.

[00:11:27] Speaker 01:
As to the other reference, the second ground of unpatentability, that's an obviousness argument based on the 772 patent in combination with the German reference.

[00:11:37] Speaker 01:
We never had an opportunity because they never raised this expressly as a claim construction argument.

[00:11:42] Speaker 01:
We never really had an opportunity to address this and to make a case that perhaps it might be invalid or unpatentable under that combination.

[00:11:54] Speaker 01:
I would like to make two principal points in my argument this morning.

[00:11:58] Speaker 01:
The first relates to how the appellant's arguments have changed over the course of this proceeding because

[00:12:07] Speaker 01:
I think that that provides important context and background for the new arguments that they're making in this appeal.

[00:12:14] Speaker 01:
And then secondly, obviously, I'd like to address the broadest reasonable interpretation of the wherein clause in light of the specification, and in particular explain how the appellant's position would exclude the sole embodiment that's disclosed in the patent.

[00:12:36] Speaker 01:
They are raising just one issue on appeal, but below they raised several issues.

[00:12:41] Speaker 01:
And one of the arguments they raised related to the 772 ground of unpatentability and in particular, an express clean construction argument that they made that the lateral release assembly and the upper heel housing had to be functionally separate.

[00:13:00] Speaker 01:
And that was part of a broader argument that they were making that in the 867 patent, and we heard it again in my friend's argument, that the claimed device isolates or separates forces.

[00:13:15] Speaker 01:
It separates the vertical force from the lateral force.

[00:13:21] Speaker 01:
The lateral release assembly, as its name suggests, relates to lateral release, and the upper heel housing contains the components that relate to vertical release.

[00:13:33] Speaker 01:
And those include

[00:13:37] Speaker 01:
The heel cup is expressly disclosed in the patent as a component of the upper heel housing.

[00:13:47] Speaker 01:
It's also disclosed as being the only component that applies lateral securing pressure to the ski boot.

[00:13:57] Speaker 01:
And they contended that, in their view, because these two elements were separate, because in the 772 patent, they're not separate,

[00:14:07] Speaker 01:
that therefore the 772 didn't meet that element.

[00:14:12] Speaker 01:
The board rejected that argument.

[00:14:14] Speaker 01:
The board said that the specification discloses that the lateral release assembly and the upper heel housing actually share components.

[00:14:24] Speaker 01:
And the board wrote, this is at appendix nine.

[00:14:27] Speaker 02:
This is not an argument that's being made on appeal, right?

[00:14:31] Speaker 02:
And what followed from it was that because the heel cup moves vertically,

[00:14:34] Speaker 02:
then the lateral assembly and the embodiment is also moving vertically.

[00:14:38] Speaker 02:
And since that's really the only embodiment, this claim construction can't work.

[00:14:43] Speaker 02:
But they did say in their patent owner response that no, I'm going to simplify here, no vertical motion is allowed.

[00:14:52] Speaker 02:
They did that in responding to the principle prior.

[00:14:56] Speaker 02:
They didn't do it in claim construction.

[00:14:58] Speaker 02:
They didn't

[00:15:01] Speaker 02:
held the district court either about what you had said in the Vermont district court in your claim construction or the prosecution history, but they didn't make the point.

[00:15:11] Speaker 02:
So why are we restricted to, I assume you think we're not supposed to consider the prosecution history or what you yourself said in the district court.

[00:15:24] Speaker 02:
Why not?

[00:15:25] Speaker 02:
Why isn't this one of those cases where the issue is preserved and hence

[00:15:29] Speaker 02:
all the arguments that are relevant to the issue can be considered.

[00:15:33] Speaker 01:
Well, because I think, and this is the, for example, the Warsaw orthopedic case that we cited in our brief explains this, the issue is the board didn't have an opportunity to consider all of these arguments.

[00:15:48] Speaker 01:
So the record was not fully developed and the board didn't have an opportunity to talk about this.

[00:15:53] Speaker 02:
Right, but we do have precedent at CCS Fitness or something that this is always a difficult line to draw sometimes.

[00:16:02] Speaker 02:
When the position is asserted, then on appeal you can make additional arguments in support of the same position.

[00:16:11] Speaker 02:
Why is that not this?

[00:16:12] Speaker 02:
The board did actually recognize the position was being asserted because it rejected it at 822 and 23.

[00:16:19] Speaker 02:
So the position was there.

[00:16:22] Speaker 02:
It is, I think, conceded that perhaps the two strongest things that could be said in support of the position were not actually said to the board.

[00:16:32] Speaker 02:
But why can't we consider

[00:16:35] Speaker 01:
It may be that the court, in its discretion, could consider them.

[00:16:38] Speaker 01:
Again, I would submit that the board didn't have an opportunity to look at those issues.

[00:16:43] Speaker 01:
I would say, with respect to the prosecution history, I think that's at best inconclusive, as we expect.

[00:16:49] Speaker 01:
The Weigel?

[00:16:50] Speaker 02:
I think so, Your Honor.

[00:16:51] Speaker 02:
Let me read to you from your own, I think I'm getting this.

[00:16:54] Speaker 02:
This is your own district court Markman brief at 1603.

[00:16:59] Speaker 02:
It becomes clear in the prosecution history that this limitation, this is the one we're talking about,

[00:17:05] Speaker 02:
is a key distinction over the prior art.

[00:17:08] Speaker 02:
Specifically, the patentees argued that the limitation of movement of the lateral release assembly to a plane defined by the longitudinal and horizontal axis of the ski overcame the examiner's objection to Weigel.

[00:17:22] Speaker 01:
I think, Your Honor, that was part of the argument that they made, but it wasn't the entire argument.

[00:17:26] Speaker 02:
That was your argument, I'm sorry.

[00:17:27] Speaker 01:
No, I understand, Your Honor.

[00:17:29] Speaker 01:
I understand, but I guess

[00:17:31] Speaker 01:
My position would be that was part of what they argued, but not the entirety of what they argued.

[00:17:37] Speaker 01:
And they argued.

[00:17:38] Speaker 04:
When you say they argued, what do you mean?

[00:17:40] Speaker 04:
Who are you referring to as they?

[00:17:42] Speaker 04:
I'm sorry, Your Honor.

[00:17:43] Speaker 04:
Knee binding.

[00:17:44] Speaker 04:
But I thought that this was your argument.

[00:17:46] Speaker 04:
So it's not knee binding's argument.

[00:17:48] Speaker 04:
It's your reliance on the prosecution history, your client's reliance.

[00:17:53] Speaker 01:
Perhaps I'm not being clear, Your Honor.

[00:17:56] Speaker 01:
My point is when you look at the prosecution history,

[00:18:01] Speaker 01:
And I recognize that we made this argument in the district court.

[00:18:03] Speaker 01:
But when you look at the prosecution history, in detail, the prosecution history shows that knee binding made more than one argument with respect to this particular reference.

[00:18:18] Speaker 01:
And then what happened was the examiner

[00:18:23] Speaker 01:
moved to a different rejection, deemed the arguments moot, and moved to a different rairat reference.

[00:18:28] Speaker 04:
Just to make sure I understand what you're saying, you're saying that knee binding presented multiple reasons for why the part of the heart was distinguished and the examiner did not adopt the one here about vertical movement.

[00:18:40] Speaker 01:
Correct.

[00:18:41] Speaker 01:
That's my position.

[00:18:43] Speaker 02:
But again, just on that, this is 1145 of the appendix.

[00:18:46] Speaker 02:
This is the legal part.

[00:18:49] Speaker 02:
distinction made by the binding in the in response to the legal rejection.

[00:18:55] Speaker 02:
It's describing legal and says that the locking element there nine allows movement within three spatial dimensions of the lateral release assembly.

[00:19:07] Speaker 02:
and clearly does not limit the lateral release assembly to a plane defined by the longitudinal or horizontal axes of the ski.

[00:19:18] Speaker 02:
Thus, Spiegel does not teach or suggest all elements.

[00:19:21] Speaker 02:
Why is that not a pretty darn

[00:19:24] Speaker 02:
Plane.

[00:19:25] Speaker 02:
Sorry about that.

[00:19:27] Speaker 02:
Plane assertion that we are distinguishing Weagle on the ground that we limit motion, all the motion of this thing, to within the plane, and Weagle doesn't.

[00:19:39] Speaker 01:
Well, again, Your Honor, I would say they go on and have further argument with respect to Weagle.

[00:19:47] Speaker 01:
And they talk in the next paragraph about bearing block 22.

[00:19:54] Speaker 01:
and make an argument that that doesn't limit motion of the lateral release assembly, which is not, in fact, what the examiner said.

[00:20:01] Speaker 01:
So the examiner wasn't relying on bearing block 22 as the linkage element.

[00:20:06] Speaker 01:
And so the record is, I would say, less than 100% clear on this issue.

[00:20:14] Speaker 01:
And so I don't think it rises.

[00:20:15] Speaker 01:
This is the argument that we made in our brief.

[00:20:17] Speaker 01:
It doesn't rise to the level of a disclaimer.

[00:20:19] Speaker 01:
It doesn't rise to the level of an unequivocal statement would be our position.

[00:20:24] Speaker 02:
But you wouldn't need a disclaimer if the language of the claim coupled with the specification still allowed interpretive room.

[00:20:36] Speaker 02:
Then the prosecution history counts for deciding, as a skilled artisan would be reading that, how to resolve the difficulty, what's left open by the other two sources of intrinsic evidence.

[00:20:51] Speaker 01:
Understood and they do have something, you know pretty strong if not conclusive on the claim language and Perhaps you have something decisively strong on the spec Well, and I would like to go to that point because I do think that that is decisive The reality is the wherein clause is directed to limiting motion of the lateral release assembly the the claim

[00:21:21] Speaker 01:
read in full context teaches us that the lateral release assembly is for applying lateral securing pressure to the ski boot.

[00:21:29] Speaker 01:
The only component disclosed in the specification that comes in contact with the heel of the ski boot is the heel cup.

[00:21:36] Speaker 01:
And the heel cup, as shown in figure two of the patent, is part of the upper heel housing.

[00:21:43] Speaker 01:
It applies

[00:21:45] Speaker 01:
It's disclosed in column 9 of the patent as applying lateral securing pressure to the boot.

[00:21:53] Speaker 01:
And it's also disclosed at, so when the boot rotates laterally,

[00:21:59] Speaker 01:
the heel cup moves laterally, and when the boot releases vertically, the heel cup moves vertically.

[00:22:06] Speaker 01:
So here you've got this central component of the lateral release assembly, which moves in both planes.

[00:22:14] Speaker 01:
It moves in the vertical plane, and it moves in the lateral plane.

[00:22:18] Speaker 01:
And so with that broader context, we would submit that the wear-in clause is really directed to these three components

[00:22:29] Speaker 01:
the linkage element, the first surface, and the second surface that cooperate to limit the motion of the lateral release assembly to the predetermined region when the boot is down and when there's motion in the lateral plane.

[00:22:48] Speaker 01:
That's really read in the full context of the claim, read in light of the teaching of the specification.

[00:22:54] Speaker 01:
That is the broadest reasonable construction of the claim language.

[00:22:58] Speaker 02:
And just to, I think maybe we discussed this, but you were not dealing with the broadest reasonable interpretation standard in the district court in Vermont.

[00:23:08] Speaker 01:
Correct.

[00:23:09] Speaker 01:
That's correct.

[00:23:11] Speaker 01:
And I also would just like to point out that just going back to this idea of them changing their position

[00:23:23] Speaker 01:
There's a lot in their current brief about this notion of delinking of movement, separation of vertical and lateral movement.

[00:23:36] Speaker 01:
And really, what I would submit they're trying to do is they're trying to recycle the argument that they made before the board about the lateral release assembly and the upper-heel housing being separate.

[00:23:46] Speaker 01:
They've gone from talking about separate mechanisms to now talking about separate movement.

[00:23:53] Speaker 01:
It's the same concept that permeates their argument now.

[00:23:59] Speaker 01:
But it's really, again, I would submit, unpersuasive under the broadest reasonable interpretation standard.

[00:24:08] Speaker 01:
The board, I think, properly determined at pages 22 and 23, properly determined the scope

[00:24:18] Speaker 01:
of this claim term and properly determined that the claims were unpatentable in light of the prior art.

[00:24:42] Speaker 01:
I do want to address one argument

[00:24:45] Speaker 01:
that my friend raised in his reply brief, which is a new argument relating to the scope of the lateral release assembly.

[00:24:54] Speaker 01:
Kneebinding argues in its reply brief, this is at page 18 of the reply brief, that the lateral release assembly, the language of claim one requires that the structure of the lateral release assembly

[00:25:13] Speaker 01:
be limited so that its own movement in the vertical direction is restricted.

[00:25:18] Speaker 01:
That's a completely new argument.

[00:25:21] Speaker 01:
It never appeared before the board, never appeared in the opening brief.

[00:25:25] Speaker 01:
We would submit under this court's case law, for example, the Smith Klein Beacham case, that that argument is waived.

[00:25:31] Speaker 01:
But in any event, it's unpersuasive.

[00:25:34] Speaker 01:
That position would exclude the heel cup from the lateral release assembly and therefore would exclude the sole disclosed embodiment from the claim.

[00:25:47] Speaker 01:
In closing, Your Honors, I would just like to say the appellant could have, before the board, sought leave to amend its claim.

[00:26:01] Speaker 01:
It never did that.

[00:26:02] Speaker 01:
It could have sought reconsideration.

[00:26:04] Speaker 01:
After the final decision, never did that.

[00:26:07] Speaker 01:
We think the board's proper conclusion was that the broadest reasonable interpretation is as the board determined, and therefore the claims are impassable.

[00:26:18] Speaker 01:
Thank you.

[00:26:32] Speaker 00:
The Hill Cup.

[00:26:36] Speaker 00:
We do not believe the Hill Cup is part of the lateral release assembly.

[00:26:40] Speaker 00:
We've made that clear.

[00:26:42] Speaker 00:
I don't believe that you need to reinterpret or to construe lateral release assembly to see the error in the interpretation of the wearing clause.

[00:26:52] Speaker 00:
The wearing clause was in the claim when it was filed, and it, in our opinion on its words, describe a limitation that is closed on the motion of the lateral release assembly.

[00:27:07] Speaker 00:
And in some way, the circular argument of going into the specification and presuming that just because the heel cup is in contact with the boot and the heel cup is stated clearly that it is applying a retention pressure to the back of the boot if the boot moves up with it.

[00:27:28] Speaker 00:
engages the vertical release mechanism that's in the upper part of the upper housing, the spring mechanism that's in that portion.

[00:27:36] Speaker 00:
And it can be seen in figure two.

[00:27:40] Speaker 02:
Is it really fair to say that that argument about whether the heel cup is part of both of the assemblies, but most importantly, one part of the lateral release assembly is challenged on appeal?

[00:27:59] Speaker 02:
I mean, I thought that overwhelmingly the claim construction argument placed before the board was this one about how the two things have to be separated, have to be separable.

[00:28:13] Speaker 02:
And you haven't appealed that.

[00:28:17] Speaker 02:
And that kind of, I think, amounts to the same question about how to read the spec.

[00:28:24] Speaker 02:
And if the spec is

[00:28:26] Speaker 02:
at least under BRI, essentially decisive, in the absence of some of these other arguments like prostitution history and what they said in district court probably don't matter very much.

[00:28:40] Speaker 02:
Why, though, do we have before us a ground for questioning the board's conclusion that these two assemblies don't need to be physically separated and therefore can't, in the board's view, can share

[00:28:56] Speaker 02:
the heel cup?

[00:28:58] Speaker 00:
I'm not sure, and I may be incorrect, but my understanding is that the board never actually concluded and found that the heel cup was a portion, the heel cup itself was a portion of either of these two components that were being construed at the time, the linkage element in the lateral release assembly, which were argued as being functionally different, that they pose different functions.

[00:29:22] Speaker 00:
they did conclude that the functions were shared and they pointed to the pivot rod and the portion of the lateral release cam 17B, the thin type stem that comes up into the plastic housing and allows the vertical release mechanism of the upper housing to rotate in that order around the pivot mechanism.

[00:29:42] Speaker 00:
But I don't believe that the board ever said that the lateral release cam was part of any particular component in the claim.

[00:29:52] Speaker 00:
And the claim was there originally.

[00:29:54] Speaker 00:
This idea that the only disclosed embodiment is that which is shown by Figure 2, there was another disclosed embodiment if you took their position anyways.

[00:30:07] Speaker 00:
But our position is that the claim one language is the same embodiment as Figure 2, but the claim language was there.

[00:30:14] Speaker 00:
And if you look at the claim language that was filed, and you take our position about what it is saying, the claim language saying that you can't move outside of this horizontal plane,

[00:30:22] Speaker 00:
then the heel cup can't be part of a lateral release assembly, because the heel cup clearly moves up and down.

[00:30:28] Speaker 00:
It can be a component that applies a retention pressure.

[00:30:32] Speaker 00:
But the specification has a lot of language directed to the lateral release 340 in Figure 1, which propagates down into Figure 2, 3, and 4, and is detailed in Figure 3 and 4, as including a lateral release cam.

[00:30:50] Speaker 00:
Lateral lease spring element the release components of all figure two three and four are all located down below outside of the upper seal housing and it's true that there is a part of the lateral lease cam that goes up into that opera housing but

[00:31:12] Speaker 00:
It is conceivable and it is our position that the lateral lease assembly does not include the Hill Cop.

[00:31:19] Speaker 00:
It includes the components articulated in the specification as the lateral lease components that apply that force on the lateral movement of the STEM 17B.

[00:31:32] Speaker 00:
And that translates to the heel cup, but the heel cup doesn't have to be part of the lateral release assembly, which can have the same function of applying a force to the ski boot.

[00:31:44] Speaker 00:
And it does that because it has the spring mechanism in the lower portion that attaches to the lateral release cam 17 and then attaches upward to the stem.

[00:31:53] Speaker 00:
And that's how it translates that.

[00:31:55] Speaker 00:
But they don't have to be the same component.

[00:31:59] Speaker 00:
Thank you.